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European court asks Britain to defend island’s SSM stance

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The European Court of Human Rights building in Strasbourg, France (File photograph)

A response was invited from the British Government after the European Court of Human Rights received complaints that cancelling legal recognition of same-sex marriages in Bermuda was in violation of international treaty commitments.

The court said that about 15 per cent of applications go through the process each year.

A document on its website showed that seven applicants — six Bermudians and a non-Bermudian resident of the island — complained under Article 12 of the European Convention on Human Rights “about the revocation of the legal recognition of same-sex marriage in Bermuda” owing to Section 53 of the Domestic Partnership Act 2018, which limited marriage to between a man and a woman.

They, along with a Hamilton church, also complained of a violation under Article 9 “based on their belief in same-sex marriage and/or their desire to take part in legally recognised rites of marriage in accordance with their faith or philosophical or moral convictions”.

Applicants claim that the revocation of legally recognised same-sex marriages in Bermuda is in violation of their human rights (File photograph)

Article 9, which is about freedom of thought, conscience and religion, and Article 12, the right to marry, were to be read together with Article 14 — prohibition of discrimination.

Same-sex marriages in Bermuda were allowed in May 2017; deemed unlawful by the DPA, which came into effect in June 2018; permitted again in November 2018 after a Court of Appeal ruling; and again banned by a Privy Council decision on the legislation in March 2022.

Nicola Barker, of the University of Liverpool’s School of Law and Social Justice, said in a blog that as the signatory party to the convention and the state responsible for Bermuda’s international relations, Britain was “tasked with defending” the revocation.

She wrote in the piece published online: “Just as it would be a clear violation of Article 12 … to abolish legally recognised marriage entirely and replace it with domestic partnerships for all couples, it must also be a violation of Article 12 and/or Article 14 … to abolish marriage for some couples based on their sexual orientation and replace it with a domestic partnership provision, once such marriages had been established according to national law.”

A court document showed that applicants included Roderick Ferguson, Julia Aidoo-Saltus, Peter Carpenter, Gabby Jackson, David Northcott and Wesley Methodist Church of Bermuda.

Two others were listed by initials only — DD and JP.

Dr Barker’s blog, which said that she was one of the authors of the application made to the human rights court, explained: “The applicants here are seven individuals and a church, which performs legally recognised marriage ceremonies as part of the manifestation of its religious beliefs in the institution of marriage — the legal and religious elements of which are closely intertwined, possibly indivisible.

“For this church, this belief in the institution of marriage includes same-sex marriage.

“In the domestic proceedings, the Bermuda Supreme Court and Court of Appeal had both found the revocation to be unconstitutional on the basis that it violated the right to manifest religious and non-religious beliefs, among other grounds.

“However, the Judicial Committee of the Privy Council in London, sitting as the final appellate court for Bermuda, upheld the Bermuda Government’s appeal in a 4-1 decision.”

The piece added: “The state has a duty of neutrality and impartiality with regard to religious belief, but in this case has revoked the ability of some individuals and religious bodies to manifest their belief in same-sex marriage because those who hold different religious and non-religious beliefs objected to them doing so.”

It pointed out: “Each of the four nations of the UK plus 12 of the 19 Overseas Territories and crown dependencies also recognise same-sex marriage.

“While the European Court of Human Rights has previously held that same-sex couples cannot yet demand that same-sex marriage is introduced, through this case we will find out whether, once it has been introduced in national law, same-sex marriage is a secure and permanent right or one that can be arbitrarily revoked with a change in government.”

Dr Barker told The Royal Gazettelast year that arguments about the Domestic Partnership Act made in Bermuda courts and at the Privy Council were limited to provisions of the Constitution, which did not include the articles 12 and 14 rights.

The application to the European court, which is based in Strasbourg, France, was lodged last July and was “communicated” to Britain at the end of May.

A spokesman for the court said that not all applications are notified to respondent governments.

He added: “Approximately 15 per cent of applications go through to the notification procedure in a given year.”

The spokesman explained: “When the court gives notification of an application, it invites the respondent government to submit their observations within 16 weeks.

“Once these observations have been received, they will be sent to the applicant party to submit written observations in reply, usually together with any claim for just satisfaction under Article 41, within a time limit of six weeks.”

The spokesman said: “The court will then make a decision on admissibility, and, if it has been ruled admissible, will give a judgment at the same time on the merits of the case, that is to say if there has been a violation or no violation.

“Other possibilities include the parties coming to a friendly settlement which the court accepts, or the government making a unilateral declaration — for example, offering recompense — that the court accepts.”

A court information paper explained: “The court is not empowered to overrule national decisions or annul national laws.”

It added: “The court does not act as a court of appeal in relation to national courts; it does not rehear cases, it cannot quash, vary or revise their decisions.”

Britain’s Foreign, Commonwealth and Development Office was contacted by the Gazette but said it does not comment on continuing litigation.

Potted history

Same-sex marriages were allowed in Bermuda from May 2017 after the Supreme Court ruled that the right was guaranteed by the Human Rights Act 1981, which since 2013 had prohibited discrimination on the grounds of sexual orientation.

The Progressive Labour Party was elected two months later, having said in its manifesto: “We accept that same-sex couples should have similar legal benefits as heterosexual couples, save and except for marriage, and will introduce legislation to achieve this aim.”

In December 2017, legislators passed the Domestic Partnership Act, which recognised same-sex marriages that had already taken place but prohibited more.

Section 53 confined marriage to between a man and a woman and was the subject of a legal challenge, with the Supreme Court ruling in May 2018 that it was against the Constitution.

A stay on the effect of the decision to allow time for the Government to appeal meant that same-sex marriages were no longer allowed; the legislation came into force the following month.

The Court of Appeal found in November 2018 that Section 53 was included for a religious purpose, which is not allowed under Bermuda’s secular Constitution.

A request was made by the Government to take the case to the Privy Council in London, the island’s highest court of appeal, where judges were split 4-1 in their ruling last year.

The majority found that the legislation was not unconstitutional and same-sex marriage remained unlawful.

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Published July 13, 2023 at 8:00 am (Updated July 13, 2023 at 8:00 am)

European court asks Britain to defend island’s SSM stance

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