In a guest post, Elijah Z Granet analyses the Judicial Committee of the Privy Council’s judgment in AG for Bermuda v Ferguson & Ors.

Introduction

In AG for Bermuda v Ferguson & Ors [2022] UKPC 5, a majority of the Judicial Committee of the Privy Council held (Lord Sales dissenting) allowed the Bermudian Government’s appeal against two earlier Bermuda decisions (previously covered here on Law & Religion UK) holding that a law defining marriage as between a man and a woman was unconstitutional.

Background

Bermuda is a British Overseas Territory, whose laws exist under the Constitution of Bermuda, enacted through UK secondary legislation. The bicameral legislature has the standard colonial plenary power to make laws for ‘peace, order, and good government’ (POGG) of the territory, within the scope of the power granted by the Constitution. For these purposes, the most relevant provisions are s 8(1), which provides broad freedom of conscience, thought, and religion (including the manifestation of religion) and s 12, which provides limited protection against discrimination on certain bases (here, it is only relevant that ‘creed’ is a protected characteristic, but sexual orientation is not). The Constitution has no equivalent provision to art 12 ECHR (right of men and women to marry). While the UK has responsibility in international law to ensure the application of the European Convention on Human Rights (ECHR) to Bermuda and Bermudians may apply to the Strasbourg Court if they feel the UK has failed in this regard, the ECHR itself is not part of domestic Bermudian law and cannot be relied on by Bermudian courts except as persuasive authority on rights. Bermuda does have a Human Rights Act (HRA) which enshrines additional rights in law (viz, prohibiting discrimination on the basis of sexual orientation) but because the HRA is ordinary legislation, the Legislature may enact legislation notwithstanding its provisions.

The case at issue arises from a 2017 decision, Godwin & Deroche v Registrar General [2017] SC (Bda) 36 Civ, in which Charles-Etta Simmons PJ in the Supreme Court (nb: the first-instance court) held that under the HRA, refusing to register same-sex marriages was a prohibited exercise of discrimination on the grounds of sexual orientation. The ruling effectively legalised same-sex marriage in Bermuda, prompting political disquiet culminating in the Progressive Labour Party introducing the Domestic Partnership Act 2018 (DPA), which ended the provision of same-sex marriage (though couples already married retained their status), but allowed same-sex couples to enter into domestic partnerships with similar rights to marriage.

The legal challenge to this bill succeeded in both the Supreme Court and the Court of Appeal, but on different grounds. At first instance, Kawaley CJ found the removal of the right to same-sex marriage was an unjustified interference with the freedom of conscience of gay Bermudians who believed in the institution of marriage. In the Court of Appeal, Sir Scott Baker P found, citing Canadian precedent—especially R v Big M Drug Mart Ltd [1985] 1 SCR 295 (Big M)—that the DPA was impermissibly based on a religious purpose and was therefore unconstitutional under s 8. The Attorney General then appealed to the Privy Council to try to save the DPA (there was also a cross-appeal from the respondents, though it had little importance in the subsequent decision).

The majority decision

Lord Hodge and Lady Arden’s majority decision started with the observation that nothing in the Constitution prohibited religiously motivated legislation, [41], [45] and that, absent explicit limitation, the POGG clause must be interpreted as giving the Legislature the power to do anything not prohibited to it. [43] The famed doctrine of Viscount Sankey in Edward v AG for Canada [1939] AC 124, 136 that constitutions are ‘living trees’ was not of particular application, since absent explicit language forbidding religiously motivated legislation there was no provision which could grow and develop into such a prohibition to abrogate the POGG power. [46]

Big M was of little help because Dickson J’s decision in that case relied in part on the Canadian Charter of Rights and Freedoms, s 27 (which provides that the rights under the Charter must be interpreted in light of the multicultural heritage of Canada), which had no Bermudian analogues. [50] The favourable treatment of Big M by the PC in Royal Bahamas Defence Force v Laramore [2017] UKPC 13 did not change this analysis. [51–2] Similarly, the Canadian case of Mouvement Laïque Québecois v Saguenay [2015] 2 SCR 3, which took a strict view of the requirement of State neutrality in matters of religion, was inapplicable to the development of Bermudian society. [54] The American and South African precedents legalising same-sex marriage (Obergefell v Hodges and Minister for Home Affairs v Fourie (2006) 1 SA 524 respectively) were also inapplicable given that the constitutional provisions relied upon therein had no Bermudian analogue. [93]

