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Same-sex marriage ban is not discriminatory, QC tells Privy Council

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Jonathan Crow QC
Same sex marriage in Bermuda (Infographic by Terrina Nolan)

The legal battle over same-sex marriage in Bermuda began in London this morning as a senior UK lawyer argued the legislated ban on such unions was not discriminatory.

Jonathan Crow, QC, representing the Attorney-General of Bermuda, argued that legislation can have a religious purpose – provided it does not have a negative effect on the rights of the public.

Mr Crow said: “It is the effect of the purpose that makes it an offence to the freedom of religious conscience.”

He added that the courts should not assume the “collective purpose” of Parliament based on comments by campaign groups or individual parliamentarians.

Mr Crow said: “There may well have been individuals who were motivated by religious conviction to oppose same-sex marriage, but looking at the words and motives of individuals in advocating that does not answer the question as to what the collective purpose of parliament was in enacting a package of legislation which happened to include a clarification that same-sex marriage was not to be recognised.”

He said the Domestic Partnership Act – which halted same-sex marriages while introducing domestic partnerships for couples – was highlighted in the Progressive Labour Party election platform as a compromise solution.

Mr Crow said that OutBermuda had itself argued in favour of compromise “in the best interest of Bermuda” prior to the 2016 referendum on the subject of same-sex marriage.

He said: “A litigant is trying to achieve through the courts what it couldn’t achieve through the ballot box, and didn’t advocate through the ballot box.

“That is the context in which this litigation is being brought.”

Mr Crow said the case was not a matter of discrimination on the basis of sexual orientation as the Domestic Partnership Act specifically has primacy over Bermuda’s Human Rights Act.

He said there were three issues to be heard by the Privy Council – if the legislation was unconstitutional because it had a mainly religious purpose, if it went against freedom of conscience or if it was discriminatory because it hindered the ability to practice religious beliefs.

Mr Crow said the argument as put forward by the respondents suggested that legislation with a religious purpose necessarily breaches freedom of conscience.

He said while such legislation could potentially go against the constitutional right, it was not a guarantee and the respondents needed to show that there was an actual negative impact.

Mr Crow also argued that if the Privy Council was to consider the purpose of the legislation, they should look at is as a whole rather than at clauses individually.

He said: “If you lift out one provision and view its purpose in isolation you are doing violence to the compromise nature as a whole.”

Mr Crow added that constitutional rights to freedom of conscience do not require governments to manifest the belief in the form of a legal status.

He said: “Marriage is not a unilateral act by an individual. Marriage is an interaction between the state and the individuals by means of civil law.”

Mr Crow said freedom of conscience protects “worship, teaching, practice and observation” of beliefs, but not the right to demand same-sex marriage from the Government.

He added that the courts needed to consider the circumstances in Bermuda that led to the legislation and the courts should be hesitant to rewrite “delicate” policies.

Lord David Pannick, who represented the respondents including OutBermuda and other parties who fought against the DPA, said that while there may have been a “traditional” perspective of marriage as between a man and a woman, that view has changed.

Lord Pannick added: “Tradition is no answer to a constitutional claim.”

He argued that by its nature, the enactment of legislation with a religious purpose impacts those who do not share that belief.

And while Lord Pannick accepted that the Minister of Home Affairs at the time, Walton Brown, had pushed the legislation as a compromise, he said that the compromise was based “exclusively” on the religious objections.

He said: “There was no secular objective which the minister was advancing other than a compromise to accommodate the religious viewpoint.

“We say this is a case where the minister acted ‘at the behest’ of the religious community.”

Lord Pannick said that while the appellants urged the court not to interfere with the policies enacted by Government, they ignored that the courts are tasked with assessing if legislation breached the Constitution.

He added that when the courts consider the Constitution, they should consider “evolving standards of decency” rather than taking a rigid approach.

Lord Pannick added: “Mr Crow’s approach seeks to narrow and confine the words of the Constitution by an over-literal interpretation that does not adequately address the need to look at substance and the need to look at evolving standards.”

He will continue his arguments when the hearing resumes tomorrow morning.

The legal battle over marriage equality in Bermuda came to the forefront in 2017 when the Supreme Court found that the ban on same-sex marriage was discrimination under the Human Rights Act.

Government subsequently moved forward with the Domestic Partnership Act 2018, which recognised the same-sex marriages that had taken place but banned further such marriages.

Instead, the legislation offered domestic partnerships as an option for same-sex unions.

But the Court of Appeal found the new legislation was unconstitutional because it had a primarily religious purpose.

That court also found the legislation went against the Constitutional right to freedom of conscience.

The Attorney-General subsequently launched an appeal to the Privy Council – Bermuda’s highest court.

Since the 2017 judgment, 30 same-sex couples have tied the knot in Bermuda.

There have been 16 domestic partnerships, two of which were for same-sex couples.

The Royal Gazette will livestream tomorrow’s same-sex marriage appeal before the Privy Council in London starting at 6.30am.

If The Royal Gazette is unable to livestream the event for technical reasons, it can still be accessed at https://www.jcpc.uk/live/court-03.html

A recording of today’s hearing will be posted when it becomes available.

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Published February 03, 2021 at 10:19 pm (Updated February 04, 2021 at 11:50 am)

Same-sex marriage ban is not discriminatory, QC tells Privy Council

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