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Legal case to revoke SSM revealed

Argument challenged: Ian Kawaley, the former Chief Justice (File photograph by Akil Simmons)

The Bermuda Government’s legal grounds to revoke same-sex marriage can today be revealed in The Royal Gazette.

The case, set to go before the Court of Appeal tomorrow, is scheduled for three days.

The Attorney-General, represented by James Guthrie QC, a prominent English barrister, will challenge the constitutional basis for an earlier ruling that struck down a ban on the unions.

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.

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

But the notice of appeal, obtained by The Royal Gazette, argued that the grounds for Mr Justice Kawaley’s decision were not valid under the Constitution.

The document that laid out the Government’s case said that Mr Justice Kawaley made a mistake when he found that freedom of conscience, which includes freedom of thought and religion, could be applied to same-sex marriage.

It also maintained that the Chief Justice was wrong when he used previous cases that “depend on an element of compulsion or coercion which is absent in the present case”.

The Attorney-General’s Chambers will also challenge Mr Justice Kawaley’s decision to “ignore European case law” that the prohibition of same-sex marriage does not go against the European Convention on Human Rights — and that “social policy will normally be for Parliament, and not the court, to decide”.

The Government’s legal team also argued that the Chief Justice stretched the definition of “creed” when he ruled that the Domestic Partnership Act, which replaced marriage with a civil partnership arrangement, went against the Constitution.

The government appeal argued that the Constitution exempted marriage from laws designed to prevent discrimination.

The legal battle started when Winston Godwin, a Bermudian, and his Canadian fiancé, 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 and civil unions became law in February.

Mark Pettingill, the lawyer who represented Mr Godwin and Mr DeRoche, took up the case on behalf of Roderick Ferguson, a Bermudian who contested the civil unions as unconstitutional.

The case was joined by the charity OutBermuda and Bermudian Maryellen Jackson, both of whom were represented by lawyer Rod Attride-Stirling.

Mr Justice Kawaley’s ruling in June overturned the ban, and gay couples were once again granted the right to marry.

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

The controversy set religious groups against gay rights campaigners and the island was criticised in overseas media for its anti-same sex marriage stance and for being the first country in the world to legalise same-sex marriage and ban it again,

Chris Bryant, a Labour MP in the British Parliament in January asked Boris Johnson, then the Foreign Secretary, to block the “entirely retrograde step” to backtrack on marriage equality.

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