Bermuda: Judge rules against law banning gay marriage

Lawyer Mark Pettingill and his client Roderick Ferguson pose outside a court room at the close of their legal hearing on homosexual marriage rights in Bermuda on May 24, 2018. Thomson Reuters Foundation / Emma Farge

Bermuda’s top judge on Wednesday ruled against a new law banning same-sex marriage in the British overseas territory, a decision the government could now appeal, lawyers and witnesses said.

Bermuda’s parliament and Senate passed an act banning same-sex marriages last year following pressure from a religious lobby group, in a rare reversal of a Western trend towards equal marriage rights.

The bill, which instead allows gay people to enter into domestic partnerships, was given assent by the wealthy north Atlantic island’s British governor in February, and came into effect this month.

Former attorney general, Mark Pettingill, challenged the law in February, on behalf of a gay Bermudian, Roderick Ferguson, and several other applicants later joined the case.

“Right-thinking people everywhere will rejoice that the Bermuda Court, by what in our view is an unappealable ruling from the Chief Justice, got this right to love and happiness,” Pettingill told the Thomson Reuters Foundation.

Chief Justice, Ian Kawaley’s verdict was read in court in the capital, Hamilton, on Wednesday, but has not yet been released to journalists.

A spokeswoman for the government, which was the respondent in the case, did not immediately respond to a request for comment.

Lawyers for the government have sought to delay the implementation of the Supreme Court’s order, a sign they are likely to appeal the decision.

During the proceedings, lawyer, Melvin Douglas, argued that the government was offering gay couples new assurances under the Domestic Partnership Act “while protecting the opinion of the majority that the definition of marriage between a man and a woman should not be changed”.

Some supporters of the legal motion had not initially been confident of success since there is no clause in Bermuda’s constitution that explicitly forbids discrimination on the grounds of sexual orientation.

However, it does protect freedom of conscience, expression, assembly and association. Lawyers for the applicants argued in lengthy and sometimes emotive addresses that the gay marriage ban had violated these and other rights.

Pettingill said he did not believe there was a precedent in Bermuda or other Commonwealth jurisdictions for the judiciary to strike down an existing law.

Ferguson, the gay Bermudian cabaret singer represented by Pettingill, said it took him years to recover from the “internalised homophobia” of living on the island, where some churches are openly opposed to homosexuality.

“Even though we have won, it may take five years or so for people to come to peace with it and maybe some never will,” he said. “But if the law is on our side that helps.”

-Emma Farge,Thomson Reuters Foundation

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