Closing arguments in same-sex marriage appeal
Same-sex marriage gives gay couples a “stamp of approval” not provided by domestic partnerships, a lawyer argued yesterday.
Mark Pettingill, who argued against a government appeal to reverse a Supreme Court decision to reinstate same-sex marriages, added that the removal of the right sent a clear signal of disapproval. He said: “To remove this recognition is to make a statement that the group from who it is removed is not worthy — that in some way it is wrong for them to be married.”
Mr Pettingill was speaking as he gave his closing arguments at the end of a three-day hearing in the Court of Appeal, where James Guthrie QC questioned the Constitutional grounds for an earlier ruling that struck down a ban on same-sex unions.
Mr Pettingill said that the Domestic Partnership Act that replaced same-sex marriage with civil unions inflicted a “negative social judgment by removing access to legal marriage from one group — and one group only”.
He added: “It can't help but be seen as lesser.
“That is what marriage gives and domestic partnership does not — the stamp of social approval and acceptance, and the ability to manifest the highest standard of love.”
Mr Guthrie claimed Mr Pettingill had interpreted the Bermuda Constitution the way he wanted it — not the way it was. He argued that UK legal cases had protected non-religious creeds such as pacifism and veganism, but did not extend to a belief in assisted suicide.
Mr Guthrie said: “What is being protected is not something specific, but something more general. Spiritual or philosophical convictions which have an identifiable formal content.”
The lawyer also argued that the DPA — including a clause which prohibited same-sex marriage — was not rooted “solely” in religious belief.
Mr Guthrie added the belief that marriage should only be between a man and a woman was not linked to any one religion.
He said Walton Brown, who tabled the legislation as Minister of Home Affairs, has said the Bill was intended as a compromise to ensure “peace”.
Mr Guthrie added: “If the purpose of the DPA was political, then it didn't have a solely religious purpose.”
The Attorney-General's Chambers argued in the initial grounds of appeal that a decision by Ian Kawaley, the former chief justice, was 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. The Government's legal team also argued that the Chief Justice stretched the definition of “creed” when he ruled that the DPA, which replaced marriage with a civil partnership arrangement, went against the Constitution.
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, which came to power in July last year, replaced same-sex marriage with domestic partnerships a few months later.
Mr Pettingill 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 found that a ban on same-sex marriage was at odds with the Constitution's guarantee of freedom of conscience and creed, and granted same sex couples the right to marry.