The best guide for interpreting the Constitution was rather the ECHR, because there was no reason to believe that s 8 of the Constitution was meant to go farther than art 9 ECHR. [19] In this context, the Strasbourg Court’s guarded jurisprudence on the duty of neutrality inherent in art 9 did not bar religiously purposed legislation. [52] Moreover, the DPA was—in the aftermath of controversial court decisions, and a referendum in 2016 against same-sex marriage which (though on low turnout) the majority found representative of Bermudian public opinion [26]—found to be a delicate political compromise. The Courts should thus show deference to the careful compromise to the divisive debate in same-sex marriage (which the majority did not find to be religiously motivated), and should instead respect the integrity of Parliamentary processes to resolve such issues democratically (applying R (SC) v Secretary of State for Work and Pensions [2022] AC 223 (SC), para 167 et seq, per Lord Reed). [57–59]

As for the respondents’ (inter alia religious) beliefs in same-sex marriage, there was only an obligation to respect those beliefs and allow their propagation; non-recognition of same-sex marriage did not interfere with this [64] While the beliefs in question (and manifestations thereof) were certainly protected by s 8, there was no positive duty on Bermuda to bring about legal recognition of this belief (and no hindrance to performing ceremonies of marriage in churches minded to do so). [75–77] There were many Bermudians who had equally protected religious beliefs against such recognition, and indeed, the same controversy between sincerely held beliefs could be seen across many contentious issues in society (eg, abortion). [78] The legal recognition of same-sex marriage might be desired out of religious belief by some of the respondents, but, applying Pretty v UK (2003) 35 EHRR 1, para 82, not all things stemming from protected beliefs automatically earned protection under s 8. To hold otherwise would be to admit absurd results, such as bizarre marriage ceremonies (referencing the ECmHR decision X v Germany App No 6167/73) or adults marrying underage minors (referencing the ECmHR decision Khan v UK App No 11579/85), made legal by religion. [84–5] Although the majority acknowledged that the constitution lacked an equivalent to art 12 ECHR, it did not accept that this altered the question of the power of the state to ban same-sex marriage. [90]

Lord Sales’s dissent

Lord Sales began by noting the importance of the broad protections of belief and manifestation in s 8, and further that marriage was widely regarded as an ethical and/or religious institution through which people of opposite or the same sex(es) gave expression to these protected fundamental beliefs.[101–5], [122] It thus followed that absent any provision otherwise, denying same-sex couples the opportunity to manifest their belief through marriage, was an unacceptable hindrance. [102] Furthermore, the freedom of religion necessitated a duty of neutrality by the state, because the endorsement of one set of beliefs was to marginalise and exclude those who held other beliefs (applying the American case of Lynch v Donnelly (1984) 465 US 668, 688 per O’Connor J). [106] This need for neutrality was especially important in light of the history of state-backed persecution of gay people. [107]

It was further impossible to separate out the beliefs about marriage into internal aspects and a desire to change the law, as the majority had tried to do, because freedom of conscience did not entail merely the right to hold a belief without state oppression, but also the right to live a life in accordance with one’s own moral beliefs. Thus, the idea that there was a non-protected political belief stemming from these moral beliefs belied the importance of living by one’s own religious and ethical convictions. [117–8] There was no comparison with the position of those who believed against same-sex marriage, because such people already could fully manifest their beliefs through marriage, and thus enjoyed state respect and protection. The s 8 protections enabled each to live a life according, within limits, the dictates of their conscience, not to dictate the lives of others according to their conscience. [120] The duty of neutrality did not allow the Legislature to forbid certain adults from expressing their beliefs fully through marriage. [122] Furthermore, those individuals or groups who wished to manifest their belief in the dignity and equality of same-sex marriage, and to propagate it amongst the population, were hampered by the fact that the law prevented them from demonstrating the fulfilment and sincerity of their belief in lifelong mutual commitment. [181]

