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Same-sex marriage battle resumes in court today

Same-Sex Marriage case: Greg DeRoche, Winston Godwin, Rod Ferguson and Maryellen Jackson (Photograph by Akil Simmons)

Same-sex marriage advocates have said their “eyes are on the prize” as the issue comes before the Court of Appeal today.

The hearing, scheduled for three days, will cover the Government’s appeal of a Supreme Court ruling that the Domestic Partnership Act was unconstitutional.

That June 6 landmark judgment was the latest twist in a legal saga dating back to July 2016.

Roderick Ferguson, a Bermudian who contested the civil unions as unconstitutional, said: “The DPA is a discriminatory law, plain and simple.

“Discrimination is a hostile action and that hostility wreaks damage on the recipients.

“We may not be able to eradicate discrimination against LGBT Bermudians in our society, but we mustn’t enshrine it into law, and I am shocked by the vigour with which the Government is trying to do just that.”

He added that he remained grateful for the original decision, and hoped it would be upheld by the Court of Appeal.

In a joint statement, he and co-applicant Maryellen Jackson, said: “We are humbled by the support given to us beginning with our original trial and we are staying our course in defending this appeal by the Government.

“There is much work to be done on the island to advance diversity and inclusion.

“This is one way that we are able to help affirm the experience of gay and lesbian Bermudians who recognise the importance of the institution of marriage for protecting their families.”

Adrian Hartnett-Beasley, spokesman for OutBermuda, added: “We have one aim: equality under the law for all loving Bermuda couples and our families.

“This week, we believe our highest court can only reach the same decision the Supreme Court made in June, when it ruled the Domestic Partnership Act violates our Constitution protecting not only our freedom of conscience but also by outlawing discrimination on the basis of creed.

“All our eyes are on the prize of equality.”

The legal battle started when Winston Godwin, a Bermudian, and his Canadian fiance, Greg DeRoche, were turned down by the Registrar-General’s office when they tried to file marriage banns two years ago.

Puisne Judge Charles-Etta Simmons found in May 2017 that a restriction of marriage to a man and a woman was against the Human Rights Act.

The ruling made same-sex marriages possible and the One Bermuda Alliance administration in power at the time decided not to appeal.

But the Progressive Labour Party government replaced same-sex marriage with domestic partnerships in December 2017.

Ian Kawaley, the former Chief Justice, found that a ban on same-sex marriage was at odds with the Constitution’s guarantee of freedom of conscience and creed, granting same sex couples the right to marry.

That ruling was put on hold for six weeks to allow the Government time to review its options and the Attorney-General’s Chambers filed an appeal weeks later.

According to court documents, the Government will argue Mr Justice Kawaley erred when he found that freedom of conscience — which includes freedom of thought and religion — could be applied to same-sex marriage.