Two men have been refused permission by the High Court to bring petitions challenging the result of last month’s marriage equality referendum.
The President of the High Court, Mr Justice Nicholas Kearns, said neither Gerry Walshe nor Maurice J Lyons had met the requirements for bringing a petition as set out in the 1994 Referendum Act. The critical test was whether the issues referred to were such as would have had a material effect on the result as a whole, he said.
This was a high threshold as was appropriate when it was sought to interfere with the will of the people, the judge said.
The high threshold was even more difficult to meet when the yes vote in this referendum exceeded the no vote by almost half a million people, he added.
Arguments by Mr Lyons, a gardener, of Callan, Co Kilkenny, that the amendment conflicted with the Christian ethos of the Constitution, went to the content of the amendment, an area the court had no power to address, he ruled.
Mr Lyons’ case was that this amendment would conflict with other provisions of the Constitution, specifically those relating to the position of women in the home.
However, the court could not get into an analysis of the correctness or otherwise of the people’s decision to pass the amendment and cannot trespass on the will of the people.
Mr Lyons’ claim those citizens who did not vote had in effect voted no and therefore the sovereign people had not approved this amendment was also dismissed.
Arguments people were inadequately informed of the proposal were also rejected.
Dealing with the separate case by Mr Walshe, an electrician of Lisdeen, Co Clare, the judge said none of his arguments met the high threshold.
Mr Walshe based his claim of partiality by the Government in the campaign on photos of yes posters put up by Fine Gael and Labour outside supermarkets in Co Clare but this could not possibly constitute evidence of partiality or wrongful allocation of public funds by the Government, the judge said.
The relevant law was that the Government cannot allocate central funds to advocate a position in a referendum but that did not prohibit the Government campaigning for a yes vote, he said. Issues about the content of ballot papers also could not be raised in this application.
After the ruling, both Mr Walshe and Mr Lyons opposed applications by the State and Referendum Commission for costs against them on grounds that they brought their applications on behalf of the people and in the “national interest”.
However, the judge said there were no exceptional circumstances which would allow the applicants to avoid costs being awarded against them. Mr Justice Kearns said he might have come to a different conclusion had a significant point been raised.
The Constitution provides every family contains a woman and the referendum proposal conflicts with that, Mr Lyons argued. The Preamble to the Constitution couches the Constitution firmly as having a Christian ethos and the “centrality of God’s plan for creation”, involving a man and woman, was denied by this proposed amendment which conflicts with that Christian ethos. There was such a “stark staring mad” tension between the amendment and the Constitution there must be a remedy for that.
Mr Walshe said his case was not “an anti-gay issue” but about a failure to adhere to fair procedures in the referendum process. It was “obvious” monies were used to promote a yes vote in breach of the McKenna principles, he contended.
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