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Ruling may show world Bermuda is progressive

Analysing judgment: Venous Memari says ruling shows Constituion holds supremacy (Photo supplied)

Bermuda could show how progressive it is on a world stage if it allowed a Supreme Court ruling in favour of marriage equality to stand, a human rights lawyer said yesterday.

Venous Memari, managing director of civil rights group the Centre for Justice, said: “If left alone, the effect of this decision will be that Bermuda will be able to boast about having one of the most, if not the most, progressive laws in the world on marital equality.

“All couples, same sex and straight couples, are entitled to enter into a domestic partnership and enjoy the rights conferred by the Domestic Partnership Act or get married, if they so wish.”

Ms Memari was speaking after Chief Justice Ian Kawaley reversed a same-sex marriage ban that had been in force for less than a week.

The judgment was the latest twist in a long-running legal battle fought by campaigners for marriage equality.

The Supreme Court ruled last May that a denial of marriage rights to gay couples was discrimination under the Human Rights Act.

There have been 14 same-sex weddings on the island and six maritime weddings on Bermudian-registered ships since then.

Parliament passed the Domestic Partnership Act last December to revoke marriage equality and offered civil unions instead.

The law came into force at the start of this month.

Gay Bermudians Rod Ferguson and Maryellen Jackson, along with the charity OutBermuda, challenged the legislation on constitutional grounds and won their case against the Attorney-General on Wednesday.

Mr Justice Kawaley’s ruling has not yet taken effect because the Attorney-General was given a six-week stay to allow time to decide whether to appeal the decision.

Critics of the earlier Supreme Court judgment suggested it was wrong for a lone judge to make a decision which appeared to go against the will of Parliament.

Ms Memari said the case was about constitutional law and the judgment was timely, given the discussion about the Constitution as the island marked the 50th anniversary of universal adult suffrage and the 1968 Constitution Order.

She explained: “The judgment makes it clear that Parliament’s power to legislate is limited to acting within the confines of the Constitution. In other words, in Bermuda, it is the Constitution that is supreme, not the Legislature.”

Mr Justice Kawaley said in his written judgment that the legislative effect of a reversal of last year’s ruling on marriage equality was “wholly or mainly about a supposedly secular Parliament privileging majority beliefs about how marriage should be legally defined over minority beliefs”.

Ms Memari said: “The Chief Justice was guided by Commonwealth authorities on the secularist approach to governance, which our Constitution requires.

“Mr Justice Kawaley said in his written ruling that ‘Parliament may not validly promulgate laws which are motivated by a religious purpose’.

“He goes on to explain the broader principle that the ‘laws of a secular state may not validly impose the beliefs of religious majorities on minorities’.”

Mark Pettingill, Mr Ferguson’s lawyer, agreed it was important for people to understand that Bermuda was a constitutional democracy.

He said: “That is the guiding principle and that is above what may be the will of Parliament.”

The Centre for Justice is to hold a conference on the Constitution, featuring expert speakers on human rights and constitutional law, today from 9am to 4.30pm at Bermuda Underwater Exploration Institute