‘You deserve better than this’
Campaigners vowed yesterday to keep fighting for equality despite disappointment after Privy Council judges allowed the Government’s legal challenge against same-sex marriage.
A majority of the panel at the island’s highest appeal court sided with the Attorney-General for Bermuda in the case against Roderick Ferguson and others.
Same-sex marriages have been allowed to take place while the case went through the legal process.
Mr Ferguson said this morning: “To my fellow LGBTQ+ Bermudians, I wish to say to you what I also need to hear at this moment: you matter. Your hurt matters. You deserve better than this.
“The Bermuda Government’s crusade against same-sex marriage was waged to convince you that there’s something shameful about your sexuality.
“Don’t believe that tired old lie.”
He added: “Our supporters often say ‘love wins’. This time it didn’t.
“Still, love cannot win unless we show up for the fight, so thank you to OutBermuda, my fellow plaintiffs, and our legal team, for the courage and passion you’ve shown.
“This loss doesn’t diminish how proud I am of what we’ve done together.
“Finally, I’d like to take this moment to honour all people burdened with the grief of justice delayed and justice denied.
“Our work as a society is not done until everyone’s humanity is recognised both in law and in life.”
Adrian Hartnett-Beasley, the head of LGBTQ rights charity OutBermuda, added: “We always knew our struggle would be long and difficult, yet we always held out hope.
“To be clear, this lawsuit should never have been needed. Human rights are fundamental, and should never be lost or need to be won by lawsuit, legislation or popular vote.”
He said: “Our work will go on. Marriage was just one of many issues facing our LGBTQ+ community here on the island.
“OutBermuda continues to advocate for equality, justice and dignity for all LGBTQ+ Bermudians.
“This decision just highlights that OutBermuda must continue our work.
“We will do so with deep gratitude to all the advocates and benefactors who stood by us, and generous corporate allies like Carnival Cruise Lines who enabled us to plead our case.”
Zakiya Johnson Lord, the charity’s deputy chairwoman, said: “Our struggle is unfinished, but our message resounds with the love that strengthens our families, our community and all of Bermuda.
“There is little doubt that the work we do, including occasionally advocating in the courts, has helped highlight the unfairness and inequalities facing our community.”
Mr Ferguson and OutBermuda were joined as respondents in the case by Maryellen Jackson, Gordon Campbell, Sylvia Hayward Harris and the Parlor Tabernacle of the Vision Church of Bermuda.
Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Dame Victoria Sharp heard in February last year the Government’s argument that same-sex marriage should be illegal — and a counterclaim that a ban is against the Constitution.
Judges found that the Domestic Partnership Act, which included a clause that confined marriage to between a man and a woman, was not passed for religious reasons.
They also said that there was no formal declaration in the Constitution that would nullify any legislative provision enacted for a religious purpose.
Lord Sales highlighted that he would have dismissed the Government’s appeal on the grounds of freedom of conscience.
He said that the respondents’ beliefs in same-sex marriage as an institution that should be recognised by law were not political.
Lord Sales found that failing to recognise same-sex marriages hindered couples “in the enjoyment of their freedom of conscience”, contrary to the Constitution.
A spokesman for OutBermuda said: “The judgment reverses previous decisions reached by Bermudian courts that declared same-sex couples may constitutionally marry in Bermuda, as they have now done since 2017.
“In effect, the Privy Council ruled that the Government could amend its Human Rights Act to take away human rights.
“The Privy Council also made it clear that a future Bermuda government could, at the stroke of a pen, reinstate those human rights.”
He added: “Although the Privy Council turned aside previous marriage court victories, there are uncounted numbers of same-sex couples who have been granted Bermudian marriage licences since 2017 leading up to the passing of the Domestic Partnership Act.
“It is not clear yet how the Government will manage the many marriages that have taken place since the passing of the Act.”
Melvyn Bassett, the chairman of Preserve Marriage and Family, said the organisation was pleased with the ruling.
He explained that the pressure group unsuccessfully challenged an earlier court decision.
Dr Bassett said: “However, with the support of a large percentage of the Bermudian population comprising Christians and non-Christians, Preserve Marriage Bermuda forged ahead and challenged the Government to appeal the same-sex marriage decision.”
