Amendment court challenge

Daith · 22-07-2015 9:14am

who is this wrote: »

I'm open to correction but I'm 99% sure she had actual representation.

Oh could be right. I'm just seeing her as patsy same with these guys but could be wrong.

who is this · 28-07-2015 12:55am

In any case she was openly supported by the No campaign for her challenge.

Her argument was at least valid, even if on the balance of merits (that the booklet could have really deceived such a large proportion of the population into voting No) it couldn't realistically have succeeded.

You can't say the same for either of these two. Their High Court challenge wasn't even refused. Unless my understanding is flawed, they were refused permission to even bring a challenge because their case is so clearly lacking in merits.

If the No campaign are really supporting these two (I wouldn't put it past them, but I do really have my doubts), they should have arguments that have a chance (however small) of doing more than just wasting time and money.

Peregrinus · 28-07-2015 2:35am

Financing these cases really would be throwing good money after bad, and most of the leaders in the 'No' campaign will see that very clearly. If they're getting any support at all from the 'No' campaign I expect it to be in the form of cheerleading, not cheques.

daithi84 · 28-07-2015 5:05pm

They know they have no case, its a religious funded delaying mechanism thats all. Hopefully the courts will dismiss it. As evident from the plaintiff in the children's referendum case she was delighted that she got to delay the implementation of the referendum by 2 years.

I think someone referenced the US supreme court earlier, they have a federal system which is different to our system. They have an overarching federal constitution and then each state is run like mini countries inside the bigger collective state. The supreme court ruled that equal marriage was a constitutional right under the 14th amendment that entitles all american citizens to equal protection under the law, this therefore overruled any anti gay legislation in some states.

The court case here is a challenge to the validity to a referendum which was voted by the people, once a referendum is signed into law it cannot be challenged or removed without a further referendum, therefore they are trying to challenge the validity of the referendum process and stop it being signed into law. Once something is in the constitution it has to be accompanied by legislation enforcing those rights, the referendum changed the constitution so that a persons sex is not a barrier to marriage however there is legislation that says otherwise, once the referendum is put into law then the legislation will be changed to show the change in the constitution. In regards to the senead referendum way back when regarding different universities, any citizen was capable at any stage post referendum to challenge the government through the courts to enforce the government to change the legislation as it was contrary to the constitution, however nobody was too arsed.

SpaceTime · 28-07-2015 8:09pm

The issue with the Seanad one is that the wording allows the government to, if it so feels like it, enable it or not.

Unless you could convince the Supreme Court that there's an implied right, there is nothing to challenge. All it did was give the government options to legislate.

It's an absolute disgrace that no government since 1979 ever did though and it shows how they really don't care about Seanad reform.

I don't think the overwhelming majority in that referendum (by far the largest majority of any referendum) intended it to be parked for 35 years!

2. Provision may be made by law for the election, on a franchise and in the manner to be provided by law, by one or more of the following institutions, namely:
i. the universities mentioned in subsection 1 of this section,
ii. any other institutions of higher education in the State, of so many members of Seanad Éireann as may be fixed by law in substitution for an equal number of the members to be elected pursuant to paragraphs i and ii of the said subsection 1.

The marriage equity referendum gave a much more unambiguous right that would override any legislation to the contrary:

Marriage may be contracted in accordance with law by two persons without distinction as to their sex.

That gives an absolute right to marry regardless of the parties' sex. So, without a referendum to remove it, even if the government was very right wing, it can't remove or undermine that right.

who is this · 29-07-2015 1:02am

daithi84 wrote: »

They know they have no case, its a religious funded delaying mechanism thats all.

Have you read any of the reports on it? Hard as it may be to believe, they clearly are so deluded that they do think they have a case.

daithi84 · 29-07-2015 5:05pm

who is this wrote: »

Have you read any of the reports on it? Hard as it may be to believe, they clearly are so deluded that they do think they have a case.

All those religious loonies think they are legitimate. The case is really clutching at straws. The arguments were that the referendum went against the "Christain ethos" of the constitution. Not even a proper legal argument. This is not the Vatican. The constituion is changeable at the will of the people which is the whole purpose of a referendum. Also an argument was that it would affect the role of women in the home, an article in the constitution that is not in force! Serious lunatics.

though this is the funniest part for me:

"The judge also dismissed other arguments by Mr Lyons that those citizens who did not vote had in effect voted No and therefore the sovereign people had not approved this amendment."

