Government set for a run at the Privy Council
A last-ditch legal attempt to restore a ban on same-sex marriage was mounted by the Government yesterday.
Notice was given to the Court of Appeal to ask permission to take the case to London’s Privy Council. The Government said the matter was important to the island’s people and involved complex legal points that should be heard by the highest court of appeal for Bermuda.
Walter Roban, the Deputy Premier and Minister of Home Affairs, said: “Constitutional issues are important issues and this government wants to get it right.”
Initial applicant Rod Ferguson accused the Government of “playing politics with the right to same-sex marriage” and said its actions had hurt the Bermudian LGBTQ community as well as the island’s reputation overseas.
Campaign group OutBermuda urged ministers to stop wasting taxpayers’ money on “futile appeals”.
The decision to try and take the case to the Privy Council came after a ruling by the Court of Appeal made same-sex marriage legal again last month.
The application was made just before a 21-day deadline was reached.
The Court of Appeal last month dismissed the Government’s claim that former Chief Justice Ian Kawaley was wrong to strike down parts of the Domestic Partnership Act, which was passed to replace same-sex marriage with a civil partnership arrangement.
A packed courtroom erupted in cheers as Sir Scott Baker, president of the Court of Appeal, announced the decision. The Court of Appeal also has the role of deciding if permission is given for a plaintiff to go to the Privy Council.
The Privy Council then considers if an appeal has merit and if it will hear the case or not.
“The Government’s position is that the issues involved in these matters are of general public importance to the people of Bermuda and involve complex and difficult issues of law which are appropriate for consideration by the Privy Council,” a government spokeswoman said yesterday.
The Domestic Partnership Act was passed in December 2017. It recognised same-sex marriages that had already happened, but banned any more and offered domestic partnerships instead.
Mr Ferguson launched a legal action in February against the Act, particularly the clause that defined marriage as between a man and a woman.
He was later joined in the action by Maryellen Jackson and gay rights charity OutBermuda.
Mr Justice Kawaley ruled the DPA was against the Constitution in May and the Government appealed the decision.
However, the Court of Appeal dismissed the challenge and reinstated same-sex marriages.
The Privy Council’s website said its judicial arm had to be satisfied that a case raised “a point of general public importance” before it heard an appeal.
Mr Ferguson said: “The Government’s efforts to repeal same-sex marriage have come at quite a cost, not only monetarily, but also in terms of the impact on Bermuda’s LGBT community, and our island’s reputation overseas.
“The courts have not found merit in the Government’s legal defence thus far, and are highly unlikely to do so upon appeal.
“At this point, an appeal to the Privy Council would merely serve to suit a political purpose. I implore the Government to stop playing politics with the right to same-sex marriage. Let the law uphold the dignity of all Bermudians.”
Mark Pettingill, lawyer for Mr Ferguson, hoped the Government would think about its course of action.
He said: “Hopefully, this is a position to review carefully their prospects of a successful appeal to the Privy Council and the consideration of the costs and the very real likelihood that they simply will not succeed. I hope in this situation that common sense prevails as opposed to political motivation and that good law prevails as opposed to pushing a manifesto promise further than it has to go.”
He added: “We are where we are and I think we need to move on. “We can’t flip-flop any further. As a jurisdiction, we will be a laughing stock, in my eyes, of the right-thinking international community, which includes all of our major trading partners, all of our major sources of tourism, all of the places that we, as Bermudians, like to visit.
“When we speak about that group of other countries, we’re talking about our closest friends and neighbours.”
Craig Cannonier, the One Bermuda Alliance leader, said last night: “Government’s decision to spend potentially hundreds of thousands of dollars appealing the same sex ruling is a kick in the teeth to Mrs and Mrs Bermuda, whose shoulders are burdened by the weight of new taxes.
“And at a time when schools do not even have working fire alarms, how can Government possibly justify even further expenditure on this issue? People must start taking notice of — and question — Government’s priorities.”
Mr Cannonier said messages circulated before the appeal application was announced about “a possible march on Parliament” today to call for further court action from the Government. He asked: “Did Government cave in to the threat of the kind of marches they helped to orchestrate while in Opposition?” Mr Cannonier said: “The One Bermuda Alliance has stated that this was a matter for the courts and that it would abide by the court rulings. Three times the courts have ruled in favour of same-sex marriage.
“It is time this Government got the message and put the enormous amount of money needed to pursue this case to the Privy Council to better use — starting with working school fire alarms.”
OutBermuda spokesman Adrian Hartnett-Beasley said: “Bermudians are a very fair-minded and patient people. We strongly believe, however, that enough is enough. It is time to end futile appeals that have already wasted hundreds of thousands of taxpayers’ dollars. Let’s agree to not waste even one more.”
OutBermuda director Zakiya Johnson Lord said: “Our courts have consistently reaffirmed the equal right of same-sex couples to marry.
“To fan the flames of discrimination is irresponsible and costly, on all levels. We want to come together. Marriage equality has come to our shores. Let’s put this in the “done” column and keep moving forward together as a people.”
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