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Bermuda's ban on same-sex marriage is constitutional, UK court rules

Bermuda's government appealed a 2018 decision that gay marriage was unconstitutional.

2022-03-15

Words: Alastair James; pictures: Unsplash

In a blow to LGBTQ rights, a London tribunal has ruled to uphold a ban on gay marriage in Bermuda.

The Judicial Committee of the Privy Council (JCPC), which is the highest court of appeals for many overseas British territories, sided with Bermuda’s government on Monday (14 March) in ruling that same-sex marriages don’t have to be recognised.

In 2018, Bermuda’s High Court ruled that the ban was unconstitutional, which has now been overturned. The case came to the JCPC after Bermuda’s Attorney General appealed the previous decisions.

"Our work will go on"

In their judgement, Lord Hodge and Lady Arden said: "The protection of a 'practice' does not extend to a requirement that the state give legal recognition to a marriage celebrated in accordance with that practice."

The result was a four to one vote, with Lords Sales siding with campaigners to legalise gay marriage.

He wrote that the attorney general "fails to give sufficient recognition to the importance of one’s conscience, which is the kernel of an individual’s personality."

He also says the Attorney General "fails to take seriously the text of the Constitution as a legal instrument which, unlike the European Convention on Human Rights (“the ECHR”), contains no lex specialise provision on marriage, but which contains a general protection for freedom of conscience and the right to manifest one’s conscientious beliefs by living in accordance with those beliefs (subject to a power on the part of the state to interfere with that right where that is justified for social reasons, which justification is absent in this case)."

Responding to the news, OUTBermuda, an LGBTQ campaign group, wrote: "Our work will go on. #OutBermuda continues to advocate for equality, justice and dignity for all #LGBTQ+ Bermudians. We will do so with gratitude to all the advocates and allies who stood by us, and generous corporate allies like Carnival Cruise Lines."

The group has also called for clarity on how same-sex marriages performed lawfully since 2017 will be handled.

As per Reuters, Roderick Ferguson, who helped bring the case for gay marriage, has said: "Our supporters often say 'love wins.' This time it didn't. Our work as a society is not done until everyone's humanity is recognized both in law and in life."

Domestic partnerships for same-sex couples are still legal in Bermuda. 

The JCPC also ruled separately that the Cayman Islands’ constitution didn’t have to recognise same-sex marriage either. That ruling was unanimous.