Bermuda courts reverse same-sex marriage ban

Ruling could impact Cayman case

Bermuda’s courts have legalized same-sex marriage for the second time in a landmark ruling that could impact the battle for marriage equality in the Cayman Islands.

Citing the island’s religious heritage and bolstered by a referendum that came out against same-sex marriage, the Bermuda government has fought a long legal battle over the issue.

The country’s Court of Appeal ruled Friday that an attempt to introduce “civil partnership” legislation as an alternative to marriage for gay couples was not sufficient to meet rights guaranteed under Bermuda’s constitution. It also ruled that passing legislation on religious grounds was outlawed by the constitution, which guarantees a right to freedom of conscience.

The Bermuda government has now exhausted its legal options within the territory to oppose same-sex marriage. It has 21 days from Friday’s ruling to decide whether to challenge the ruling in the Privy Council in London.

Campaigners in the Cayman Islands see the decision as a victory that could influence how the matter is dealt with here. Cayman Islands-based researcher and campaigner Leonardo Raznovich said the Bermuda decision removed the possibility that religion could be used as a justification for a same-sex marriage ban. He said it was the “final blow” in an already “fatally wounded” case and urged Cayman’s government to “stop this circus” and allow same-sex couples to marry.

While not binding on Cayman, he said, the Bermuda judgment was a “highly persuasive” precedent from a fellow overseas territory.

In a written analysis of the decision, Mr. Raznovich told the Cayman Compass that the Bermuda Court of Appeal confirmed two obvious principles of law for countries with secular constitutions, like Cayman and Bermuda.

“These are that the legislature’s freedom to legislate is constrained in that it must not pass legislation that is inconsistent with the fundamental rights and freedoms of the Constitution. Further, nor can the legislature use religion to justify matters of general legislation.

“The Court of Appeal then decided unanimously that the revocation of same-sex marriage was decided by the Bermudian Legislature on religious grounds and, hence, it was for this reason unconstitutional.”

He said the court also confirmed that a deeply held belief in marriage was protected under the section of the Bermuda constitution which guarantees freedom of conscience and belief. This aspect was important, he said, because it established that belief in marriage – whether it relates to opposite or same-sex marriage – was a protected right, regardless of whether it was specifically stated in the constitution.

Rod Attride-Stirling, one of the lawyers in the Bermuda case, made the same point in media interviews following the case.

He said the ruling would set a “massive precedent” for other jurisdictions where gay marriage is not yet legal. “This case is revolutionary because every country that has a freedom of conscience provision, which is most now, has a fully new avenue of approach,” he told reporters outside the courtroom.

The Bermuda courts first ruled in May 2017 that the country’s Human Rights Act, amended in 2013 to prohibit discrimination on the grounds of sexual orientation, meant that same-sex marriage was legal in Bermuda. In July of the same year, a new government was elected and immediately repealed the right of same-sex couples to marry, instead introducing civil partnerships as an alternative. The Supreme Court ruled in June that this was unlawful. That decision was upheld by the Court of Appeal Friday.

The Cayman Islands, which has a slightly different legislative framework, is about to get its own test case on the issue. Chantelle Day, a Caymanian lawyer, and her partner Vickie Bodden Bush have been granted leave to apply for a judicial review of the Cayman Islands government’s decision to refuse their application to marry. The case is scheduled to be heard early next year.