Same-sex marriage in Bermuda

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Same-sex marriage was legal in the British Overseas Territory of Bermuda between 5 May 2017 and 31 May 2018. The Supreme Court of Bermuda issued a ruling in May 2017 declaring that same-sex couples have a legal right to marry in the territory. However, a bill to ban same-sex marriage and establish domestic partnerships was passed by the Parliament in December 2017 and received royal assent on 7 February 2018. The law went into effect on 1 June 2018. Same-sex marriages performed before that day will remain legally recognised.

However, same-sex marriage may soon become legal once again in Bermuda. Two lawsuits were filed to the domestic partnership law and on 6 June 2018 the Supreme Court revoked the parts of the law that banned same-sex marriages. The ruling was stayed while the government filed an appeal.

History

The Bermudian Government first made clear in 2004 that it would not consider the recognition of civil unions or same-sex marriages.[1] In May 2006, Member of Parliament, former Tourism Minister Renee Webb tabled a private member's bill to add sexual orientation to the Human Rights Act. The bill was squashed when members of Parliament refused to discuss it. Socially, the situation was hard enough that some gay residents had chosen to emigrate, particularly to London in the United Kingdom (where Bermudians and other British Overseas Territories Citizens have a right to reside), in order to be able to openly be in same-sex relationships. One such emigrant noted that same-sex relationships had to essentially be secret, with partners introduced only as "friends" and relationships between two Bermudians as being very difficult.[2]

On 18 June 2013, newly elected Premier and leader of the OBA Craig Cannonier ruled out same-sex marriage in Bermuda, stating, "I can assure you that under my leadership this is not about same-sex marriage, and under my leadership that will not happen."[3][4]

An amendment to Section 15 of the Matrimonial Causes Act, which requires marriage to be between a man and a woman was introduced to Parliament in 2016. The amendment would override the Bermuda Human Rights Act's anti-discrimination provisions on the basis of sexual orientation and retain language stating that marriage is limited to a man and a woman. On 8 July 2016, the House of Assembly passed the bill by 20 votes to 10.[5] On 21 July 2016, the Senate rejected the legislation, in a 5–6 vote.[6][7]

Referendum (2016)

On 11 February 2016, Attorney General Trevor Moniz announced that the Government would introduce a bill to create civil unions for same-sex couples. He ruled out the legalisation of same-sex marriage.[8] On 29 February 2016, the Government announced its intention to hold a referendum on both same-sex marriage and civil unions.[9] On 12 March 2016, Premier of Bermuda Michael Dunkley announced that the referendum would take place mid-to-late June 2016.[10] The results of the referendum were not binding and were described by Dunkley as only a way to get some clarity on the issue. Voters were asked two questions: "Are you in favour of same-sex marriage in Bermuda?" and "Are you in favour of same-sex civil unions in Bermuda?"[11] Opposition leader Marc Bean added that after the results of the referendum are announced, the Government will govern accordingly.

The non-binding referendum on same-sex marriage was held in Bermuda on 23 June 2016.[12][13][14] Voters were asked two questions; whether they were in favour of same-sex marriages and whether they are in favour of same-sex civil unions.[12][13][14] Both proposals were rejected by 60–70% of voters, though the referendum was legally invalid as less than 50% of eligible voters turned out.[15]

A November 2015 ruling from the Supreme Court of Bermuda found that the same-sex partners of Bermuda residents should have the same rights to employment and benefits as all other spouses in Bermuda, without restrictions from immigration requirements.[16] The Government did not indicate that they would appeal the decision; however, they did ask for implementation of the judgment to be suspended for an evaluation of the full scope of the judgment on such laws effecting "bankruptcy, estates, wills, succession rules, the right to inherit or receive bequests, health insurance legislation, pensions and social insurance".[17] The ruling came into effect on 29 February 2016.[18][19]

In June 2016, after the referendum, two same-sex couples indicated they would apply for marriage licenses and hope for a court ruling to settle the issue.[20] On 6 July 2016, a male same-sex couple filed notice of their intent to marry with an accompanying letter from their attorney requesting that the banns be posted within two days. The letter went on to state that unless the registrar notified the parties within the two-day time frame, proceedings would be initiated in the Supreme Court of Bermuda.[21]

On 8 July 2016, the Registrar General's office rejected the application to publish banns for the same-sex couple who had applied for a license earlier in the week,[22] which prompted their attorney to file a writ asking the Supreme Court to determine if the refusal contravened the provisions of the Human Rights Act.[23]

