Judgment reserved on same-sex marriage lawsuit
Chief Justice Ian Kawaley today reserved judgment on a legal challenge to an Act designed to end same-sex marriage.
Representatives for the Attorney-General argued the Domestic Partnership Act did not infringe on anyone’s Constitutional rights.
But Rod Attride-Stirling, representing charity OutBermuda and gay Bermudian MaryEllen Jackson, warned that there was a “right and a wrong side of history”.
Mr Attride-Stirling said the purpose of the legislation, scheduled to come into force next month, was clearly religious and unconstitutional.
He added that Rozy Azhar, Permanent Secretary for the Minister of Home Affairs, said consultation had been done after the Progressive Labour Party won power last year, but the party’s promise to end same-sex marriage was included in their election manifesto.
Mr Attride-Stirling said: “The key part was to get rid of same-sex marriage. Everything else was window dressing.”
He added that Walton Brown, Minister of Home Affairs, had said the Act was the result of a Private Members’ Bill by Wayne Furbert, a PLP MP, which had a clear religious motivation and was intended to put a stop to same-sex marriages.
Mr Attride Stirling said: “It becomes easy to make the next step. It’s a small step to link the Furbert Bill to the DPA revocation. We say it’s the only logical step.”
He added: “No western government has tried to abolish the secular definition of anything and replace it with a religious definition.
“We are in bizarre territory, but it’s territory of the Government’s making.”
But Lauran Sadler-Best, for the Attorney-General, insisted the DPA was secular and the court should not “divine the minds” of legislators.
Ms Sadler-Best quoted a speech by Mr Brown in the House of Assembly to open debate on the Act.
Mr Brown said: “We cannot build sound policy on a particular interpretation of religion.”
Ms Sadler-Best argued that his speech and the legislation were both non-religious, even though some religious people might agree with them.
Ms Sadler-Best also argued the applicants had failed to demonstrate a “common creed”.
She highlighted that the Constitution protected religious beliefs and creeds, but did not require Government to enshrine those beliefs in law.
She said: “The common thread is sexual orientation, but there’s no protection for that so they have been gerrymandering to get us to ‘creed’.”
The Supreme Court ruled in favour of gay couple Winston Godwin and Greg DeRoche last year when they took legal action against the Registrar-General in the wake of a refusal to post their wedding banns.
The decision paved the way for same-sex couples to marry on the island.
But Parliament later passed the DPA, which was created to replace same-sex marriages with partnership arrangements open to both gay and straight couples.
Mr Ferguson launched legal action against the Attorney-General in February.
His aim is to get the court to declare the legislation void on the grounds it is in breach of fundamental constitutional rights. OutBermuda and Ms Jackson launched a similar lawsuit, with both cases being heard together.
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