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Final same-sex marriage court battle begins tomorrow

Ringing the changes?: Same-sex marriage case set to go before Privy Council this week (File photograph)

The legal battle over marriage equality will be decided after a two-day virtual hearing which is due to start tomorrow in front of the Privy Council in London.

A panel of five judges at Bermuda’s highest court of appeal will hear the Government’s argument that same-sex marriage should be illegal – and a counterclaim that a ban is against the Constitution.

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But campaigners from both sides this week agreed that the Privy Council hearing would be the final legal word on the case.

Adrian Hartnett-Beasley, the chair of OutBermuda, said: “We are just looking forward to resolution.

“We are looking forward to the Privy Council upholding the decisions made by the three courts before them.

“The evidence is very clear in our case.”

He added that the controversy being at the final stage of appeal was "quite a comfort“.

Mr Hartnett-Beasley said: “It’s final clarity, certainty.

“We are looking forward, as an organisation, to moving past marriage equality. We have said this all along.

“Marriage equality is one issue, but it’s not the only issue.”

Melvyn Bassett, the chairman of Preserve Marriage and Family, which opposes same-sex marriage, asked: “We are going to the Privy Council. Isn’t that the end of the road?”

Dr Bassett ruled out further protests if the court ruled against the Government.

He said: “That’s it.”

But he insisted a recent poll that suggested a majority of people now favoured marriage equality was off the mark.

Dr Bassett said: “It is thousands of Bermudians opposed to same-sex marriage, not a handful.”

Renee Webb, a former Progressive Labour Party minister, who failed to get discrimination based on sexual orientation outlawed in 2006, said the outcome of this week’s case was important for the entire population.

She added: “It is a matter of principle that we should all fight for equal rights whether one is gay or not.

“Being gay is not the issue. The issue is for all people to be equal under the law.

“Human rights and equity should be for all.”

Ms Webb said: “I trust that the Privy Council will rule in favour of equality and inclusion under the law – for consenting adults to marry the person that they choose, without fear or favour.”

Mark Pettingill, who added the sexual orientation amendment to the Human Rights Act in 2013 when he was Attorney-General and who represented plaintiffs Winston Godwin and Greg DeRoche in an earlier discrimination case about same-sex marriage, also predicted the Government’s appeal would fail.

He said it would be “bizarre” for the country to have a group of people who were allowed to marry in a three-year window, but more were forbidden.

Mr Pettingill added: “It would just make a nonsense of the whole thing.”

Mr Godwin, who married his husband in Toronto and now lives there with him, said he hoped the court would rule in favour of same-sex marriage.

He highlighted that proponents of same-sex marriage had been successful so far.

Mr Godwin said: “Love won every time … I think it is done. Hopefully, this is where it ends.”

But human rights lawyer Peter Sanderson suggested earlier this month there was a “significant chance that the appeal will be upheld”.

He wrote on the RG website: “Although the SSM case was successful at the Supreme Court and Court of Appeal levels, it is by no means a slam-dunk case in the Privy Council.

“The Bermuda Constitution does not prevent discrimination on the grounds of sexual orientation and the case relies on a formulation of freedom of conscience that other courts have not accepted in equivalent contexts.”

Mr Sanderson asked: “Will the Privy Council go along with the lower, local courts' interpretations, or will they prefer to defer to a more conventional approach to the law and side with the democratic government's approach of domestic partnership status?”

Walter Roban, the home affairs minister, did not respond to an interview request.

He said earlier the case was important to Bermuda’s people and the Government wanted to go to the highest court of appeal to “get it right”.

A total of 30 gay couples have married – and one couple has divorced – since the battle started in 2017.

Public opinion may have shifted in favour of marriage equality in the last few years – a recent poll commissioned by gay rights charity OutBermuda found that 53 per cent of those surveyed supported it.

OutBermuda, one of the main respondents in the Privy Council case, earlier won judgments in its favour at the Supreme Court and the Court of Appeal on Constitutional grounds.

The rulings followed a judgment from the Supreme Court in 2017 in the Godwin case which found that a ban on same-sex marriage was discrimination under the Human Rights Act.

The first judgment paved the way for gay couples to tie the knot in Bermuda – with 10 weddings in 2017, 6 in 2018, 4 in 2019 and 10 in 2020.

The later judgments ruled that gay couples had the right to wed, despite a clause in the Domestic Partnership Act 2018 that ruled the unions were not valid.

The Court of Appeal ruling found that the clause in the new 2018 law, which introduced civil unions for gay and straight couples, was included for religious reasons, which is not allowed under Bermuda’s secular Constitution.

The appeal court also ruled the clause breached a Constitutional right to freedom of conscience.

* Tomorrow’s hearing at the Privy Council starts at 6.30am Bermuda time/10.30am UK time.

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Published February 02, 2021 at 8:49 am (Updated February 02, 2021 at 1:23 pm)

Final same-sex marriage court battle begins tomorrow

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