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The solution? Domestic partnerships for all

Between a rock and a hard place: Walton Brown has been the PLP’s most steadfast proponent of human rights but has had to compromise his beliefs on same-sex marriage to pacify the masses (photograph by Blaire simmons)

The Domestic Partnership Act will partially abolish same-sex marriage in Bermuda and create a three-tier system in which heterosexual couples can choose between marriage or domestic partnership, same-sex marriages that were enacted before this Bill coming into force will continue to exist, and future same-sex relationships can be recognised only through domestic partnership.

This situation is different from that in other jurisdictions that have prohibited same-sex marriages before they have taken place. Once the decision has been taken to abolish the right to marry of one group on the basis that another segment of the community disapproves of their marriage, how secure can other Bermudian married couples be?

For example, according to the 2010 census, Catholicism is closely behind Anglicanism as the second-most prominent religious group in Bermuda. Should married divorcees be concerned that they may be the next group to be relegated to domestic partnerships on the basis that their second marriage goes against the religious values of a large group of other Bermudians?

Preserve Marriage does not support the introduction of domestic partnerships; this provision is a political compromise that it sees as an inevitable step towards same-sex marriage. This assertion appears at first glance to be difficult to substantiate given that in this case it is clearly a step away from same-sex marriage, but its position is that “separate but equal” provisions would eventually be seen to be discriminatory.

This is undoubtedly correct. There is absolutely no rationale for creating a separate legal provision that largely mirrors marriage other than to send a message that same-sex relationships are deserving of a lesser status than heterosexual relationships. It is no doubt particularly galling for LGBTQ Bermudians that this message is sent while rolling back from an equality that had already been enacted.

It is also a situation that is very likely at some point in the future to be found to be contrary to the European Convention on Human Rights, to which Bermuda is subject. The European Court of Human Rights gives a wide “margin of appreciation” — in other words, a certain discretion — to national governments in areas that are socially or politically contentious and on which there is no clear consensus between the member states.

As such, it has so far declined to find that same-sex marriage is required under the convention. However, as more European states recognise same-sex marriage, this margin will narrow and eventually the court will find that allowing heterosexual but not same-sex couples to marry is discriminatory.

At this point, Britain will have a difficult decision to make: either overturn Bermuda’s Domestic Partnership Act through primary legislation from the British Parliament, or be responsible for Bermuda’s lack of compliance with its international obligations under the convention.

There is, however, an option that has not been considered in Bermuda and which could protect both religious freedom and equal treatment of same-sex relationships: abolish the civil status of marriage entirely and replace it with domestic partnerships for everyone. This would allow individual religious groups in Bermuda the freedom to define marriage in accordance with their own religious beliefs and to perform marriages only between those couples that meet their criteria, and there would be no discrimination in law between same-sex and different-sex couples who are all equally recognised as domestic partners, with marriage conferring no legal status for anyone.

This would clearly have been a radical proposition, but if marriage can be removed from Bermudian same-sex couples and replaced with domestic partnerships, why not treat all Bermudians the same?

It would have been an ironic ending to a story that began with a campaign to “preserve marriage”, but it would have also been a solution that avoided the need to carve out an exception to the Human Rights Act and would have protected Bermuda from a future violation of Britain’s international obligations.

Most importantly, it would have affirmed the equality of all Bermudians, whether gay or straight, religious or non-religious. It may also eventually be the only way to “preserve” marriage as heterosexual.

And those, heterosexual, Bermudians who might object that their relationship would not now be recognised by other countries when they travel overseas would be reminded of the old saying: what’s good for the goose is good for the gander.

Nicola Barker PhD is a Reader in Law at the University of Kent who has published extensively on same-sex marriage and is writing about the Bermuda Constitution. She delivered a public lecture at Bermuda College in 2013 about the Church of England’s response to Britain introducing same-sex marriage, and spoke at the Human Rights After Emancipation Conference organised by the Centre for Justice in 2014