Furthermore, the Constitution is an instrument to protect individual rights through its text, which should be interpreted (following Edwards) as a living tree growing and developing with society [136] The fundamental purpose of the rights provisions in the Constitution was to protect individual rights from the otherwise unconstrained POGG power of the Legislature; as part of the rule of law, individual rights removed certain matters from the ‘vicissitudes of political controversy (quoting the American case of West Virginia State Board of Education v Barnette (1943) 319 US 624, 638 per Jackson J). These rights expanded over time so to continually ensure that minorities are not the victims of the dark side of democracy. [140–144] Bermuda is (and here contrary to the majority) a state fully within the family of liberal democracies, and its Constitution and institutions were just as much evolving in their treatment of gay people as the UK or any country. [145]

The absence of any lex specialis provision like art 12 ECHR specifying that the right to marriage is only between women and men was highly indicative of the application of Strasbourg case law, because the ECtHR has held that gay couples are entitled to full legal recognition, but not marriage because of the derogation implicit in art 12 (citing, inter alia, Oliari v Italy App Nos. 18766/11 & 36030/11). [152], [158] The decisions of other courts deciding in the absence of a lex specialis appeared to be uniformly for marriage, because of its role in individual dignity and autonomy (citing especially Kennedy J in Obergefell and Sachs J in Fourie, both supra). Where the majority disregarded these cases given the lack of immediately analogous provisions, Lord Sales instead found that the values behind the goals of the Bermudian, American, and South African constitutions were all one and the same in their aim to safeguard individual rights under the law. [164]

This common approach made Laramore and thus Big M and Mouvement Laïque Québécois again persuasive, as a common view of freedom of religion underpinned both art 9 ECHR, s 2(a) of the Canadian Charter, and s 8 of the Constitution would inevitably lead to a strict requirement of neutrality. Any sign of partiality or favouring one set of religious beliefs over others would be contrary to the requirement that all forms of belief were permitted insofar as the rights of others were not effected (citing here the very well-known dictum of Dickson J in Big M at p 336). [189] Thus, it was irrelevant that s 8 did not require, in its text, neutrality, because one could not have constitutional freedom of religion without the laws of the state featuring neutrality (citing a dictum from Kennedy J in Masterpiece Cakeshop (2018) 138 S Ct 1719, 1731 that the Free Exercise Clause was itself sufficient to create an obligation of neutrality). [191] The right of gay individuals to manifest their belief in the sacred nature of marriage was violated in a way that the same aright of heterosexual individuals was not; this was unacceptable, since s 8 could not grant freedom of conscience, as expansively envisioned by Dickson J, if the holders of certain beliefs were, in effect, made to be ‘second class or inferior citizens’. [194] Denying gay couples the right to manifest their beliefs through marriage was no more acceptable than denying, say, Roman Catholics the right to manifest their beliefs through marriage. [197]

This wide reading of s 8 was justified by the fact that the freedom of conscience was the nexus not merely for the rights in art 9 ECHR, but also as the locus of individual autonomy and identity, which were, in essence, the rights to family life in art 8 ECHR. As the drafters of the Constitution had omitted any derogations along the lines of art 12, there was no justification for reading in any abrogation of the most profound of rights in a society built around the principle of individual liberty. [201]

Even if the Bermudian had tried to show objective justification for the interference with the respondents’ s 8 rights, the inherent rights at issue meant that ‘there is no sound basis on which the revocation [of same-sex marriage] could be justified.’ [205] A Constitution exists to allow for the expression of a pluralist, tolerant, and open-minded society, and in such a society, granting rights to gay couples to marry benefited such couples’ rights, and harmed the rights of none (citing Sachs J in Fourie, para 98). [206]