I still want to know where all the No campaigners money came from!! Are SIPO to release this information??

LegacyUser · 29-07-2015 5:52pm

What's the current estimation for when this will all be cleared up i.e. it go through the entire process and is dismissed/ruled upon? I saw articles in the IT saying early 2016 but no real indicative timeframe what what i've heard or read.

manic mailman · 29-07-2015 5:55pm

What's the current estimation for when this will all be cleared up i.e. it go through the entire process and is dismissed/ruled upon? I saw articles in the IT saying early 2016 but no real indicative timeframe what what i've heard or read.

who is this · 29-07-2015 8:23pm

The Irish Times can't read.

Their 2016 estimation is based on legislation coming forward in September (assuming either the Court of Appeal challenge is not further appealed, or that the Supreme Court hears and dismisses the appeals by the return of the Dáil) and there being a 3-month waiting period for marriages.

This is inaccurate because Fitzgerald has made it clear the legislation will come into force almost concurrently with being passed. Pending notices to enter into civil partnership can be "converted" directly into a marriage notice (the heads of the bill state this very explicitly).

The process would be

(say September) The bill is passed
The bill is given legal effect by Fitzgerald (this could be any amount of time but she has strongly implied it will be extremely prompt, so assume September as well)
(September) Couples give notice for marriage for 3-month period.
(September/October) Couples get married from existing CP notices
(December/January) Couples get married from actual notices of intention to marry

mr.anonymous · 30-07-2015 6:04pm

Judgement in one of two appeals against the Marriage Referendum currently being read in the Court of Appeal. Second case judgment due tomorrow.

Interferon Gamma · 30-07-2015 6:09pm

Just read both cases have been dismissed! Hurrah!

Fleawuss · 30-07-2015 7:01pm

No doubt there will be an appeal. Jesus probably told them. I have heard you calling in the night etc. might be worth it so religious tomfoolery expose itself completely.

who is this · 30-07-2015 7:18pm

The Irish Times suggest it can't/won't be appealed further. But as above, the IT isn't always very accurate.

My fault for skimming article (this time). The IT notes that the Appeals Court lifted the stay on issuing of the certificate so it can now be signed by the president. Even if they appeal to SC (not sure how they can if it's already signed -- this isn't a normal law, it's a constitutional amendment. Once it's signed it's signed) it won't cause any further delays as they appeal.

Appeal court clears last legal obstacle to same-sex marriage

However, this isn't a constitutional appeal per se. Neither party has tried to argue there is any constitutional problems with the Referendum Acts, merely that the referendum was somehow voidable as per the provisions of that act. It is entirely possible the SC will not hear a further appeal. They had their day in court. Two of them in fact. That's all anyone has the right to.

pl4ichjgy17zwd · 30-07-2015 7:28pm

Other complaints about An Post issuing a St Valetine’s Day Love stamp with an equality symbol, which Mr Walshe alleged amounted to a “subliminal message” in favour of a Yes vote, were also dismissed.

I actually feel sorry for these guys. Or at least I would if they hadn't put such a delay on things. Those arguments are delusional.

who is this · 30-07-2015 7:38pm

Aubrielle Tangy Rationalist wrote: »

I actually feel sorry for these guys. Or at least I would if they hadn't put such a delay on things. Those arguments are delusional.

I don't. And I'm very glad costs were awarded against them.

pl4ichjgy17zwd · 30-07-2015 7:41pm

who is this wrote: »

I don't. And I'm very glad costs were awarded against them.

Actually, you're right. If they want to believe such nonsense, then they dug their own graves. The cases were doomed from the start.

Annasopra · 30-07-2015 7:50pm

who is this wrote: »

The Irish Times suggest it can't/won't be appealed further. But as above, the IT isn't always very accurate.

My fault for skimming article (this time). The IT notes that the Appeals Court lifted the stay on issuing of the certificate so it can now be signed by the president. Even if they appeal to SC (not sure how they can if it's already signed -- this isn't a normal law, it's a constitutional amendment. Once it's signed it's signed) it won't cause any further delays as they appeal.

Appeal court clears last legal obstacle to same-sex marriage

However, this isn't a constitutional appeal per se. Neither party has tried to argue there is any constitutional problems with the Referendum Acts, merely that the referendum was somehow voidable as per the provisions of that act. It is entirely possible the SC will not hear a further appeal. They had their day in court. Two of them in fact. That's all anyone has the right to.

