Same-Sex Marriage in Bermuda – 2022 Update
About Nicole Cavanagh
Nicole is a Senior Associate in the firm’s Matrimonial and Family Department. Having two decades of family law experience, Nicole is an expert in helping clients resolve their issues in the least stressful and most cost effective way possible.
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As lawyers with a keen eye on human rights and family law, we have followed with interest the various cases involving same-sex partnerships and marriages in Bermuda. Our Director, Jennifer Haworth reported on the Bermuda Bred Company v The Minister of Home Affairs and the Attorney General case in 2015:
This was a landmark ruling from Bermuda’s Supreme Court which, as of 29 February 2016, allowed for the same-sex partners of Bermudians in a stable relationship, to have the same rights to reside and work in Bermuda as spouses of Bermudians.
The following year saw a further advancement in this fast moving area, with a judgement in the case brought by Bermudian Winston Godwin and his fiancé Greg DeRoche. Whilst Greg was Canadian, the couple wanted to marry in Bermuda and brought their case to the Supreme Court. The outcome was successful for the couple who were given the right to marry in Bermuda, opening the church doors for many others to follow suit. The ruling was again reported on by Jennifer in our Bermuda Blog:
Unfortunately, for same-sex couples who thought their status woes were over following the May 2017 ruling, the Domestic Partnership Act 2018 (“DPA”) was brought into effect in June 2018, and undid the progress made by the aforementioned Godwin case. The DPA removed the right of same-sex couples to marry, and instead replaced it with the domestic partnership alternative. The legal rights conferred on domestic partners are fewer compared to those of spouses in a marriage.
The DPA served as a catalyst for the Attorney General for Bermuda (Appellant) v Roderick Ferguson and others (Respondents) (Bermuda) case. This legal challenge was brought by the Appellants at first instance on the basis that the sanctity of marriage should remain available for same-sex couples in Bermuda, should they wish to enter into it. The application was a success in the Supreme Court and in the Court of Appeal. However, the Bermudian Government appealed to the highest court, that being the Judicial Committee of the Privy Council, on appeal from the Court of Appeal for Bermuda.
The outcome was a reversal of the previous Courts’ decisions meaning that once again, as at the date of writing, same-sex marriage is not legally recognised in Bermuda. *See note on validity period below.*
Taking a closer look at the judgement, the successful appeal challenged the three grounds upon which the case had been built.
Ground one: religiously motivated legislation
The Board held that constitutional validity is based on the effect of legislation, not the purpose for which it was enacted. Further, the DPA was not passed for religious purpose, but to make good on an electoral promise by the incoming political party in 2018.
Ground two: freedom of conscience
In the lower courts, the Respondents had successfully sought protection of their beliefs in same-sex marriage as an institution to be recognised by law. They did so on the basis that Section 8 of the Bermudian Constitution affords protection to a person’s enjoyment of freedom of conscience. Two approaches to this quandary were taken by the Board, both resulting in the same conclusion.
The first approach accepted that a person’s belief in the legal recognition of marriage is an expression of conscience, but concluded Section 8 does not obligate a Government or state to make laws complying with an individual’s beliefs.
The second approach failed to accept that an individual’s belief in the legal recognition of marriage is an expression of conscience. The Board referred to the European Court of Human Rights and the repeated rejection of arguments advanced on the basis that a contracting state should recognise marriages in a form that the relevant law did not recognise.
Ground three: discrimination according to creed
Discrimination against a person’s creed is prohibited under Section 12 of the Bermudian Constitution. However, the Board conferred the meaning of creed as a set or system of beliefs, not a single belief, such as that of the right to marry. It was also noted that the inability to be legally recognised as a married couple in Bermuda was not due to restriction on religious beliefs, but by virtue of being of the same sex, and not one man and one woman, as determined by law.
Confusing as it may seem, some same-sex marriages in Bermuda continue to be recognised as valid due to the timing of court decisions relating to this issue. Following the Privy Council decision in March 2022, it was felt by the Bermudian Government that it would be unjust to strip away the nuptial rights enjoyed by spouses who married when same-sex marriage was recognised in Bermuda. Therefore, the Domestic Partnership Amendment Act 2022 was enacted in August 2022 and deemed to have retrospective effect to 14th March 2022. The result is that same-sex marriages entered into between 5th May 2017 and 14th March 2022 (excluding 1st June to 23rd November 2018) will be upheld as valid.
A Similar Issue Elsewhere
As a side note, on the very same day the Roderick Ferguson judgement was delivered by the Privy Council in March 2022, a same-sex marriage case from the Cayman Islands was handed down, having been heard by the same Board of Justices. The Chantelle Day and another (Appellants) v The Governor of the Cayman Islands and another (Respondents) (Cayman Islands) case concerned whether the Cayman Islands constitution confers a constitutional right to the legal recognition of same-sex marriages. The Appellants were successful at first instance in the Grand Court of the Cayman Islands, which held that the Bill of Rights of the Cayman Constitution should be read in such a way as to give marriage rights to same-sex couples. However, the Government of the Cayman Islands disagreed, and were successful in the Court of Appeal, which led to the challenging appeal to the Privy Council.
The Board referred to European Convention on Human Rights case law, to interpret the Cayman Bill of Rights and concluded that the rights of marriage could not be extended to same-sex couples. However, the Board of Justices did not exclude the possibility of the Cayman Islands Government introducing legislation relating to the constitutional rights of same-sex couples, independent of the rights afforded by the Cayman Constitution.
Bermuda is the only jurisdiction to date, to legalise same-sex marriage and then reverse the right, leaving many supporters aghast. However, this issue remains live. It appears that same-sex couples’ rights and marriage in Bermuda will be a topic of political debate for the foreseeable future, and therefore continues to be an evolving area of family law.