Landmark Court Ruling Permits Same-Sex Marriage in Bermuda

Landmark Court Ruling Permits Same-Sex Marriage in Bermuda

About Jennifer HaworthJennifer Haworth

Jennifer Haworth is a Director in the firm’s Litigation & Dispute Resolution team. Jennifer has a wide practice in all aspects of civil and commercial litigation both in Bermuda’s courts as well as in mediation and arbitration.

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On May 5, 2017, Supreme Court Justice Charles-Etta Simmons ruled that the Registrar-General’s decision to reject a marriage application from a same-sex couple was discriminatory on the basis of sexual orientation, declaring that “same-sex couples are entitled to be married under the Marriage Act”.

The case had been brought by Bermudian Winston Godwin and his Canadian fiancé Greg DeRoche, who took their case to the Supreme Court after the Registrar-General refused to publish their marriage banns, arguing that the Human Rights Act (the “HRA”) took primacy in Bermuda and protected their right to marry. “The facts of this case are relatively simple and straightforward,” Justice Simmons wrote in her introduction. “The Applicants are both male. Each states by affidavit that they met in Canada, the home of the second Applicant, and started dating in 2015. They both love Bermuda, the home of the first Applicant. It is their wish to be married in Bermuda irrespective of their gender as recognition of the feelings that they have for one another.

The 48 page judgment starts out acknowledging that same-sex marriage is a controversial topic in Bermuda, but concludes as follows:

By way of summary I hold that:

    i. The common law definition of marriage, that marriage is the voluntary union for life of one man and one woman, and its reflection in the Marriage Act section 24 and the MCA section 15 (c) are inconsistent with the provisions of section 2 (2) (a) (ii) as read with section 5 of the HRA as they constitute deliberate different treatment on the basis of sexual orientation. In so doing the common law discriminates against same-sex couples by excluding them from marriage and more broadly speaking the institution of marriage. The court examined the common law definition of marriage through the broad scope of the HRA. That scope encompasses and reflects the changing values in the modern democracy that Bermuda is. Those changing values are reflected in decisions that have emanated from the Supreme Court. The courts have struck down legislation that discriminated against a same-sex male couple from adopting a child: A & B. Further it struck down immigration legislation that treated a non-Bermudian same-sex partner of a Bermudian differently from a non-Bermudian opposite-sex from a partner of a Bermudian regarding a classification of immigration status: Bermuda Bred. Against the legal, social and cultural back drop of changing attitudes regarding same-sex relationship and sexual orientation it is fair to say that notions such as marriage or the institution of marriage being predicated upon heterosexual procreation and marriage being the main and most effective means of rearing healthy, happy, and well-adjusted children, to borrow a phrase from the Chief Justice, have been turned on their heads. Their historic and insular perspective as reflected in the common law definition of marriage is out of step with the reality of Bermuda in the 21st century.
    ii. The functions that the Registrar carries out under section 13 and 14 of the Marriage Act amount to “services” as provided by section 5 of the HRA. On the facts of this case the Applicants were discriminated against on the basis of their sexual orientation contrary to section 2 (2) (a) (ii) as read with section 5 of the HRA when the Registrar refused to process their Notice of Intended Marriage as required by sections 13 and 14 of the Marriage Act. Same-sex couples denied access to marriage laws and entry into the institution of marriage have been denied what the HRC termed a “basket of goods”, that is, rights of a spouse contained in numerous enactments of Parliament (if they are to have the right to marry they must of course also assume the various obligations that adhere thereto). Such denial has created a hardship for same-sex couples. Children adopted by same-sex couples can potentially experience hardship by their parents being denied marriage status and them the concomitant family status.

In short, Justice Simmons ruled in favour of the couple and the Court ordered that they be given the right to marry.

As mentioned in the summary above, this decision follows other legal victories for same-sex couples in Bermuda over the last few years. Discrimination based on sexual orientation was banned under the Human Rights Act in 2013. Following that, the Supreme Court issued rulings allowing same-sex couple adoption in 2015, and, in 2016, allowed bi-national same-sex couples the same right to reside and work in Bermuda as spouses of Bermudians. I covered the 2016 ruling in this blog post: Same-Sex Partners of Bermudians: Right to Live & Work.