The DPA was later enacted and a chain of legal hearings ultimately led to the Privy Council decision today.
Dr Bassett said: “Supporters of Preserve Marriage Bermuda prayed, marched, demonstrated, appealed to the courts of Bermuda and supported the Government’s appeals.
“Today, we congratulate the Bermuda Government on its successful Privy Council appeal led by Jonathan Crow, QC.
“As chair of the Preserve Marriage board, I take this opportunity to thank first of all Almighty God for the decision released today by the Privy Council.
“I want to also thank all those who supported and joined in our efforts, whether through prayer, finances or just your presence at events.
“We thank our lawyer, Delroy Duncan, QC and the members of the Preserve Marriage Bermuda board who remained resolute — many times against fierce opposition.
“Lastly, but not least, we want to thank the Premier and his Cabinet along with the Attorney-General and her team for their part in the successful ruling.”
Social Justice Bermuda highlighted its support for marriage equality.
The campaign group said: “We see marriage as a binding contract between two consenting adults to combine their strengths, talents and commitment with one another.
“There should be no legal basis where anyone on the outside of that agreement should have anything to say or any action they can make that goes against these individuals making a significant decision to bind their personal worlds together.
“There is only one outcome in this ruling that could be considered appropriate.
“That is the freedom for anyone that wishes to marry should be allowed to do so, as long as the person they are to be married to is of legal age and consenting willingly. To that end, we are disappointed by today’s ruling.”
SJB added: “We’d also like to point out that recently, in a progressive move, the Government made it easier for consenting adults to end an unhappy marriage.
“That this same Government would prevent two people from pursuing happiness on their own terms is steeped in hypocrisy.
“Social Justice Bermuda looks forward to the day that all LGBTQIA+ people of Bermuda can legally celebrate and protect their unions in marriage; equally to any other citizen, with all the rights and responsibilities that come with it."
Discrimination because of sexual orientation was outlawed by an amendment to the Human Rights Act in 2013, but Wayne Furbert, then an opposition MP, tried to remove same-sex marriage from the provision.
A Supreme Court judgment in May 2017 found that the Human Rights Act guaranteed same-sex couples the right to marry.
The Domestic Partnership Act got the Governor’s assent in February 2018 but Mr Ferguson launched a civil case against the Attorney-General over a clause in the legislation that defined marriage as between a man and a woman.
Mr Ferguson’s lawsuit was joined with a case brought by OUTBermuda and the other litigants.
The Chief Justice ruled in June 2018 that the section which banned same-sex marriage breached the Bermuda Constitution.
The Government appealed and the case went to the Court of Appeal in November 2018.
The three-judge panel ruled that the section in the DPA was included for a religious purpose, which was barred under Bermuda’s secular Constitution.
The Court of Appeal dismissed the legal challenge and the Government sought permission to apply to the Privy Council in December 2018.
Mark Anderson, a gay rights activist and the man behind Sybil Barrington, the “Queen of Bermuda”, said today that he was concerned about the impact of the decision on the island’s tourism product in relation to same-sex couples who wanted to marry on cruise ships.
He highlighted the efforts of "pivotal voices“ in the gay community.
Mr Anderson said: “We need to continue to lean on each other, more than ever before, for the support, the comfort and the strength to move forward in the right direction."
A statement from the Wesley Methodist Church board said: “Wesley Methodist Church is committed to supporting equal rights and justice for all Bermudians.
“God created us all equally and we are all created in God’s image.
“Just as Jesus radically fought for the marginalised and the oppressed, Wesley Methodist Church will continue to strive for a society, and a church, where all are treated with dignity, equality and respect.
“Just as we supported OutBermuda with this legal case, we will continue to find ways to create equity for those in the LGBTQ+ community who need it most.”
Renée Webb, a former Progressive Labour Party minister, who failed to get discrimination based on sexual orientation outlawed in 2006, said that the outcome of the Privy Council case was “disappointing but not surprising”.
She added: “It’s thoroughly disappointing that in this day and time the Premier would be talking about kindness, I don’t know where kindness fits in for banning the right of Bermudians to marry who they choose.”
• To read the judgment in full, click on the PDF under “Related Media“