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Ruling could have international impact

Lawyer: Rod Attride-Stirling

A ruling by the Court of Appeal to allow same-sex marriage in Bermuda could have international implications, a lawyer involved in the case said yesterday.

Rod Attride-Stirling, who represented Maryellen Jackson and OutBermuda, said the judgment could be “the most important decision the country has ever produced” because it was the first to find in favour of same-sex marriage on the grounds of freedom of conscience.

He said: “No one has done this before. In all of the European Convention cases, they all dealt only with sexual orientation discrimination because that was considered the easy approach.

“This is revolutionary. This sets a precedent, a massive precedent, for other jurisdictions. It’s an incredibly important judgment for all of us in Bermuda and beyond.”

Mr Attride-Stirling explained the decision could be used to open doors for equal rights in countries which do not protect against discrimination based on sexual orientation.

He said: “The problem that many countries have is they don’t have sexual orientation discrimination protection, so they didn’t have that to hang their hat on.

“We just opened up a whole new avenue for marriage equality by arguing freedom of conscience.

“All those countries will now have the ability of running a whole new argument, and I expect to see more and more countries run arguments like these.”

Mr Attride-Stirling said the Cayman Islands were set to hear arguments about same-sex marriage in February, and that he expected the freedom of conscience argument will be put before the courts there.

The Bermuda Constitution does not protect against discrimination on the grounds of sexual orientation, but section 8 does protect freedom of conscience, which Mr Attride-Stirling argued was breached by the Domestic Partnership Act.

The Court of Appeal in a written judgment agreed with the decision of former Chief Justice Ian Kawaley that the state could not pass “a law of general application” that favoured people who were against same-sex marriage.

Sir Scott Baker, president of the Court of Appeal, wrote: “Section 8 of the Constitution is there to protect the beliefs of minorities and their freedom of conscience.

“Their freedom of conscience matters and is not lightly to be interfered with. Indeed, no evidence has been advanced by the appellant to justify that interference in the present case.”

He added: “It is true that the draughtsman of the Bermuda Constitution 50 years ago is unlikely to have had same-sex marriage in the forefront of his mind, or indeed in his mind at all, but that is not the point.

“It was drafted with sufficient flexibility to protect everyone’s freedom of conscience in a changing world. Interference with that freedom can be by both positive and negative acts, in this instance by the negative act of preventing same-sex couples having the right to marry.”

Government can apply to appeal the case to the Privy Council in London.

However, Mr Attride-Stirling said if the case did go to the Privy Council, it would be heard a panel of judges with “probably the most liberal bent we have ever had”.

Mr Attride-Stirling said: “It’s led by Lady Hale, who is the first female head of the English Supreme Court and one of the leading human rights lawyers in the UK. We relied on many of her judgments in this case.

“They recently promoted Lady Justice Arden to the Supreme Court in England, who will therefore sit on the Privy Council.

“We have in the Privy Council an amazing court and I don’t know if the Crown intend to go there, but if they do I think we would get a good reception.”

Mr Attride-Stirling added that if the Privy Council backed the freedom of conscience argument, it would give it added weight around the world.

He said: “On something like this, where freedom of conscience is everywhere, a decision would be binding everywhere that still recognises the Privy Council.”


June 2013: The Government passes amendments to the Human Rights Act to prevent discrimination on the grounds of sexual orientation.

July 2016: The Senate rejects amendments intended to define marriage as between a man and a woman after the changes were passed in the House of Assembly.

May 2017: Puisne Judge Charles-Etta Simmons rules in favour of Winston Godwin and Greg DeRoche, who argued their rights were breached by the Registrar’s refusal to post their marriage banns.

The ruling opens the door for other same-sex couples to marry in Bermuda, although Mr Godwin and DeRoche actually tie the knot in Toronto that month.

May 2017: Julia Saltus and Judith Aido become the first same-sex couple to marry on the island.

December 2017: The Government passes the Domestic Partnership Act, which recognises same-sex marriages that have already taken place but prohibits more marriages, and introduces domestic partnerships instead.

February 2018: Rod Ferguson launches a legal action against the DPA — in particular the clause that defines marriage as between a man and a woman.

The lawsuit is later joined by Maryellen Jackson and gay rights charity OutBermuda.

May 2018: Chief Justice Ian Kawaley rules the DPA is against the Constitution, but stays the effect of the decision to allow the Attorney-General time to launch an appeal.

November 2018: The Court of Appeal dismisses the Attorney-General’s appeal and refuses a stay, allowing same-sex marriages to proceed.

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