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Court rules in favour of same-sex marriage

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Victory is sweet: Julia and Judith Aidoo-Saltus, left, the first gay couple to marry in Bermuda, Maryellen Jackson, Rod Ferguson and his sister Emily celebrate Chief Justice Ian Kawaley’s judgment yesterday (Photograph by Akil Simmons)

Gay couples won the right to marry yesterday for the second time in little more than a year, but the Government said it would appeal the Supreme Court decision to reverse the ban on same-sex marriage.

Chief Justice Ian Kawaley upheld a constitutional challenge against the Domestic Partnership Act, delivering a judgment that declared invalid the parts of the legislation which revoked marriage equality.

His ruling was greeted with a round of applause from a packed public gallery and joyful celebrations outside the courtroom.

Several hours later, Walton Brown, the Minister of Home Affairs, announced the judgment would be appealed “subject to any legal advice that we receive”.

Mr Justice Kawaley’s ruling does not take immediate effect because he agreed to an application by Solicitor-General Melvin Douglas, representing the Attorney-General, for a six-week stay to allow the Government to decide whether to appeal.

During that period, gay couples will only be able to apply to enter into domestic partnerships.

Mr Brown said: “We are pleased that the Chief Justice has stayed the decision until an appeal can be submitted.”

Mr Justice Kawaley said in his ruling that the sections of the Act that revoked the right to same-sex marriage were invalid because they favoured one set of beliefs about marriage over another and were inconsistent with provisions in the Constitution that gave the right to freedom of conscience and creed.

After the hearing, gay Bermudians Rod Ferguson and Maryellen Jackson, who launched the civil proceedings, along with charity OutBermuda, said they were delighted with the outcome.

Mr Ferguson said: “Obviously the stay is disappointing, but the win is amazing. The feeling is incredible. I’m so excited. This is a win for equality, for Bermuda, for all of us.”

Ms Jackson added: “It is amazing to be a part of it and everyone wins.”

Mark Pettingill, lawyer for Mr Ferguson, said: “We’re thrilled. I can’t say there’s any other way to put it. This is justice prevailed. We fought so long so it would prevail and the right thing has been done.”

He added that he was optimistic the matter would not return to the courts, despite Mr Brown’s statement.

Mr Pettingill said: “I remain hopeful common sense will prevail after they take advice as the minister indicated they would do before appealing.”

Rod Attride-Stirling, who represented Ms Jackson and OutBermuda, said: “Human rights mean rights for all humans and there is no question that the decision has been correctly decided.

“As for the appeal, it will be a short wait, but I think that we will be vindicated.”

In his written judgment, the Chief Justice said the complainants were not seeking the right to compel people of opposing beliefs to celebrate or enter into same-sex marriage.

“They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice,” he said.

“Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law.

“But, in return for the law protecting their own beliefs, they cannot require the law to deprive persons who believe in same-sex marriage of respect and legal protection for their opposing beliefs.”

The DPA was passed by Parliament in December to reverse a Supreme Court ruling from May last year which enabled gay couples to tie the knot.

The new legislation came into force on Friday, revoking the right of gay couples to marry and offering them — and heterosexual couples — legally recognised civil unions.

The Chief Justice found the DPA was inconsistent with provisions in the Constitution giving the right to freedom of conscience and outlawing discrimination on the basis of creed.

He quoted an analogy he said was put forward “evocatively” by Mr Pettingill during last month’s hearing on the case.

Mr Pettingill argued that same-sex couples being allowed to participate in domestic partnerships but not marriages was akin to people of colour in Bermuda being permitted to enter the theatre but required to sit in special seats.

It wasn’t an answer, Mr Pettingill said, for the Crown to say being let into the theatre meant no discrimination was taking place.

“No reasonable court, properly directing itself, could possibly find that providing differing types of legal recognition for same-sex and heterosexual couples was not differential treatment in general terms,” said Mr Justice Kawaley.

Mr Attride-Stirling asked the court to consider the advantages the DPA conferred on those who believed in traditional marriage.

Mr Justice Kawaley agreed that those advantages “took the form of the state solely recognising a form of marriage which that clearly identified group of believers adhered to…

“…this group was clearly preferred on grounds which were wholly or mainly attributable to their beliefs.”

He said his decision “vindicates the principle that Parliament cannot impose the religious preferences of any one group on the society as a whole through legislation of general application”.

The Chief Justice added: “The present case was aggravated by the fact that the DPA took away legal rights which had only recently been recognised by the courts ...”

The passing of the DPA made Bermuda unique as the only country in the world to have allowed gay marriage and then revoked that right.

It prompted a firestorm of criticism here and abroad, leading to Mr Ferguson’s decision to sue the Attorney-General.

Global news media reported on yesterday’s decision, with The Independent, BuzzFeed, Metro Weekly, Travel Weekly and the Daily Beast among the outlets publishing stories.

Same-sex marriage Ruling: Greg Godwin-DeRoche, Winston Godwin-DeRoche, Rod Ferguson and Maryellen Jackson (Photograph by Akil Simmons)
Chief Justice Ian Kawaley (File photograph by Akil Simmons)
Judith and Julia Aidoo-Saltus, the first gay couple to marry in Bermuda, outside the Supreme Court after the ruling (Photograph by Akil Simmons)