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Bermuda: Government seeks permission to take same-sex marriage fight to Privy Council

By CMC

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(CMC) – Government has launched a last-ditch legal attempt to restore a ban on same-sex marriage in Bermuda, even though it has already lost three times in court on the issue.

Notice has been given to the Court of Appeal to ask permission to take the case to London’s Privy Council.

The Progressive Labour Party (PLP) government said the matter was important to the population and involved complex legal points that should be heard by the highest court of appeal for Bermuda.

Deputy Premier and Minister of Home Affairs Walter Roban said “constitutional issues are important issues and this government wants to get it right.”

The decision to try to take the case to the Privy Council came after a ruling by the Court of Appeal made same-sex marriage legal again last month.

The application was made just before a 21-day deadline was reached.

The Court of Appeal last month dismissed the government’s claim that former Chief Justice Ian Kawaley was wrong to strike down parts of the Domestic Partnership Act (DPA), which was passed to replace same-sex marriage with a civil partnership arrangement.

A packed courtroom erupted in cheers as Sir Scott Baker, president of the Court of Appeal, announced the decision. The Court of Appeal also has the role of deciding if permission is given for a plaintiff to go to the Privy Council.

The Privy Council then considers if an appeal has merit and if it will hear the case or not.

“The government’s position is that the issues involved in these matters are of general public importance to the people of Bermuda and involve complex and difficult issues of law which are appropriate for consideration by the Privy Council,” a government spokeswoman said.

The DPA was passed in December 2017. It recognised same-sex marriages that had already happened, but banned anymore and offered domestic partnerships instead.

Rod Ferguson launched a legal action in February against the act, particularly the clause that defined marriage as between a man and a woman. He was later joined in the action by Maryellen Jackson and gay rights charity OutBermuda.

Justice Kawaley ruled the DPA was against the Bermuda constitution in May and the government appealed the decision. However, the Court of Appeal dismissed the challenge and reinstated same-sex marriage.

Ferguson’s lawyer Mark Pettingill, a former attorney general, hoped the government would think about its course of action.

“Hopefully, this is a position to review carefully their prospects of a successful appeal to the Privy Council and the consideration of the costs and the very real likelihood that they simply will not succeed.

“I hope in this situation that common sense prevails as opposed to political motivation and that good law prevails as opposed to pushing a manifesto promise further than it has to go,” he said, adding “we are where we are and I think we need to move on.

“We can’t flip-flop any further. As a jurisdiction, we will be a laughing stock, in my eyes, of the right-thinking international community, which includes all of our major trading partners, all of our major sources of tourism, all of the places that we, as Bermudians, like to visit.

“When we speak about that group of other countries, we’re talking about our closest friends and neighbours,” Pettingill, said.

Opposition Leader Craig Cannonier said the government’s decision to spend potentially hundreds of thousands of dollars appealing the same sex ruling “is a kick in the teeth to Mr and Mrs Bermuda, whose shoulders are burdened by the weight of new taxes.”

Veteran entertainer Tony Brannon branded government’s decision to take its fight to the Privy Council as a “cynical, bigoted, hypocritical attack on the rights and freedoms of others”.

Bermuda became the only country in the world to have allowed same-sex marriage and then banned it.

A non-binding referendum in 2016, put forward by the then ruling OBA, in which there was less than a 50 per cent turnout, resulted in voters rejecting same-sex marriage and same-sex civil unions by a wide margin.

Puisne Judge Charles-Etta Simmons found in May 2017 that a restriction of marriage to a man and a woman was against the island’s Human Rights Act.

That ruling made same-sex marriage possible and the then ruling One Bermuda Alliance (OBA) administration decided not to appeal.

But the PLP government, which toppled the OBA in a landslide general election victory in July last year, replaced same-sex marriage with domestic partnerships in December 2017 through the DPA.

Last year’s judgment by Mrs Justice Simmons came 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, but there were at least 10 same-sex marriages on the island plus four at sea on Bermuda-flagged ships.

The firestorm of criticism the ban on same-sex marriage sparked here and abroad led to Ferguson’s decision to launch his crowdsourced civil case against the Attorney-General on the grounds that his constitutional rights had been breached.

Bermudian lawyer Julia Saltus and her Ghanaian-American partner Judith Aidoo were the first gay couple to wed here.

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