Forthcoming JCPC challenge to same-sex marriage prohibition in Bermuda

In a guest post, Elijah Granet, a Graduate Diploma in Law candidate at City, University of London, looks at an interesting case to be argued in the Judicial Committee of the Privy Council.

Does a law prohibiting same-sex marriage violate the right to manifest one’s religion or belief? This novel argument will soon be tested in the Judicial Committee of the Privy Council (JCPC), where the Government of Bermuda will be appealing against successive decisions by the island’s first instance and appellate courts to strike down legislation which prohibited same-sex marriage.

The background

In 2017, same-sex marriage in Bermuda became legal as the result of a Supreme Court (NB: the court of first instance) ruling in Godwin and DeRoche v Registrar-General and others [2017] SC (Bda) Civ, on the basis of the island territory’s Human Rights Act’s prohibition on discrimination on grounds of sexual orientation. After a set of elections in the same year, a new government, making good on a manifesto commitment, passed the Domestic Partnerships Act 2018 (DPA), which ended same-sex marriage in the territory. That prompted statements of disappointment from the British Government, which nonetheless declined to direct the Governor to withhold assent. In an attempt to circumvent the Godwin and DeRoche ruling, the Act includes a “notwithstanding” clause, specifically exempting the legislation from the Human Rights Act 1981.

However, unlike in the UK, parliamentary sovereignty in Bermuda is limited by the Bermuda Constitution Order 1968. In 2018, several applicants, including a pro-same-sex marriage church and religious ministers, sought judicial review in the Supreme Court. In Ferguson et al v Attorney General [2018] SC (Bda) 45 Civ, they successfully argued, inter alia, that the DPA prevented them from manifesting their religious and conscientious views and to celebrate and conduct same-sex marriages, in violation of section 8 of the Bermuda Constitution. Section 8, analogously to the ECHR and other rights documents, grants the right to “both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance”. Crucially, unlike the ECHR, there is no version of Article 12 (right to marry) in the Bermuda Constitution, hence opening marriage up to rights-based litigation (which it is not at Strasbourg).

In the Supreme Court, Kawaley CJ applied Commonwealth precedent – especially Commodore Royal Bahamas Defence Force & Ors v Laramore (Bahamas) [2017] UKPC 13 and R v Big M Drug Mart Ltd [1985] 1 SCR 295 – to find that the applicants’ freedom to manifest their religion and belief were substantially interfered with by the DPA. As the Government had not tried to offer any justification for this interference, nor had it attempted to dispute the sincerity of the applicants’ views, the DPA could not stand. He also found that those beliefs qualified as a “creed” under Section 12 of the Constitution, which prohibits discrimination on that ground.

The Government then appealed to the Court of Appeal for Bermuda (The Attorney General v Roderick Ferguson et al [2018] CA (Bda) 32 Civ). For the Government, James Guthrie QC argued,(inter alia, that a belief in same-sex marriage fell outside the ambit of Section 8 protected beliefs and further that celebrating same-sex marriages fell outside the ambit of manifestation. Baker P, writing for the court, cited Lord Nicholls’s judgment in R (Williamson) v Secretary of State for Education and Employment [2005] 2AC 246, which found that any belief which passed a low threshold of seriousness and importance qualified for protection under Article 9 of the ECHR. In Williamson, a belief in corporal punishment of children was held to meet that threshold; Baker P similarly found that a belief in same-sex marriage qualified. However, the Court quashed Kawaley CJ’s finding that belief in same-sex marriage qualified as a “creed”, because the belief in isolation failed to be comprehensive enough to meet the ordinary definition of the word. This small victory for the Government was outweighed by the Court’s additional finding that the DPA had been passed for a religious purpose, making it unconstitutional. Thus, the judgment left the law still doubly unconstitutional, albeit with a changed second reason.

The Government, unfazed by the high cost of continuing the fight (estimated by pro-gay rights campaigners to be up to US$3 million), subsequently decided to appeal the case to the JCPC, receiving permission to do so at the end of May. (As the JCPC term calendars for 2019-2020 have yet to be released, there is no date yet set for the hearing) The respondents in the appeal have already announced that they are briefing Lord Pannick QC of Blackstone Chambers. (Incidentally, Lord Pannick wrote Times column in 2016 eulogising Bermuda’s Bar and legal system)

Comment

From the strength of the findings in the Bermudian courts, where the Government’s counsel were unable to find much of a convincing argument for the DPA, I sense that the respondents would have had a strong chance even without an advocate as skilled as Lord Pannick on their side. Even if counsel for the Bermudian Government are able to argue convincingly that the DPA was not passed for religious purposes, they will likely, as they did in the lower courts, fail to provide any justification for any putative interference with protected beliefs. Their only available argument will be that the belief in same-sex marriage does not qualify for protection – but if, like the Court of Appeal, the JCPC applies the Williamson test, it is unthinkable that a belief in same-sex marriage will not qualify.

If the JCPC does find that belief in same-sex marriage is protected, this will have important implications for other jurisdictions which still have appeals to the Privy Council but lack same-sex marriage. It will also provide persuasive, though not binding, precedent for future cases on the legal recognition of manifestations of religion or belief in the UK. While recent legislation for Northern Ireland, as well as Article 12 ECHR, render future litigation on same-sex marriage unlikely, it is easy to see how similar arguments could be advanced in cases, for example, on benefits for a couple who have a conscientious belief against marriage or civil partnership.

Finally, a JCPC decision on the subject would also have a powerful normative effect. The discourse on religious freedom tends to be used against LGBT+ rights, rather than for their advancement. This case could shift the balance, with marriage equality becoming viewed as itself an issue of religious freedom.

Elijah Z Granet

Cite this article as: Elijah Z Granet, “Forthcoming JCPC challenge to same-sex marriage prohibition in Bermuda” in Law & Religion UK, 30 July 2019, https://www.lawandreligionuk.com/2019/07/30/forthcoming-jcpc-challenge-to-same-sex-marriage-prohibition-in-bermuda/.

3 thoughts on “Forthcoming JCPC challenge to same-sex marriage prohibition in Bermuda

  1. Very useful comment on a case I will be keeping an eye open for as it combines law and religion AND a small jurisdiction! A few quick comments:

    Sexual orientation rights have been given a religious rights frame in the past, for instance, DAJ Richards, “Sexual Preferences as a Suspect (Religious) Classification” (1994) 55 Ohio State Law Journal 491. Religious commitments to equal status for different sexual orientations have also been important in the development of equal marriage in, for instance, the UK.

    There is a distinction between prohibiting a religious ceremony, and not giving that religious ceremony legal effect. I’ve argued for the complete severance of religious and state marriage ceremonies – “Let’s talk about a divorce: Religious and legal wedding”, in Miles et al (eds), Marriage Rites and Rights (Hart, 2015). I think arguing that every religious ceremony must be given legal effect by the state is not tenable – indeed, the idea that religious ceremonies can have no legal effect is important in Tothpal and Szabo. So the question becomes whether denying legal effect to a religious ceremony in a particular case is a denial of religious rights; a question which can include non-discrimination elements.

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