The case was heard by acting Chief Justice Charles-Etta Simmons of the Supreme Court on 1–3 February 2017.[24][25][26]

Supreme Court ruling (2017)

Judge Charles-Etta Simmons issued her ruling in favour of same-sex marriage on 5 May 2017.[27] Judge Simmons wrote; "on the facts, the applicants (Winston Godwin and his Canadian fiancé, Greg DeRoche) were discriminated against on the basis of their sexual orientation when the Registrar refused to process their notice of intended marriage...The applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act 1944 and a declaration that same-sex couples are entitled to be married under the Marriage Act 1944."[27][28]

The same-sex marriage supporting Rainbow Alliance issued a statement following the ruling saying "the ruling is a victory for all same-gender loving people in Bermuda [and] ensures that same-gender couples can enjoy the same legal protections as heterosexual spouses do." The group Preserve Marriage, which opposes same-sex marriage, stated the ruling was "an attack on traditional marriage [and] on Christian and other faith-based traditional values".[29][30]

Judge Simmons' ruling included a draft order giving effect to the judgement, though she heard from counsel on precise terms of the final order before giving it effect.[31][32] The final order, which included a requirement on the part of the Government to pay the petitioners' legal costs, was published on 22 September 2017.[33][34]

On 9 May 2017, Minister of Home Affairs Pat Gordon-Pamplin said that the Government will not appeal the ruling.[35] The Registrar General posted the first wedding banns for a same-sex couple on 17 May,[36] and the first same-sex marriage ceremony in Bermuda was celebrated on 31 May 2017.[37]

The ruling was welcomed by the operators of several cruise lines with Bermuda-flagged ships, on which marriage ceremonies are performed under Bermuda law.[38]

The Preserve Marriage organisation, which intervened in the proceedings, and a separate group opposed to same-sex marriage, sought to appeal the decision to the full bench of the Supreme Court, however as of 28 September 2017, leave to appeal was not granted to the petitioners.[39]

Domestic Partnership Act 2018

Following the July 2017 elections, which resulted in the Progressive Labour Party (PLP) returning a comfortable majority of MPs in the House of Assembly, PLP MP Wayne Furbert stated he would re-introduce a bill banning same-sex marriage to the Parliament in September, saying he expected the bill to pass. Furbert stated the bill would only need to be passed by the Senate if it was amended; if it passed in its current form it would not need the approval of the Senate before being sent to the Governor for royal assent.[40] The Government has stated that if Furbert's private member's bill passes the Parliament, it will draft a bill allowing same-sex couples rights equal to non-married heterosexual couples; akin to civil unions.[41] Following Furbert's announcement, several experts doubted the capacity of the bill to avoid Senate scrutiny, particularly if it was amended to make arrangements for existing same-sex marriages.[42][43][44]

On 2 November 2017, the newly elected Government introduced a bill to replace same-sex marriage with domestic partnerships.[45] Two weeks of public consultation on the bill was held in various locations.[46] The bill was strongly criticised by human rights groups, the Human Rights Commission and the Rainbow Alliance of Bermuda, who called it "an embarrassment" and "disappointing".[47] The law would provide domestic partners with many of the same rights as married couples, particularly in areas such as pensions, inheritance, healthcare, tax, and immigration.[48][49] The bill was debated in the House of Assembly and passed by a 24-10 vote on 8 December 2017.[50] It then passed the Senate by a 8-3 vote on 13 December 2017.[51] The provision of royal assent, usually a formality, was debated in the Parliament of the United Kingdom and the subject of a lengthy review by the British Government and the Governor of Bermuda.[52] Foreign Secretary Boris Johnson received calls to withhold his approval of the bill, as territorial governors may refuse to assent certain bills but require the approval of the Foreign and Commonwealth Office to do so.[53] Eventually though, on 7 February 2018, the Governor provided assent to the bill, allowing the law to go into effect on a day to be appointed by the Minister of Home Affairs.[54][55] A number of international politicians and human rights organisations have criticised the change and argued that the move will ultimately damage the island's tourist industry.[56] Same-sex marriages performed before the law commences will remain recognised under the new law.[57]

The Bermudian Tourism Authority expressed fears and concerns that Bermuda would experience an economic fallout should the law go into effect.[58]

Bermuda's repeal of same-sex marriage received significant and considerable international media coverage.[59] The Guardian and The New York Times reported that "Bermuda had become the first country to repeal same-sex marriage".[60] The repeal was met with calls for a boycott. #BoycottBermuda quickly began trending on Twitter and other social media outlets.[61]