Commentary

‘[W]e must never forget that it is a Constitution we are expounding.’ So said Marshall CJ in McCulloch v Maryland (1819) 17 US (4 Wheat) 316, 407, in a succinct reminder that the duties of a Constitutional Court are fundamentally different than those of an ordinary court. A constitution is not merely a statute, but rather a repository of the most basic values of a society. Although no British judge has ever had to sit in a domestic constitutional court, there is a long and respected history of the Privy Council taking constitutions and constitutional jurisprudence seriously, perhaps most famously in Edwards. Yet, in this frustrating case, the majority judgment seemed determined to be as deferent to the Legislature as the UK Supreme Court would be to Parliament.

At every stage, the majority judgment tried to dodge constitutional reasoning to reach an outcome consistent with the Legislature and (allegedly) the people, at the constitution’s expense. At [7], the majority tries to claim that because Bermuda’s Constitution is in the annex of UK legislation, it is not like that of a ‘fully independent state’; this is a strange assertion given that, inter alia, Canada and Australia are both fully independent states whose constitutions are contained in annexes to UK legislation. Further, why should it be relevant given that the Privy Council is here sitting as a Bermudian court, judging Bermudian legislation, made pursuant to the Constitution, which for these purposes is, regardless, the sole highest law in Bermuda? Lord Sales, on the other hand, gives Bermuda (a self-governing territory since 1620) the respect it deserves by describing it as a ‘state within [the liberal democratic] family of nations’ at [145]. After paying the merest lip-service to Edwards, the majority proceeds to quite spectacularly forget that it is a Constitution they are expounding when, at [19], they reject tout court the idea that s 8 could be wider than art 9 in scope (which Lord Sales indeed averred) on the basis that they ‘cannot discern any legislative intention that were so’. This astonishing passage raises, with respect, the question as to how their Lord-and-Ladyship can claim to be applying Edwards, given that the entire point of Viscount Sankey’s decision in Edwards was that although the drafters of the (as was) British North America Act 1867 did not envision that women would be qualified to serve in the Canadian Senate, the Constitution, as a living tree, could grow beyond the intention of the drafters. That is why constitutional jurisprudence is fundamentally different to statutory interpretation. A constitution of a self-governing, democratic polity surely deserves more consideration than to be pigeonholed as an exact analogy of the ECHR. There is no sensible reason why a constitutional court could not find that the entrenched rights in the Constitution gave more extensive protection than under the ECHR (and indeed, the Bermudian Supreme Court and Court of Appeal did just that in this case).

The ECHR comparison, while useful as a starting point, necessarily founders when even the most cursory read of the Constitution reveals the absence of an equivalent to art 12. Given that, as Lord Sales persuasively argues, art 12 is the sole reason the Strasbourg Court has not found (as other rights courts around the world have) a right to same-sex marriage, the absence of that provision should be fully persuasive. Yet, the majority declines to follow this route, saying it does not want to infer much from the absence of this provision, even as it claims to infer a great deal from the absence of other features in the Constitution (like an explicit provision on religious neutrality).

Nor does the majority, like a constitutional expounder ought to, give full consideration to the comparative case law. They decline to examine (as Lord Sales does) the eloquence of Dickson J in Big M or of Sachs J in Fourie, on the grounds that the constitutional provisions at issue are somehow, too distinct for comparison. This view—which would end the career of many a comparative scholar if true!—is absurd on its face. The reason these judgments are so frequently cited (including by the PC in Laramore) is not because every jurisdiction around the Commonwealth has an exact copy of the Canadian Charter or South African Constitution in their jurisdiction, but rather because the sundry constitutions of the liberal and democratic world all have as their aim to protect, by different means and different words, the essence of basic rights which are universal and self-evident. Lord Sales, clearly, understood this basic fact (as, indeed, have a great many previous Privy Council judgments for well over a century), and cited passages where, with great clarity, other constitutional judges have illuminated these rights. Instead, the Privy Council (of all institutions) was eager to disregard common law constitutional jurisprudence in favour of relying on Strasbourg case law despite the basic fundamental difference (the absence of art 12) between the Convention and the Constitution. Put simply, the majority appears, with respect, to have forgotten that it was a constitution they were expounding.

