Lawsuit launched over same-sex marriage

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  • Civil claim: Mark Pettingill will represent Rod Ferguson (File photograph)

    Civil claim: Mark Pettingill will represent Rod Ferguson (File photograph)

A gay Bermudian who hopes to marry one day in his home country has launched a legal challenge against the Attorney-General for revoking his right to do so and subjecting him to “inhuman or degrading treatment”.

Lawyers for Rod Ferguson, a single man who lives in the United States, filed a lawsuit yesterday afternoon with the Supreme Court, claiming that the new Domestic Partnership Act was unconstitutional.

The Act, which replaces same-sex marriage with civil unions, was approved by Parliament in December and given Royal Assent by John Rankin, the Governor, on February 7.

It reverses a Supreme Court decision from May last year that enabled gay people to wed here — a judgment won after gay couple Winston Godwin and Greg DeRoche litigated against the Registrar-General for refusing to post their wedding banns.

Mr Ferguson, 38, is represented by Mark Pettingill, the former Attorney-General, who also represented Mr Godwin and Mr DeRoche.

In a statement, Mr Ferguson said that, although single, he has “always considered myself to be the marrying kind”.

Although Bermuda’s referendum on same-sex relationships in 2016 failed to garner enough votes to achieve an official answer, Mr Ferguson said he had nonetheless been left “heartbroken” by its majority negative result at the polls.

He added: “I rejoiced when Bermuda finally established the right for same-sex couples to marry in 2017 and I had planned to exercise that right someday, but then it was taken away through the passage of the Domestic Partnerships Act.

“I strongly believe that this is a fundamental human rights issue, that everyone is entitled to the same protection of law which includes the service of a contractual marriage in Bermuda. When the rest of the right-thinking world has accepted the position that marriage should be available to same-sex and opposite-sex couples alike, it is very disappointing that my own country has effectively moved backwards.

“I am grateful for what so many others have done to contribute to Bermuda’s movement toward marriage equality, and I’m privileged to be in a position, with the support of family, friends, and the LGBT community, where I can now stand up and do my part. I have taken the decision to make this legal application to protect my rights along with the rights of so many of my fellow Bermudians.”

Mr Pettingill, of Chancery Legal law firm, told The Royal Gazette last night: “The crux of it is that the protection of law that existed under the Human Rights Act as a result of the judgment in May has been removed. This man’s, and many other people’s, fundamental rights and protections under the law have been usurped.”

The aim of the civil claim filed on behalf of Mr Ferguson is to have the Domestic Partnership Act declared void by the court, on the basis that it is inconsistent with his fundamental rights as set out in the Constitution.

Those rights include the protection of law, freedom of conscience, freedom of expression, freedom of association with other persons, creed, and certain property rights.

The lawsuit states that the effect of the new Act “is to subject the applicant to inhuman or degrading treatment”. It seeks orders of redress under section 15 of the Constitution.

Mr Pettingill said: “What Mr Ferguson is saying in his application is that he is being denied his constitutional rights. He doesn’t have the protection of law under the Constitution that he once had. He is an openly gay man that one day would like to marry and he’s barred from doing that. We have filed against the Attorney-General on the question of the legality of the Bill.”

The lawyer said the case had the potential to end up in Europe’s highest courts. The argument there, he said, would not be about whether Bermuda legally had to allow gay couples to marry, but about those couples being allowed to marry and then having the right taken away from them.

“In Bermuda, same-sex marriage was legal and then we took it away,” Mr Pettingill said. “The real significance is that it is the removal of an existing right. The European Court has not said that if you had that right, you can take it away.

“They said there should be a framework. We had one when same-sex marriage was declared legal by way of contractual marriage at the registry.”

He added that he had been approached by other individuals interested in pursuing a legal challenge, but they had wished to remain anonymous, whereas Mr Ferguson was willing to put his name on the lawsuit. The legal team working on the case includes Katie Richards, from Chancery, and Ronnie Myers, of Marshall Diel & Myers.

Home affairs minister Walton Brown has previously said the Act “was developed in such a way as to ensure that it fully complies with our Constitution”.

Mr Brown added: “Clearly anyone has the right to challenge anything they want, but it must be a challenge with merit.”

According to the Registry-General, ten gay couples have tied the knot in Bermuda since the ruling in May.

As of January 25, there had also been four same-sex weddings on board Bermudian-registered ships.

An article in The New York Times on Wednesday, one of numerous pieces published in the global media in response to the legislation, said two weddings previously approved by Bermuda on board Princess Cruises ships would be allowed to proceed in March.

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Published Feb 16, 2018 at 8:00 am (Updated Feb 16, 2018 at 10:00 am)

Lawsuit launched over same-sex marriage

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