Court Of Appeal Backs Former Chief Justice’s Ruling in Same Sex Marriage Case

Court Of Appeal Backs Former Chief Justice’s Ruling in Same Sex Marriage Case

About Jennifer HaworthJennifer Haworth

Jennifer Haworth is a senior associate 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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In an important decision for Bermuda, the Court of Appeal has supported a decision of the Supreme Court made by Former Chief Justice Ian Kawaley in Ferguson et al v Attorney General in June 2018 which held that certain aspects of the Domestic Partnership Act 2018 (the “DPA”) are unconstitutional.

We previously told you about landmark court ruling in May 2017 which allowed same-sex marriage in Bermuda.There have been some developments in this area during the last year culminating with the recent decision of the Court of Appeal (the “Judgment”).

The DPA was introduced by the Government of Bermuda in late 2017 and was given assent in February 2018. While the DPA introduced domestic partnerships to Bermuda for the first time for both heterosexual and homosexual couples, it made clear that marriage was not extended to homosexual couples. Specifically, the DPA introduced a provision at Section  53, entitled “Clarification of the law of marriage” which reads:

“Notwithstanding anything in the Human Rights Act 1981, any other provision of law or the judgment of the Supreme Court in Godwin and DeRoche v The Registrar General and others delivered on 5 May 2017, a marriage is void unless the parties are respectively male and female.”

In the Ferguson case, individuals as well as charity, OutBermuda and others successfully argued in the Supreme Court that Section 53 (the “Revocation Provisions”) of the DPA were unconstitutional.

The Government of Bermuda appealed that decision to the Court of Appeal, but was unsuccessful. In the Judgment, the Court of Appeal held the Revocation Provisions invalid and struck them down on that basis that they amounted to a breach of section 8 of the Bermuda Constitution which protects the freedom of conscience. The Court of Appeal said at paragraph 72:

“It is true that the draughtsman of the Bermuda Constitution 50 years ago is unlikely to have had same-sex marriage in the forefront of his mind, or indeed in his mind at all, but that is not the point. It was drafted with enough flexibility to protect everyone’s freedom of conscience in a changing world. Interference with that freedom can be by both positive and negative acts, in this instance by the negative act of preventing same-sex couples having the right to marry.”

The Government has indicated that it intends to appeal the Judgment to the Privy Council. We will continue to follow this important case and provide updates as they are available.