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Same-sex marriage ban unconstitutional, Privy Council told

Lord Pannick QC

Same-sex marriage would not prevent people who believed that only people of opposite genders should be allowed to wed from the practice of their faith, a top lawyer said today.

Lord Pannick QC, for supporters of same-sex marriage before the Privy Council in London, said yesterday: “The wish of some people to live in a society in which other people are not allowed to marry because they are a same-sex couple is not a reasonable aim.”

He was speaking on the final day of a two-day hearing which will decide if the clause in the 2018 Domestic Partnership Act that banned same-sex marriage was legal.

The five member panel of senior UK judges reserved judgment and will hand down their decision at a later date.

Lord Pannick argued that Constitutional protections from discrimination based on creed should include individual beliefs as well as belief systems to ensure that any breaches were justified.

Lord Pannick said: “The real issue is justification. Is there an adequate justification to the schoolgirl she cannot wear a hijab, to say to the worker in the hospital they cannot wear a crucifix?

“We are very concerned that the narrow definition would exclude that entire category of questions.”

He said the ban on same-sex marriages would affect not only same-sex couples, but also people who wanted to celebrate or officiate at ceremonies.

But Lord Pannick added that people whose faith stipulated only opposite sex marriage would not suffer any harm if same-sex marriage was allowed.

Lord Pannick earlier argued that the ban on same-sex marriage was unconstitutional because it gave preference to one religious belief over others.

He said a law’s purpose was as important as its effect – and that legislation with a religious purpose should be quashed.

Lord Pannick added Bermuda was a multicultural country with people of different beliefs and it would be unconstitutional for Government to create a “hierarchy of beliefs” by showing preference.

He said: “If the state is legislating for the purpose of implementing a religious purpose, that is a breach of the promise that those freedoms will be protected.”

Lord Pannick agreed that some legislation has been crafted to protect the rights of religious groups, but there was a stark difference between legislation to protect the rights of a group and laws designed to advance the beliefs of another.

He said: “The objection in this case is that a particular belief is given priority in the area of marriage.”

Lord Pannick added that the clause in the DPA that banned same-sex marriage should never have been included.

He argued that, without the controversial clause, the legislation would protect the interests of both sides by not requiring churches to carry out same-sex marriages.

Lord Pannick said: “What has happened is the Government has acted at the behest of the religious groups and this is a frequent theme in anti-discrimination suits.”

He compared it to a theoretical case where a bartender refused to serve a Black customer, not because they were racist, but because their other customers were.

He highlighted comments made by the late Walton Brown, who tabled the legislation in the House of Assembly as the Minister of Home Affairs.

Mr Brown said the Bill was “not ideal” but that a balance had to be struck between those who favoured same-sex marriage and those who were opposed to marriage equality for religious reasons.

Lord Pannick said: “We accept that the minister was not personally motivated by religious views, but what he did was act on and because of religious members of the community.”

Mr Brown also highlighted a Private Member’s Bill which would also have banned same-sex marriage but did not include domestic partnerships.

The Bill, tabled by Progressive Labour Party MP Wayne Furbert, later the Cabinet Office minister, was backed by the House of Assembly but was voted down by the Senate.

Lord Pannick said: “It’s clear beyond argument that Mr Brown brings forward the compromise considered that they had no choice politically but to accommodate the wishes of the religious opponents of same-sex marriage.

“They had to do that because otherwise those religious opponents would push through a Bill that only needed the approval of the House to become law.”

He also argued that the DPA breached a Constitutional right to freedom of conscience – which he said extended beyond the “internal” practices suggested by the appellant.

Lord Pannick said: “This is not an exclusionary principle. It is designed to be widely embracing.”

He said there had been no justification arguments for the ban on same-sex marriage in the lower courts because no such evidence had been put forward by the Attorney-General.

Lord Pannick said: “I cannot think of any case where proportionality has been relied on, justification has been relied on, without some evidence, without the respondents telling the court through evidence what their case is.”

Lord Pannick also asked the Privy Council to not consider a letter penned by gay rights group OutBermuda before to a referendum on same-sex marriage that called for compromise.

He said the organisation worked in a political environment to advance the interests of the people it represented - but the Privy Council should focus on the law rather than public support, political support or “what can be achieved by the political world”.

Jonathan Crow, QC, for the Attorney-General, said the arguments boiled down to what the effects of the legislation would be, rather than its purpose.

Mr Crow urged the court to consider the purpose of the legislation in its totality, rather than look at individual provisions.

He added that when considering the purpose of the legislation, the court must consider the views of Parliament – not individual MPs.

The legislation was a compromise that “gave some to some, and some to others” so it did not have a solely religious purpose.

He said: “It is a package of compromise. It is not adhering to a single religious creed at the exclusion of all others.”

Mr Crow added that the court should focus on whether a Constitutional right had been hindered rather than if a right was taken away by the legislation.

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

Government later moved forward with the Domestic Partnership Act, which recognised same-sex marriages that had already taken place but banned further ones.

The legislation offered domestic partnerships as an option for same-sex couples instead.

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

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

The Attorney-General took the case to the Privy Council – Bermuda’s highest court of appeal.

A total of 30 same-sex couples have married in Bermuda since the 2017 judgment.

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

To see the recordings from the morning of Wednesday’ s hearing, click here and for the afternoon, click here

For yesterday morning’s session, click here and for the afternoon, click here

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Published February 05, 2021 at 8:48 am (Updated February 05, 2021 at 8:50 am)

Same-sex marriage ban unconstitutional, Privy Council told

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