Privy Council Hearings on Same-Sex Marriage in Bermuda and the Cayman Islands

Posted on: 5 February 2021 by Prof Nicola Barker, Professor of Law in the School of Law and Social Justice. in Blog

This LGBT history month, the Judicial Committee of the Privy Council (JCPC) is hearing two historic cases relating to same-sex marriage from the British Overseas Territories of Bermuda (Attorney General for Bermuda v. Ferguson and Others, JCPC 2019/0077, 3rd and 4th February) and the Cayman Islands (Day and Another v. The Government of the Cayman Islands and Another, JCPC 2020/0033, 23rd and 24th February). While both cases involve same-sex marriage, these cases are fundamentally different in terms of the constitutional provisions they are based on and the legal context in which they arise.

The Cayman Islands’ 2009 Constitution has largely incorporated the provisions of the European Convention on Human Rights, including the rights to private and family life and the right to marry. However, unlike ECHR Art 12, section 14 of the Constitution expressly provides that the right to marry is a right ‘to marry a person of the opposite sex’.

At first instance, the Grand Court found that the specification of opposite sex marriage in section 14 did not exclude the possibility of a similar right for same-sex couples being located in another provision: section 9, the right to private and family life (the equivalent of Article 8 ECHR). In finding this, the Court relied on the JCPC ruling in Fisher that rights must be given ‘a generous and purposive construction’ (p.118). In addition to being a violation of section 9, the prohibition of same-sex marriage was also a violation of the petitioners’ freedom of conscience and freedom to manifest their belief in marriage as an institution through being able to get married – this is something the Cayman case has in common with the Bermuda case. The Court further found that these violations were due to the petitioners’ sexual orientation and as such were unconstitutional discrimination, for which the government had established no justification. However, these findings were reversed in the Court of Appeal and the petitioners now appeal to the Cayman Island’s final appellate court, the JCPC in London.

In contrast to the Cayman Islands Constitution, the Bermuda Constitution does not contain provisions that replicate either Art 8 (the right to private and family life) or Art 12 (the right to marry) ECHR, nor is there a broad prohibition on discrimination akin to Art 14 ECHR. Instead, the anti-discrimination provision in the Bermuda Constitution refers only to discrimination on the basis of ‘race, place of origin, political opinions, colour or creed’ (section 12). Nevertheless, and in contrast to the facts of the Cayman Islands case, same-sex marriages had been taking place in Bermuda since 2017, when a Supreme Court ruling had found that failing to issue marriage licences to same-sex couples was a violation of Bermuda’s Human Rights Act, which prohibits sexual orientation discrimination in the provision of goods and services (Godwin and Deroche v. The Registrar General [2017] SC (Bda) 36 Civ (5 May 2017)).

The Bermuda government had declined to appeal this decision on the basis that an appeal was unlikely to succeed and the Registrar began issuing marriage licenses to same-sex couples a few weeks after the judgment. However, a new Parliament subsequently legislated to abolish same-sex marriage and create instead a domestic partnership provision. That resulted in the current litigation.

A coalition of LGBT and religious organisations and individuals challenged the revocation of same-sex marriage as being unconstitutional on three grounds:

1. That the Domestic Partnership Act was passed with a religious purpose and that is impermissible under the Bermuda Constitution.
2. That there is violation of the right to freedom of conscience under section 8 in failing to allow same-sex couples and religious organisations to manifest their belief in same-sex marriage through conducting/participating in legal marriage ceremonies.
3. That the prohibition of same-sex marriage is discriminatory on the grounds of creed contrary to section 12.

In the Bermuda Supreme Court, Chief Justice Kawaley (a University of Liverpool alumnus) found that there were violations on the second and third grounds. The government appealed and the Bermuda Court of Appeal found violations on the first and second grounds, though they overturned the Supreme Court on the third ground. Same-sex marriages then resumed following the Court of Appeal’s decision and continue pending the outcome of this month’s JCPC hearing.

As the ECHR has not been replicated in the Bermuda Constitution, there has been little reference to the Convention in the Supreme Court and Court of Appeal judgments. However, the UK remains responsible for Bermuda’s compliance with international human rights law, including the European Convention on Human Rights, and Bermudians have the right to bring cases against the UK to the European Court of Human Rights. This means that, should the Privy Council find in favour of the Bermuda government, it would be open to Ferguson and OutBermuda to take their case to Strasbourg.

So far the European Court of Human Rights has not found a right to same-sex marriage under Art 12 but it has not yet heard a case in which the right to same-sex marriage has been exercised and then revoked. Revocation was surprisingly not a major focus of the oral hearings before the JCPC, but a right to marry that has already been asserted and exercised ‘according to the national laws governing the exercise of this right’ must engage Article 12 in a way that previous cases, which were seeking to introduce a new right to marry, did not. At the very least, it must bring the issue within the ambit of Article 12 for the purposes of engaging Article 14 ECHR. In the revocation of an established right and in its focus on religious freedom as an argument for rather than against same-sex marriage, the Bermuda litigation changes the terrain on which the issue of same-sex marriage is usually argued.

A fuller analysis of the legal issues in the Bermuda litigation and the social and historical context in which this case arises can be found in: Nicola Barker, ‘‘Marry in Haste…’ The (Partial) Abolition of Same-Sex Marriage in Bermuda’ Human Rights Law Review (2020) 20: 153-188.

Nicola Barker

Prof Nicola Barker is Professor in Law in the Liverpool Law School.

Professor Barker’s research takes a feminist approach to the broad areas of constitutional and family law.

If you are interested in studying within the Liverpool Law School, visit our study pages.