According to GLENs tweet they can appeal within 28 days to the Supreme Court

who is this · 30-07-2015 8:03pm

Joeytheparrot wrote: »

According to GLENs tweet they can appeal within 28 days to the Supreme Court

But the president can sign it in the meantime if there is no stay, so....?

Peregrinus · 31-07-2015 4:54am

who is this wrote: »

But the president can sign it in the meantime if there is no stay, so....?

If they appeal to the SC, they can also ask the SC to reimpose the stay. But, as we have already seen, it is not automatic that the SC would agree to take the appeal. Nor is it automatic that they would agree to reimpose the stay.

ixoy · 31-07-2015 9:56am

Peregrinus wrote: »

If they appeal to the SC, they can also ask the SC to reimpose the stay. But, as we have already seen, it is not automatic that the SC would agree to take the appeal. Nor is it automatic that they would agree to reimpose the stay.

But now that stay is lifted can't the president just sign it right away? Does he have to wait again just because it *might* be appealed? That hardly seems right especially with the farcical nature of this appeal.

Daith · 31-07-2015 10:05am

ixoy wrote: »

But now that stay is lifted can't the president just sign it right away? Does he have to wait again just because it *might* be appealed? That hardly seems right especially with the farcical nature of this appeal.

Sign it? Doesn't he sign the Marriage Equality Bill after it goes through the Oireacthas?

I don't think he does anything with the actual referendum result.

Peregrinus · 31-07-2015 10:31am

Daith wrote: »

Sign it? Doesn't he sign the Marriage Equality Bill after it goes through the Oireacthas?

I don't think he does anything with the actual referendum result.

No. A bill to amend the Constitution goes through the Dail and the Seanad, and then goes to a referendum. The President can't sign it until he is satisfied that it has been duly approved by the people in a referendum. Once he is satisfied about that he is supposed to sign it "forthwith". But that does require him to be satisfied that the referendum has been conducted in accordance with the law, so as long as the legality of the conduct of the referendum is being thrashed out in the courts, he won't be "satisfied" about that, and won't (and can't) sign the Bill.

At the moment there are no court proceedings outstanding challenging the conduct of the referendum. The President, SFAIK, doesn't have to hold off signing on the off-chance that someone could still launch some. (There are 28 days from the Court of Appeal judgment to ask the Supreme Court to hear a further appeal.)

So if the losing side in the Court of Appeal does want to go to the Supreme Court, they would be advised not to wait for the full 28 days; they should go in immediately, and ask the Supreme Court to reimpose the stay on signing. Or, at the very least, they should put the State on formal notice that they intend to appeal, in which case the President might think it would be prudent to wait for the appeal deadline to expire before signing the Amendment Bill.

Once the Amendment Bill is signed, the Constitution is amended. But this doesn't introduce SSM; it just allows the Oireachtas to legislate to introduce it. And that Bill will have to go through the Dail, and the Seanad, and be signed by the President, before any same-sex couple can actually marry. But they have signalled that they intend to do this PDQ, and since the opposition are on side there will be co-operation to get the Bill through without delay.

L1011 · 31-07-2015 11:13am

Certificate should be issued immediately - just as it should have been after the first challenge was thrown out.

Hopefully, the inevitable awarding of costs against them for this in any SC challenge, based on the previous results, will lead to the Supreme Court demanding proof of means and a bond for the states costs in an appeal.

This has happened before when there's been minimal / obviously zero chance of victory.

To a certain level I hope they do go to the SC, lose, get bankrupted and get a Wunder Order put on them for taking frivolous cases - but that'd be a bit vindictive...

SpaceTime · 31-07-2015 11:50am

if they do appeal to the SC at this stage, they'd have to present fairly technical legal grounds and from what I've read about the case to the Court of Appeal, it was very amateur stuff!

hotmail.com · 31-07-2015 7:04pm

I'm sure most of the No side are embarrassed at this spectacle - it's not doing religion in general any favours. They are either serial trolls, complete lunatics or a bit of both.

Fleawuss · 01-08-2015 12:06pm

hotmail.com wrote: »

I'm sure most of the No side are embarrassed at this spectacle - it's not doing religion in general any favours. They are either serial trolls, complete lunatics or a bit of both.

The truth shall make you free. Religion deserves to be represented at every occasion by those who actually believe it.

floggg · 04-08-2015 8:38am

Fleawuss wrote: »

The truth shall make you free. Religion deserves to be represented at every occasion by those who actually believe it.

