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Court of Appeal ruling likely ‘unappealable’

The Bermuda Government could face a legal bill “in the millions” for the fight against same-sex marriage if it appeals to the Privy Council, a lawyer involved in the case warned yesterday.

Rod Attride-Stirling, who represented parties including Maryellen Jackson and gay rights charity OutBermuda, said in addition to paying for a British lawyer, the Government will have to pay the legal expenses of both sides of the Court of Appeal hearing.

He added: “The Government have a right to appeal. But the cost to date for the Government will be in the millions of dollars and at some point the Government will have to stop and consider whether it is fiscally responsible to continue to throw money at this.

“There is a costs order, and it was reported that they may have spent $400,000 hiring James Guthrie, who is one of the leading Queen's Counsel in this area of practice. I don't know, but I suspect that he will be telling them that this judgment is unappealable.”

Mr Attride-Stirling said: “Of course, it is new law and whenever you have an issue that is new law, they can appeal it.

He added: “I believe the result will be the same. I don't think this is appealable.”

The Government said the cost of the legal battle so far had not been added up, but that the figure will be released when available. Mr Attride-Stirling said the case was won on two legal grounds.

The first was the section that revoked same-sex marriage had a religious purpose. Mr Attride-Stirling explained: “There is case law that says you are not permitted in a secular society, in a democratic society, to ever pass legislation for a religious purpose.

“The Court of Appeal accepted the evidence, and there was quite a bit of evidence, including statements by Wayne Furbert, MP, and an admission by Walton Brown, MP, that those provisions were being introduced to address religious concerns.

“On that basis alone the revocation provisions failed. We satisfied the judges that if we won on that basis, the rest of it was academic, but the judges went on to consider the effect.”

Mr Attride-Stirling said the effect of the provision would be to infringe on freedom of conscience, which is protected by the Bermuda Constitution.

He added: “We were able to satisfy the court there were people who had a deeply held belief, a conscientiously held belief, in the institution of marriage.

“It's easy to imagine a gay person living in Bermuda that values marriage highly, has a strong belief in marriage, and that belief can be based on religious grounds or cultural grounds.

“There can be an atheist who has a strongly held belief in marriage. Modern examples of constitutionally protected conscientious beliefs include being a vegan, being a pacifist, wanting to join a trade union or be opposed joining a trade union.”

Mr Attride-Stirling said constitutional rights could be limited with evidence of justification, but the Government provided none.

The Government has still to reveal if it will appeal the latest set back to the Privy Council, which sits in London.

However, Mr Attride-Stirling predicted the Privy Council would agree with the Court of Appeal. He added: “You can never be certain, but I can say with a high degree of confidence that the Privy Council would decide it the same.”

Mr Attride-Stirling said someone had suggested that the Government might use a Privy Council ruling as part of an argument for independence, but he dismissed the idea.

He said: “The [Progressive Labour Party] have said categorically that if they ever took Bermuda independent, they would retain the right of appeal to the Privy Council, so whether Bermuda remains a British territory or not, we would have right of appeal to the Privy Council.

“Our Court of Appeal would likely look the same also, so being independent will not whatsoever alter the legal decisions.”

Friday's ruling — which legalised same-sex marriage in Bermuda for the second time — received international attention.

Huffington Post, the Jamaica Observer and news agency Reuters all published stories on the decision.

The ruling will also affect cruise ships registered in the island, including Carnival and Cunard vessels.

A spokesman for Carnival said yesterday: “We are pleased to see a favourable outcome for equality and the LGBTQ community.”

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Freedom of conscience: Rod Attride-Stirling

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Published November 27, 2018 at 8:00 am (Updated November 27, 2018 at 9:12 am)

Court of Appeal ruling likely ‘unappealable’

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