Additionally, several have proposed challenging the new law in court, as it "removes an established fundamental human right." Lawyer Mark Pettingill, who successfully argued before the Supreme Court that same-sex marriage was a human right in 2017, has said that any further legal action would need to be heard in higher courts, namely European courts.[62]

On 28 February 2018, the Minister of Home Affairs Walton Brown announced that the Domestic Partnership Act 2018 will take effect on 1 June 2018.[63] Same-sex couples wishing to get married before that date had to have applied for a marriage licence by 12 May.[64][65] The Commencement Notice was issued on 9 April 2018.[66]

A challenge against the law was filed with the Supreme Court on 16 February 2018.[67][68] A second lawsuit against the law was announced on 3 April 2018.[69][70] A hearing was held on 21 and 22 May 2018 before the Chief Justice of the court.[71][72]

The court ruled on the matter on 6 June 2018. It held that “maintaining or restoring a definition of marriage that disadvantaged those who believe in same-sex marriage discriminated against them on the grounds of their creed contrary to section 12 of the Bermuda Constitution.”[73][74] The court agreed to an application by the Attorney-General to stay the ruling by six weeks, to allow to government to consider an appeal.[75][76] On 5 July, the Minister of Home Affairs confirmed that an appeal was filed with the Court of Appeal.[77][78] A hearing is scheduled for 7, 8 and 9 November 2018.[79]

Statistics

Between May 2017 and February 2018, ten same-sex couples married on the island. As of January 25, there had also been four same-sex weddings on board Bermudian-registered ships.[68]

Additionally, multiple same-sex marriage ceremonies had been planned for January 2018 when major cruise lines were to begin officiating at same-sex marriages,[80] though all these marriages were cancelled.

Public opinion

An opinion poll in July 2010 showed 27% in favour of same-sex marriage and 51% against.[81]

An October 2015 Global Research's poll, commissioned by The Royal Gazette, found that 48% of Bermudians supported same-sex marriage, 44% were against.[82]

