Bermuda Takes Appeal Against Same Sex Marriage To Privy Council

LONDON, England, Thurs. Feb. 4, 2021: The Privy Council in London yesterday began a two-day hearing into the Bermuda government’s appeal against same-sex marriage in the British Overseas Territory.

It is 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.

Two of Britain’s top barristers are battling it out in front of the Privy Council, Bermuda’s highest court of appeal.

The Bermuda government has hired Queen’s Counsel Jonathan Crow to make its case that gay couples should not be allowed to marry. OutBermuda, a gay rights charity, and four other litigants have retained David Pannick QC to argue the opposite case.

Bermuda’s Supreme Court ruled in May 2017 that gay couples could marry on the island, but six months later the Progressive Labour Party government, which ousted the One Bermuda Alliance in the July general election that year,  passed the Domestic Partnership Act, outlawing same-sex weddings.

A challenge was brought against the act by Bermudian Rod Ferguson, with OutBermuda 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 Justice 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 One Bermuda Alliance government, in which the majority of voters opposed same-sex marriage in a low turn-out at the polls.

The Privy Council decision 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.

Adrian Hartnett-Beasley, director of OutBermuda, said earlier the group had “long known that our pursuit of marriage equality would be a marathon, not a sprint”.

He said the Privy Council hearing marked the group’s “final push to preserve our equal rights under the law for all Bermudians and all families”.

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.