Instead, the result is a meagre and unworthy appraisal of the role of conscience and religious belief. Rather than consider the fundamental place that legal recognition has in respecting the autonomy of individuals to organise their lives in accordance with their beliefs (Oliari, if we want to stick with Strasbourg), the majority instead simply regards the expression of a gay person’s belief in the sanctity of marriage as walking around telling people about that belief. This is a narrow and unfortunate view of the role of individual conscience which ignores the brought terms of s8(1), and the persuasive view of freedom of religion expounded on in that well-known dictum of Dickson J in Big M. If the majority took the Constitution seriously, then their reasoning would surely have led them to the same place that Kennedy J, Sachs J, and Lord Sales arrived: the right of people to manifest their religious and ethical beliefs through marriage is fundamental, and the State cannot deny to gay couples the freedom it gives to heterosexual couples.

The inconsistency and legal meandering which pervade the majority judgment was done, it seems, in consideration of matters which, with respect, seem like they ought to be irrelevant to a constitutional court. The majority stresses that same-sex marriage is a divisive issue in Bermuda, and assert (for no apparent legal reason) say (at [26]) that an invalid referendum against same-sex marriage is ‘a useful indication’ of the public’s view. The majority then exalts the DPA as a ‘political compromise’ ([42]), to which the courts should show deference, and then cites the plenary POGG power (which again, really is irrelevant given that the power only exists insofar as the Constitution does not prohibit it). This Waldronian ode to the wisdom of legislatures then proceeds to cite British case law on deferring to the decisions of Parliament and the careful democratic compromises reached therein. I am at a loss to see why the decision of a court in a country with a sovereign parliament and no entrenched constitution—even a court with a composition identical to that of the PC—could ever be relevant to expounding a constitution. By citing Lord Reed PSC’s decision in SC, the majority appeared to be, frankly, amnesiac as to the fact it was a constitution they were expounding. When expounding rights, a constitutional court is not interested in popularity contests or, frankly, even in the delicacies of political compromise (one example is Gascon J’s decision in Mouvement Laïque). The basic purpose of entrenched rights is, as Lord Sales rightly noted, to remove certain matters forever from democratic vicissitudes. If a right is protected by the constitution, it should not matter that the abrogation of that right was a delicate compromise, or that the creation of that right will be deeply unpopular. The entire purpose of having entrenched rights is precisely to reverse the situation in SC, by removing some matters from the legislature’s competence.

Lord Sales’s dissent, on the other hand, was a brilliant piece of constitutional adjudication that viewed entrenched rights with the seriousness they deserve. Long dissents are (mostly in America) occasionally described as ‘withering’ or ‘caustic’, but Lord Sales instead (and more effectively) employed a gentle and clear method to reason through the issue at hand. His Lordship’s wide and generous construction of the religious rights of everyone (it is notable that to this end, Lord Sales cites Masterpiece Cakeshop, which is a case upholding the rights of those opposed to same-sex marriage) was the sort of expounding that the Constitution deserved. This combined elegantly with the incontrovertible fact that, even if we rank legislative intention as highly as the majority appeared to, the drafters of the Constitution did not make marriage a lex specialis. The conclusion then, brought on by the text of the constitution and the basic principles that have echoed throughout the common law world, is that the freedom to manifest one’s belief requires the state, as neutral arbiter, to allow within certain limits the expression of such beliefs.

Such individual autonomy is what distinguishes States with the rule of law and freedom of conscience from those that do not. It is the basic principle behind the constitutions of every State with such a constitution. Bermuda is a self-governing polity with an entrenched constitution, and part of, as Lord Sales said, the family of free nations. Part of this membership is that courts will, in their vigorous defence of rights, make unpopular decisions. The Bermudian courts, in guarding the rights of their citizens, did precisely this in expounding their own constitution. It is a shame that the Privy Council could not follow their lead.

Elijah Z Granet