See also

References

  1. ↑ Titterton, Sarah (February 28, 2004). "Island will not consider legalising gay unions, says Minors". The Royal Gazette. Retrieved May 3, 2009.
  2. ↑ Huish, Sirkka (July 3, 2009). "I could never be open about my sexuality at home and had to move to London".
  3. ↑ Hainey, Raymond (June 18, 2013). "Cannonier: Gay marriage "will not happen"".
  4. ↑ "Premier Cannonier: No Same Sex Marriage". Bernews. 2013-06-19. Retrieved 2013-10-08.
  5. ↑ Johnston-Barnes, Owain (8 July 2016). "Bill stops same-sex marriage". Hamilton, Bermuda: The Royal Gazette. Retrieved 9 July 2016.
  6. ↑ Bermuda Senate narrowly rejects anti-marriage bill
  7. ↑ Senate rejects Human Rights Act Amendment
  8. ↑ Civil union legislation plans unveiled
  9. ↑ Bermuda plans referendum on same-sex marriage
  10. ↑ Jung Thapa, Saurav (26 March 2016). "Bermuda Plans Referendum on Marriage Equality and Civil Unions". Human Rights Campaign.
  11. ↑ "House: same-sex referendum likely in June". The Royal Gazette. 12 March 2016.
  12. 1 2 Bermuda same-sex marriage referendum set for June 23 Jamaica Observer, 12 May 2016
  13. 1 2 Referendum (Same Sex Relationships) Act 2016 Bermuda Laws Online
  14. 1 2 Referendum (Same Sex Relationships) Notice 2016 Bermuda Laws Online
  15. ↑ Jones, Simon (24 June 2016). "Voters roundly reject same-sex marriage". Hamilton, Bermuda: The Royal Gazette. Archived from the original on 25 June 2016. Retrieved 29 June 2016.
  16. ↑ "Bda Bred Co v Min of Home Affairs et al [2015] SC (Bda) 82 Civ" (PDF). Supreme Court of Bermuda. 27 November 2015. Archived from the original (PDF) on 7 May 2017.
  17. ↑ "Same-sex ruling: the likely implications". The Royal Gazette. 27 November 2015. Archived from the original on 7 May 2017.
  18. ↑ "Same Sex Partner Rights Take Effect Today". Bernews. 29 February 2016. Archived from the original on 2 March 2016.
  19. ↑ "Ministerial Statement by the Minister of Community, Culture and Sports" (PDF). Parliament of Bermuda. 29 February 2016. Archived from the original (PDF) on 7 May 2017. Mr. Speaker, the Chief Justice's declaration in the "Bermuda Bred" case comes into effect today, 29 February 2016.
  20. ↑ "Same-sex couples set for court fight". Hamilton, Bermuda: The Royal Gazette. 29 June 2016. Retrieved 29 June 2016.
  21. ↑ Strangeways, Sam (6 July 2016). "Gay couple seek consent to marry". Hamilton, Bermuda: The Royal Gazette. Retrieved 6 July 2016.
  22. ↑ Strangeways, Sam (8 July 2016). "Gay couple's marriage application rejected". Hamilton, Bermuda: The Royal Gazette. Retrieved 9 July 2016.
  23. ↑ Strangeways, Sam (13 July 2016). "Gay couple fight to marry". Hamilton, Bermuda: The Royal Gazette. Retrieved 14 July 2016.
  24. ↑ "Gay marriage case returns to court". Royal Gazette. 30 January 2017.
  25. ↑ "SSM: Government reiterates case for denying banns". Royal Gazette. 1 February 2017.
  26. ↑ "Same-sex: Fear over multiple partner marriages". Royal Gazette. 2 February 2017.
  27. 1 2 "Landmark same-sex ruling". The Royal Gazette. 5 May 2017. Archived from the original on 9 May 2017. Retrieved 5 May 2017.
  28. ↑ "W Godwin et al v Registrar General [2017] SC (Bda) 36 Civ" (PDF). Supreme Court of Bermuda. 5 May 2017. Archived from the original (PDF) on 5 May 2017.
  29. ↑ "Rainbow Alliance: 'Love always wins'". The Royal Gazette. 5 May 2017. Archived from the original on 5 May 2017.
  30. ↑ "Preserve Marriage: 'Ruling is attack on values'". The Royal Gazette. 5 May 2017. Archived from the original on 5 May 2017.
  31. ↑ "W Godwin et al v Registrar General [2017] SC (Bda) 36 Civ" (PDF). Supreme Court of Bermuda. 5 May 2017. Archived from the original (PDF) on 5 May 2017. Refer to pp.48–49 for the Judge's draft order to be reviewed by counsel
  32. ↑ "Judge sets out potential redraft of Acts". The Royal Gazette. 6 May 2017. Archived from the original on 6 May 2017.
  33. ↑ "Government to pay same-sex legal costs". The Royal Gazette. 28 September 2017. Archived from the original on 29 September 2017.
  34. ↑ "Order of the Supreme Court in the matter of; W Godwin et al v Registrar General [2017] SC (Bda) 36 Civ" (PDF). Supreme Court of Bermuda. 22 September 2017. Archived from the original (PDF) on 29 September 2017.
  35. ↑ Strangeways, Sam (10 May 2017). "Government will not appeal same-sex ruling". The Royal Gazette. Archived from the original on 16 May 2017. Retrieved 10 May 2017.
  36. ↑ "First banns posted for same-sex couple". The Royal Gazette. 17 May 2017. Archived from the original on 17 May 2017.
  37. ↑ "Bermuda has first gay marriage". The Royal Gazette. 2 June 2017. Archived from the original on 3 June 2017.
  38. ↑ Johnston-Barnes, Owain (11 May 2017). "Same-sex marriage ruling welcomed by liners". The Royal Gazette. Archived from the original on 17 May 2017. Retrieved 19 May 2017.
