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Banning same-sex marriage not unconstitutional – Privy Council

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Dissenting judgment: Lord Sales

Judges at the island’s highest court of appeal found that legislation banning same-sex marriage in Bermuda was not unconstitutional.

The Privy Council panel, which delivered its findings yesterday morning, was split four to one.

Its ruling came after two days of hearings in London more than a year ago on the case between the Attorney-General for Bermuda and Roderick Ferguson and others.

Lord Hodge, Lady Arden, Lord Reed and Dame Victoria Sharp agreed on three grounds but Lord Sales dissented and would have dismissed the appeal, based on one of those points.

The case was about whether the law of Bermuda recognised same-sex marriage.

Section 53 of the Domestic Partnership Act 2018 confined marriage to between a man and a woman.

The legislation added that its provisions were effective “notwithstanding anything to the contrary in the Human Rights Act”.

Respondents to the appeal — Mr Ferguson, OUTBermuda, Maryellen Jackson, Gordon Campbell, Sylvia Hayward Harris and the Parlour Tabernacle of the Vision Church of Bermuda — challenged the validity of S53.

Their argument was based on three grounds: that the clause was invalid because it was passed primarily or mainly for a religious purpose contrary to the secular Constitution; that S53 and related provisions of the Act contravened Section 8 of the Constitution because they hindered the enjoyment of beliefs in same-sex marriage as an institution recognised by law; and that it contravened Section 12 of the Constitution as it afforded different treatment to the respondents and others attributable to their description by creed.

The board found that there was no provision in the Constitution that would “nullify a legislative provision enacted by the Legislature on the ground that it had been enacted for a religious purpose”.

Its judgment added: “There is no formal declaration that the Constitution is a secular constitution which bars legislation for a religious purpose.”

The ruling said: “The right approach is to treat the DPA as a set of connected provisions which all had the same purpose, namely that of ending the dispute in Bermudian society over same-sex marriage.”

It added: “In the opinion of the board, the DPA was certainly not passed for a religious purpose.

“It was passed to bring about a democratic solution to a divisive debate in Bermuda over same-sex marriage and to do so in a way which accommodated the position of both sides to the debate.”

Judges highlighted that they accepted “the sincerity” of the respondents’ beliefs.

But the ruling added that the question was over “whether such beliefs qualify for protection under Section 8 of the Constitution” and, if so, whether the DPA clause interfered with those beliefs.

The board agreed with Jonathan Crow, QC, who represented the Government, that Section 8 did not “impose on the state an obligation to give legal recognition to same-sex marriage”.

Its ruling said: “First, neither the Government nor the Legislature has interfered in any way with the conscientiously held internal belief of any of the respondents that the law of Bermuda should give recognition to same-sex marriage.

“They remain free to hold such beliefs.

“Secondly, neither the Government nor the Legislature has interfered in any way with the respondents’ ability to manifest and propagate such a belief.

“The respondents are free to argue forcefully in favour of such recognition, marshalling, among others, the arguments contained in their affidavits or affirmations and those advanced by Lord Sales in his dissenting opinion.“

The judgment said that the DPA did not stop a church or other religious body from performing same-sex marriages and nor did it prevent secular ceremonies of a similar nature.

It added that any protection afforded in Section 8 of the Constitution to a “conscientiously held belief” did not “involve the state having to give effect to them” except in certain circumstances.

Taking another approach, the judges said that the respondents’ belief in the legal recognition of same-sex marriage was not an expression of conscience and that Section 8 "cannot be interpreted as requiring the state to give such legal recognition“.

They said that to do so would be inconsistent with the absence of any protection in the Constitution against discrimination on the ground of sexual orientation and the ability of the Legislature “expressly to disapply the operation” of the Human Rights Act.

Addressing the differing opinion of Lord Sales, the judgment said: “The board agrees with the view that marriage is an institution with profound religious, ethical and cultural significance.

“It recognises also the historical background of the stigmatisation, denigration and victimisation of gay people, which has motivated a drive to right a wrong through the recognition by society of a relationship of love and commitment between gay people.

“There is no doubt that the provision of domestic partnerships for same-sex couples and the restriction of marriage to couples of different sexes may create among gay people and those who support their aspirations a sense of exclusion and stigma.

“This is because many people may, as some of the respondents do, view a domestic partnership as inferior to the institution of marriage, notwithstanding that the civil rights conferred on the parties to a domestic partnership are substantially the same as those who are parties to a marriage.

“There is force in the policy argument in favour of the recognition of same-sex marriage on the ground that it would accommodate diversity within society.”

It added: “Where the board respectfully differs from Lord Sales is that it cannot agree that international instruments and other countries’ constitutions may be used to read into the Constitution a right to the legal recognition of same-sex marriage.”

The ruling explained that the respondents argued that a ban on same-sex marriage was unconstitutional under Section 12 of the Constitution “because their belief in legally recognised same-sex marriage constitutes a ‘creed’”.

It said that the island’s Court of Appeal, in its 2018 judgment, rejected the respondents’ arguments because the section applied to discrimination against a person on the ground of their system of beliefs, not a single belief.

The Privy Council judges were “satisfied that the Court of Appeal was correct to do so”.

Lord Sales highlighted that he reached a different conclusion to the others.

He said that he “would have dismissed the appeal on the basis of the second issue”, which related to Section 8 of the Constitution.

Lord Sales disagreed with the majority that the beliefs held by the respondents in the case were political.

He added: “Political beliefs relate to what the state should do.

“The beliefs of the respondents are concerned with how they themselves should live.

“One can live openly as a communist or a pacifist without the state adhering to that position, but one cannot live in accordance with a religious or ethical belief that one should be married if one is not allowed to marry.”

Lord Sales said: “An individual who is gay and who believes in a moral obligation to marry or at least in the moral desirability of marrying to give expression to their stable and committed relationship with another would clearly be hindered in the exercise of their freedom of conscience, in violation of Section 8(1) of the Constitution, if they were punished for holding those beliefs or for holding the concomitant belief that the state acts immorally if it fails to make provision to allow them to do so.”

He added: “By failing to give recognition to marriage between same-sex couples, the state perpetuates and aggravates the denigration to which they are subject.

“This impact on same-sex couples who marry or who wish to marry also hinders them in the enjoyment of their freedom of conscience, contrary to section 8(1).”

The full ruling can be found under Related Media

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Published March 15, 2022 at 7:54 am (Updated March 15, 2022 at 7:54 am)

Banning same-sex marriage not unconstitutional – Privy Council

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