This week, the Belfast High Court struck down a bid to introduce same-sex marriage to Northern Ireland by claiming it violated the rights of LGBT couples in the province.
According to the Daily Telegraph, Mr Justice O’Hara “said it was for the Stormont Assembly not a judge to decide social policy in Northern Ireland.”
This story hasn’t received a huge amount of attention on the mainland. Normally that’s par for the course with most Ulster stories, but you might have expected this one to be different given the keen interest so many people were taking in Northern Irish attitudes to gay rights just months ago.
As this case can’t be tied to the Government, as it isn’t related to the Conservatives’ deal with the DUP, it has lapsed once again into the unhappy obscurity that is the usual fate of ‘Ulster issues’ over here. There’s a lesson in there about how common government makes the different parts of the UK more interested in each other.
This obscurity may not last. By thrusting responsibility of the issue back to Stormont, where it belongs, the judge has pointed the spotlight back at the DUP, who were the only major party blocking gay marriage in the Northern Ireland Assembly.
After this spring’s disastrous emergency election they lack the MLAs to block it, but their vote rebounded so hard in June that Arlene Foster has plenty of incentive to hold out for yet another devolved election before getting the Assembly going again.
Should that happen, and the spotlight aimed by Mr Justice O’Hara get switched on, ministers should brace themselves for tough questions if their allies get dragged into a new fight on the issue.
Politically tricky as that might be, however, we should welcome the fact that this decision has been recognised as essentially political.
It is often tempting to try to win political battles, or correct ‘bad’ laws, via judicial creativity. In the United States it has become common practice, and on this side of the Atlantic previous governments have taken us in a similar direction by setting hallowed documents of broadly-worded rights above the normal legislation of our elected MPs.
But the deep divisions so clearly evident in America today should sound a warning to us: giving activists a route to legal victory without having to do the hard work of persuading sceptics and winning elections entrenches polarisation, and undermines the idea that those who rule are accountable to the electorate.
As somebody who believes that every Northern Irish citizen should enjoy the same rights as their fellow Britons, I don’t set any value on Stormont being able to block gay marriage.
But if it must be overridden it should be by our elected representatives in Parliament. Far better that any controversy spur increased interest in our national legislature than that it should risk a partisan split in the perceived legitimacy of the courts.