  39. ↑ "Health minister represents gay marriage opponents". The Royal Gazette. 28 September 2017.
  40. ↑ "Furbert: same-sex Bill looks hopeful". The Royal Gazette. 28 July 2017. Archived from the original on 28 July 2017.
  41. ↑ "Same-sex couples to have rights protected". The Royal Gazette. 28 August 2017.
  42. ↑ "Senators may have power over Furbert's bill". The Royal Gazette. 15 September 2017.
  43. ↑ "Pettingill: UK may prevent marriage Bill". The Royal Gazette. 8 September 2017.
  44. ↑ "Furbert silent on same-sex Bill | The Royal Gazette:Bermuda News". The Royal Gazette. Retrieved 2017-10-22.
  45. ↑ "Bill to replace gay marriages introduced by government". The Royal Gazette. 2 November 2017.
  46. ↑ "Banning same-sex marriage an 'embarrassment'". The Royal Gazette. 8 November 2017.
  47. ↑ "Group criticises domestic partnerships plan". The Royal Gazette. 23 November 2017.
  48. ↑ "Transcription: UK Debate On SSM In Bermuda". Bernews.com. 29 January 2018. Refer to the statement made by Sir Alan Duncan, The Minister for Europe and the Americas
  49. ↑ "Domestic Partnerships Act Tabled In Parliament". Bermuda News. 24 November 2017.
  50. ↑ "House: MPs approve domestic partnerships". The Royal Gazette. 9 December 2017.
  51. ↑ "Bermuda to ban same-sex marriage months after it was legalised". The Guardian. 14 December 2017.
  52. ↑ "Transcription: UK Debate On SSM In Bermuda". Bernews.com. 29 January 2018.
  53. ↑ Boris Johnson under fire for allowing ban on same-sex marriage
  54. ↑ "Governor Gives Assent: Domestic Partnership Act". Bernews.com. 7 February 2018.
  55. ↑ Domestic Partnership Act 2018 (refer to pp. 31 for note on commencement)
  56. ↑ Gay MP says Bermuda's ban on same-sex marriage will damage Britain's reputation
  57. ↑ Bermuda trades same-sex marriage for domestic partnerships
  58. ↑ Bermuda repeals same-sex marriage
  59. ↑ International Media Report On Marriage Law Bernews, 8 February 2018
  60. ↑ Bermuda becomes first nation to legalize gay marriage, then repeal it The New York Times, 8 February 2018
  61. ↑ 'Truly evil': Calls to boycott Bermuda for unprecedented repeal of same-sex marriage
  62. ↑ Pettingill says battle may be far from over
  63. ↑ "Bermuda's ban on same-sex weddings comes into effect". Jamaica Observer. 1 June 2018.
  64. ↑ Simpson, Lisa (28 February 2018). "House: Three more months of same-sex marriage". The Royal Gazette. Archived from the original on 28 February 2018. Retrieved 28 February 2018.
  65. ↑ "SSM/Partnerships Policy Takes Effect On June 1". Bernews. 28 February 2018. Archived from the original on 28 February 2018. Retrieved 28 February 2018.
  66. ↑ "Domestic Partnership Act 2018 Commencement Day Notice 2018" (PDF). Bermuda Laws Online. 9 April 2018. Retrieved 15 April 2018.
  67. ↑ Burgess, Don (16 February 2018). "Legal Challenge Filed: Same Sex Marriage". Bernews. Archived from the original on 28 February 2018. Retrieved 16 February 2018.
  68. 1 2 Strangeways, Sam (16 February 2018). "Lawsuit launched over same-sex marriage". The Royal Gazette. Archived from the original on 28 February 2018. Retrieved 16 February 2018.
  69. ↑ "Carnival Supporting New SSM Legal Action". Bernews. 3 April 2018. Archived from the original on 3 April 2018. Retrieved 3 April 2018.
  70. ↑ Lagan, Sarah (3 April 2018). "OutBermuda to challenge Domestic Partnership". The Royal Gazette. Archived from the original on 3 April 2018. Retrieved 3 April 2018.
  71. ↑ Strangeways, Sam (28 February 2018). "May date for Domestic Partnership Act appeal". The Royal Gazette. Archived from the original on 28 February 2018. Retrieved 28 February 2018.
  72. ↑ "Same Sex Marriage Legal Challenge Underway". bernews. 21 May 2018.
  73. ↑ "Summary Judgment: Ferguson et al v. Attorney-General" (PDF). Supreme Court of Bermuda. 6 June 2018.
  74. ↑ "Ruling: Ferguson et al v. Attorney-General" (PDF). Supreme Court of Bermuda. 6 June 2018.
  75. ↑ Sam Strangeways & Owain Johnston-Barnes (6 June 2018). "Court rules in favour of same-sex marriage". The Royal Gazette.
  76. ↑ "Court Rules In Favour Of SSM, Govt To Appeal". Bernews. 6 June 2018.
  77. ↑ "Government appeals same-sex ruling". The Royal Gazette. 5 July 2018. Archived from the original on 5 July 2018. Retrieved 5 July 2018.
  78. ↑ "Govt Files Appeal In Same Sex Marriage Case". Bernews. 5 July 2018. Archived from the original on 5 July 2018. Retrieved 5 July 2018.
  79. ↑ Lagan, Sarah (25 August 2018). "SSM appeal to be heard in November". The Royal Gazette. Archived from the original on 25 August 2018. Retrieved 25 August 2018.
  80. ↑ Bermuda-logged ships offer same-sex marriage The Royal Gazette, 2 August 2017
  81. ↑ "Gay cruise support twice as high as gay marriage support, survey shows". The Royal Gazette. 2010-07-16. Retrieved 2010-07-16.
  82. ↑ Poll: support for same-sex marriage
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