Yea. The more often the religious types expose their nonsense ideas to scrutiny, the more often it will be exposed for the empty fables it is - which is to the benefit of us all.

SpaceTime · 04-08-2015 9:33am

So is the certificate issued yet?

Holding up democracy isn't a good thing!

Annasopra · 04-08-2015 10:11am

SpaceTime wrote: »

So is the certificate issued yet?

Holding up democracy isn't a good thing!

It's not 100% clear whether the President can sign it yet.

I asked my friend on this and he said

For the President to sign, he has to get official notification from both the Taoiseach and the referendum returning officer. Under the Referendum Act, she can't send him that notification until the Master of the High Court notifies her that the challenges have been rejected.

The bit I don't know is whether the Master can do that on Tuesday, after the bank holiday or if he must wait the usual 21 days to allow an appeal.

Annasopra · 04-08-2015 10:21am

SpaceTime wrote: »

Holding up democracy isn't a good thing!

As an aside I think it is good democracy that we have ways to democratically challenge our systems of democracy. I cant agree with suggestions that we shouldn't allow challenges like this.

Daith · 04-08-2015 10:34am

Joeytheparrot wrote: »

As an aside I think it is good democracy that we have ways to democratically challenge our systems of democracy. I cant agree with suggestions that we shouldn't allow challenges like this.

Yeah I've no problem with people challenging a result...but none of their arguments made sense. When two different courts come to the same conclusion I can't see but nothing as frivolous.

Annasopra · 04-08-2015 11:15am

Daith wrote: »

Yeah I've no problem with people challenging a result...but none of their arguments made sense. When two different courts come to the same conclusion I can't see but nothing as frivolous.

I never argued they had a decent or sensible case just that it is healthy for our democracy that they can take a case.

ixoy · 04-08-2015 12:05pm

What can they appeal? To the Supreme Court? Can they reject to hear it immediately? And if so is that it or can this moron delay it further?

Daith · 04-08-2015 12:11pm

ixoy wrote: »

What can they appeal? To the Supreme Court? Can they reject to hear it immediately? And if so is that it or can this moron delay it further?

They have 28 days from 30th July. I presume it's just days not working days?

Annasopra · 04-08-2015 12:15pm

ixoy wrote: »

What can they appeal? To the Supreme Court? Can they reject to hear it immediately? And if so is that it or can this moron delay it further?

Yes they can appeal to the Supreme Court. But the SC might just refuse to entertain this nonsense.

spurious · 04-08-2015 12:23pm

Who pays for it all?

ixoy · 04-08-2015 1:10pm

spurious wrote: »

Who pays for it all?

For the Court of Appeal it was awarded against them so they paid. I hope it cost them dearly, enough that they won't waste everyone's time and pursue it further.

What I don't understand is delaying the result just in case they might appeal.

NuMarvel · 04-08-2015 1:33pm

Joeytheparrot wrote: »

Yes they can appeal to the Supreme Court. But the SC might just refuse to entertain this nonsense.

The Supreme Court probably would refuse to hear an appeal. The threshold to appeal from the Court of Appeal to the SC is quite high, requiring an appeal to be on of general public importance or if hearing the appeal is in the interests of justice. From listening to the decision of the Court of Appeal judges, I don't think there's much chance of these guys coming close to that threshold.

who is this · 12-08-2015 8:21pm

Anyone interested in keeping up to date can monitor

Whether the certificate has been issued
Whether the amendment has been signed into law
Whether an appeal has been filed

Daith · 13-08-2015 8:55am

Hmm, so are they waiting until after the 28 days to issue the cert?

ixoy · 13-08-2015 11:53am

Daith wrote: »

Hmm, so are they waiting until after the 28 days to issue the cert?

Yeah, is there any way at all to find out exactly why it hasn't been issued yet? We're just making educated guesses but a definite answer should be made available.

newacc2015 · 13-08-2015 6:15pm

Its a bit weird how long all of this takes. When they allowed SSM in the US, they were issuing marriage certs almost immediately. I know its important to have checks and balances. But its ridiculous that an individual with an agenda, can basically slow down laws happening

SpaceTime · 13-08-2015 6:33pm

The process in the U.S. was different though. It was just legislated for in most of the state's that had it.

In Ireland all we've done so far is have a referendum to remove a possible constitutional ambiguity. The legislation still hasn't happened yet to actually implement it and this technical appeal is about the process of the referendum rather than the issue of same sex marriage.

