Dissenting opinion may yet win same-sex marriage fight
Different sections of the community will be celebrating or mourning this week after the Privy Council upheld the Government’s laws creating civil unions for same-sex couples but banning same-sex marriages.
While the decision, by four judges of Bermuda’s highest court of appeal against one dissenter, might seem to draw line on this issue, that is unlikely, given the direction in which public sentiment towards same-sex relationships is trending in Bermuda and the world.
It is also unlikely to go away because it is very possible over time, and perhaps over not much time, that the arguments of the dissenting judge, Lord Sales, will come to be more persuasive.
At least for now, this does mean the end of attempts to bring about this change through the courts and it will move the debate back to the legislature where in terms of lasting change, it may be better suited.
The majority judges in the case rejected the idea that the Government had acted with a religious purpose in banning same-sex marriage. Had it found in favour of this argument, it could have held that the law was unconstitutional.
But the court also rejected the broader argument that the Government through passing the law had prevented individuals from exercising their own consciences through engaging in a same-sex marriage.
The majority argued that an individual’s belief in the validity of same-sex marriage is not interfered with by the state refusing to legally recognise same-sex marriage.
The judgment said: “The respondents are free to argue forcefully in favour of such recognition, and churches or other religious bodies may carry out marriage ceremonies for same-sex couples and recognise those unions as a matter of religious practice.”
But the judges held, essentially, that simply having a belief does not mean that belief should be enshrined in law.
The judges also rejected the idea that a ban on gay marriage meant the individual was not protected from discrimination on the ground of sexual orientation, as is maintained in the Human Rights Act. It should be noted that MPs specifically excluded this law from that Act.
The judges said that international courts had rejected the idea that the protection against discrimination on the basis of sexual orientation inevitably forced a state to recognise same-sex marriage.
In essence, the judges are saying there is no constitutional reason not to recognise same-sex marriage, but the Government is not obliged under the Constitution to accept it, either.
So a change in the law is possible, but it will have to come when a government or majority of Members of Parliament who will support such a change are elected. This may prove — as with the changes in the Human Rights Act to prevent discrimination on the basis of sexual orientation — to be a more permanent solution and history suggests it could come more quickly than one might expect.
Whether that is the case or whether there will be legal challenges in the future, Lord Sales’s framing of the opposite argument will be crucial.
He argues: “If your conscience says you ought to get married but you cannot do so, that is an interference with your enjoyment of your freedom of conscience. And, as it seems to me, a state which allows opposite-sex couples to give expression to their conscientious beliefs about entering into marriage by providing a facility for civil marriage and by affording legal recognition to marriages entered into according to religious rites, but which denies those things to same-sex couples who hold such beliefs, also hinders and interferes with the enjoyment of their freedom of conscience, including their ability to manifest their belief in practice and observance (as it is put in section 8 of the Constitution).
“It follows that I do not agree with Lord Hodge and Lady Arden that the relevant conscientious beliefs in this case are to be characterised as a ‘political belief’ to the effect that the state should recognise same-sex marriages. Many people may hold a belief of that character, and they may do so whether they are gay or not, in a relationship or not.
“In my opinion, by contrast, the relevant beliefs in this case are deeply held religious or ethical convictions of individuals as to the manner in which they should live their own lives. The only way in which a person who has the religious or ethical belief that to be in an intimate committed relationship one should be married can ‘enjoy’ that belief is by getting married when they feel they should do so.
“For this reason, the relevant beliefs of the respondents cannot be compared to political beliefs such as communism or pacifism. Political beliefs relate to what the state should do. The beliefs of the respondents are concerned with how they themselves should live.
“One can live openly as a communist or a pacifist without the state adhering to that position, but one cannot live in accordance with a religious or ethical belief that one should be married if one is not allowed to marry. In modern society, marriage has evolved from being a purely religious institution defined by traditional religion into an institution regarded by many as the proper way, irrespective of faith, to frame and honour an intimate committed relationship.”
This is like arguing that a central part of a committed Christian’s belief is the taking of communion. If a government ruled that you could believe in the correctness of taking communion, but refuse to allow you to actually commit the act, then this would prevent you from exercising your faith.
In the same way, a same-sex couple who are not allowed to be in a fully committed relationship through marriage — unlike their different-sex peers — are being denied the ability to fully exercise their consciences, and that must surely be wrong.
This argument is compelling and history suggests that this may turn out to be similar to another infamous “separate but equal” case. In 1896, Justice John Marshall Harlan made a famous dissent against a majority in the US Supreme Court, which upheld that Black and White Americans were “separate but equal”.
Lord Sales may not have won the battle in the Privy Council when domestic partnerships were found to be separate but equal to marriage, but his argument, like Justice Harlan’s, may yet win the war.
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