LONDON– The United Kingdom-based Privy Council on Thursday reserved judgment after a two-day hearing into an appeal by the Bermuda government against same-sex marriage in the British Overseas Territory.
The case before Bermuda’s highest court of appeal marked the final chapter in a roller-coaster saga that at one stage saw Bermuda become the first country in the world to approve same–sex marriage and then take away the right, but a series of court decisions means that gay couples can currently get married on the island.
The decision of the five-member panel of senior UK judges will be handed down at a later date.
Legal sources say the outcome could also set a precedent for same-sex marriage across the UK’s Crown Dependencies and other Overseas Territories, as well as a host of former territories.
Lord Pannick QC, for supporters of same-sex marriage, said Bermuda was a multicultural country with people of different beliefs and it would be unconstitutional for the government to create a “hierarchy of beliefs” by showing preference.
“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 said.
He was speaking on the final day of the hearing which will decide if a clause in the 2018 Domestic Partnership Act (DPA), introduced by the Progressive Labour Party (PLP) government, that banned same-sex marriage was legal.
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.
“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,” said Pannick.
He added that the ban on same-sex marriages would affect not only same-sex couples, but also people who wanted to celebrate or officiate at ceremonies.
He also said that people whose faith stipulated only opposite-sex marriage would not suffer any harm if same-sex marriage was allowed.
Bermuda’s Supreme Court ruled in May 2017 that gay couples could marry on the island, but six months later the PLP government, which ousted the One Bermuda Alliance (OBA) in the July general election that year, passed the DPA, outlawing same–sex weddings.
A challenge was brought against the act by Bermudian Rod Ferguson, with gay rights group Out Bermuda joining the legal action.
Former Bermuda Chief Justice Ian Kawaley, ruling on their case in 2018, found that the parts of the legislation that restricted marriage to opposite-sex couples were against the Bermuda constitution.
The island’s Court of Appeal later upheld Kawaley’s ruling and allowed same-sex marriages to take place again, but the government refused to give up, pointing to a non-binding 2016 referendum, introduced by the OBA government, in which the majority of voters opposed same-sex marriage in a low turn-out at the polls.
The Attorney-General then took the case to the Privy Council.
The original Supreme Court decision in 2017 came in a judgment by Puisne Judge Charles-Etta Simmons after Bermudian Winston Godwin and Greg DeRoche, his Canadian partner, litigated against the Registrar-General for refusing to post their wedding banns.
Despite their landmark victory, Godwin and DeRoche chose to marry in Canada.
Bermudian lawyer Julia Saltus and her Ghanaian-American partner Judith Aidoo were the first gay couple to wed in Bermuda.
A total of 30 gay couples have married in Bermuda since the battle started in 2017. One couple divorced in 2019.