Government loses same-sex marriage appeal

Saturday, November 24, 2018

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HAMILTON, Bermuda (CMC) — Bermuda's same-sex marriage campaigners celebrated in court yesterday after the ruling Progressive Labour Party (PLP) Government lost its latest legal battle.

The Court of Appeal dismissed the Government's claim that former Chief Justice Ian Kawaley erred in a ruling that reopened the door to same-sex marriage in this British Overseas Territory.

The judge had found that a clause in the Domestic Partnership Act (DPA), which specified marriage as between a man and a woman, was unconstitutional.

An application by the Government to stay the Court of Appeal's decision was also refused yesterday, meaning same-sex marriage in the island and on Bermuda-registered ships is now legal.

However, sources said the Government may apply for the matter to be heard by the Privy Council in London within the next 21 days, at which point a stay may be granted.

Bermuda became the only country in the world to have allowed same-sex marriage and then banned it. The case was the latest in a series of legal battles over same-sex marriage in Bermuda.

In a joint statement, the successful applicants Maryellen Jackson and Roderick Ferguson said : “Speaking for ourselves and on behalf of gay and lesbian Bermudians, we are grateful for the court's decision, and its recognition of the significance of marriage in supporting and protecting our families.

“Equality under the law is every Bermudian's birthright. Bermuda's LGBTQ community is strong and proud. When our voices join together, we will be heard, and we will continue to make progress.”

Zakiya Johnson Lord, a spokeswoman for the charity OutBermuda, said, “Today's ruling makes history for Bermuda and our nation's dedication to equality and fairness for all citizens, including our LGBTQ families. We believe there is nothing more fundamental than the right to marry the one we love.

“Ms Jackson and Mr Ferguson are Bermudians who personally took a brave public stand to fight for the right to marry for all gay and lesbian Bermudians and we are proud to work with them and the countless others who have made today a reality.”

Justice Charles-Etta Simmons found in May 2017 that a restriction of marriage to a man and a woman was against the island's Human Rights Act.

That ruling made same-sex marriage possible and the then ruling One Bermuda Alliance Administration decided not to appeal.

But the PLP Government, which toppled the One Bermuda Alliance in a landslide general election victory in July last year, replaced same-sex marriage with domestic partnerships in December 2017 through the DPA.

Ferguson launched a legal action to halt the legislation on the grounds it was discriminatory and unconstitutional. He was joined in the legal battle by Jackson and OutBermuda.

The Government hired London QC James Guthrie to fight its case. He was given permission to do so by Chief Justice Narinder Hargun over the objections of the Bermuda Bar Council.

Last year's judgement by Justice Simmons came after Bermudian Winston Godwin and Greg DeRoche, his Canadian partner, litigated against the registrar-general for refusing to post their wedding banns.

Despite their landmark victory, Godwin and DeRoche chose to marry in Canada, but there were at least 10 same-sex marriages on the island plus four at sea on Bermuda-flagged ships.

The firestorm of criticism the ban on same-sex marriage sparked here and abroad led to Ferguson's decision to launch his crowdsourced civil case against the attorney-general on the grounds that his constitutional rights had been breached.

Bermudian lawyer Julia Saltus and her Ghanaian-American partner Judith Aidoo were the first gay couple to wed here.

The Netherlands was the first country to legalise same-sex marriage in 2001.

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