The Bermuda government’s legal battle over same-sex marriage is set to begin this week in the UK’s top court, the Privy Council.

The case, which will be heard over two days, beginning on Wednesday, 3 Feb., will determine whether Bermudian legislation, that currently only provides for the legal recognition of marriage between a man and a woman, runs counter to the constitution of the British Overseas Territory.

The outcome of the Bermuda case is relevant for the Cayman Islands because a legal challenge to Cayman’s Marriage Law is scheduled to be heard by the Privy Council on 23 Feb.

Vickie Bodden Bush and Chantelle Day – Photo: Alvaro Serey

That challenge has been filed by Chantelle Day and Vickie Bodden Bush who are hoping to overturn the Court of Appeal’s decision in their case.

The couple is seeking the right to get married in Cayman.

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The five-member Privy Council, which comprises Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Dame Victoria Sharp, has allotted one day for hearing legal arguments for Bodden Bush and Day’s case.

The same panel will be hearing the Bermuda case starting Wednesday.

The Bermudian Parliament passed the Domestic Partnership Act 2018, which provides for same-sex couples to enter into civil unions, and prohibits future same-sex marriages. The act was passed followed the legalisation of same-sex marriages in Bermuda in May 2017, when the Bermuda Supreme Court ruled in favour of Bermudian Winston Godwin and his Canadian fiancé, Greg DeRoche, who sought to legally marry.

In their case, according to The Royal Gazette, the two argued that their rights under the Human Rights Act were breached by the registrar’s refusal to post their marriage banns.

According to the facts on the Bermuda case before the Privy Council, outlined in the case summary, resident Roderick Ferguson and others who were affected by the legislation and a Bermudian church which supports and conducts same-sex marriages, applied to the Supreme Court of Bermuda for a declaration that the provisions of the 2018 Act contravened Bermuda’s constitution.

The Supreme Court of Bermuda ruled in their favour, and determined that Section 53 of the 2018 Act contravened the Bermudian constitution.

Bermuda’s Court of Appeal allowed Bermuda’s attorney general to appeal only in part, ruling that Section 53 of the 2018 Act (which only recognises marriages between a man and a woman) contravened Section 8 of the constitution.

The court also held that Section 53 was void on the grounds that it was enacted for a religious purpose.

The attorney general is now appealing to the Judicial Committee of the Privy Council on constitutional grounds.

Ferguson and respondents in the case are seeking to cross-appeal for a declaration that the 2018 Act contravenes Section 12 of the Bermuda constitution.

That section states that “no law shall make any provision which is discriminatory either of itself or in its effect”.

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