Also because of when the referendum was held (May) there was always a risk of this running into the summer recess which is what's compounding it.

hotmail.com · 13-08-2015 10:55pm

SpaceTime wrote: »

The process in the U.S. was different though. It was just legislated for in most of the state's that had it.

In Ireland all we've done so far is have a referendum to remove a possible constitutional ambiguity. The legislation still hasn't happened yet to actually implement it and this technical appeal is about the process of the referendum rather than the issue of same sex marriage.

Also because of when the referendum was held (May) there was always a risk of this running into the summer recess which is what's compounding it.

The main point is that the referendum passed..can we not just have the marriages straight away. The legislation should have been passed the week after the result - end of story in my view.

Annasopra · 13-08-2015 10:59pm

hotmail.com wrote: »

The main point is that the referendum passed..can we not just have the marriages straight away. The legislation should have been passed the week after the result - end of story in my view.

That's democracy - that there are checks and balances and legislation takes time to go through. I agree these cases were ridiculous and vexatious but I think it's completely healthy and a good thing that we have a democracy where such cases can be taken.

ixoy · 13-08-2015 11:20pm

Joeytheparrot wrote: »

That's democracy - that there are checks and balances and legislation takes time to go through. I agree these cases were ridiculous and vexatious but I think it's completely healthy and a good thing that we have a democracy where such cases can be taken.

Yes but such cases shouldn't be allowed delay things as long as they have. It should have been expedited. What's happening should also be much clearer - a lot of people went through a lot of trouble for this vote and now it's in limbo with only vague ideas of when it will be implemented. Nobody really seems that interested any more now that the vote has passed.

Daith · 14-08-2015 8:42am

Joeytheparrot wrote: »

That's democracy - that there are checks and balances and legislation takes time to go through. I agree these cases were ridiculous and vexatious but I think it's completely healthy and a good thing that we have a democracy where such cases can be taken.

The cases are over, there's no pending case at present.

From this article

A stay on the issuing of the certificate had applied pending the appeal court’s ruling. It has now been lifted.

http://www.irishtimes.com/news/crime-and-law/appeal-court-clears-last-legal-obstacle-to-same-sex-marriage-1.2302482

So it seems there is no barrier to issue the cert. So my question still remains, are they just waiting for the 28 days to finish before issuing the cert? They don't have to though do they?

I suppose it doesn't make a whole pile of difference with the Dail being on break but it would be nice to just have it issued.

Peregrinus · 14-08-2015 8:57am

Daith wrote: »

So it seems there is no barrier to issue the cert. So my question still remains, are they just waiting for the 28 days to finish before issuing the cert? They don't have to though do they?

I suppose it doesn't make a whole pile of difference with the Dail being on break but it would be nice to just have it issued.

They don't have to, but they may think it wise to. As you point out, the Oireachtas is not sitting, so even if the cert were issued no progress could be made. And if the cert were issued, and then there were an appeal, it would look bad and possibly put them in a sticky spot. They wouldn't want to appear to try to sideline the courts, or anticipate their decision, or act in a way that might frustrate any decision the courts might eventually make.

I appreciate that there's a desire to complete this process and actually start celebrating weddings. But in the scheme of things, waiting for the 28-day limit to expire is not a big deal. This change was recommended to the Government by the Constitutional Convention in May 2013. It took the Government 7 months to consider that recommendation and commit to it. It took another 14 months before they introduced the necessary Bill into the Oireachtas. Another 2 months for the Oireachtas to pass it. 2 more months to organise the referendum. In the light of this fairly deliberate pace, a 28-day pause at a time when the Oireachtas isn't sitting anyway doesn't look like anything to get worked up about.

Daith · 14-08-2015 9:04am

Peregrinus wrote: »

They wouldn't want to appear to try to sideline the courts, or anticipate their decision, or act in a way that might frustrate any decision the courts might eventually make.

So why would the Judge say at the Court of Appeals that the stay on issuing the cert can be lifted? I fail to see how anyone could be in the wrong here for issuing the cert.

Peregrinus wrote: »

In the light of this fairly deliberate pace, a 28-day pause at a time when the Oireachtas isn't sitting anyway doesn't look like anything to get worked up about.

My main issue is that we are coming into General Election season. We haven't implemented the Children and Family Act either and that was signed off in March/April.

Amendment court challenge

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