Bermuda: the case for same sex marriage and/or same sex civil unions

The Supreme Court of Bermuda has now twice noted, following ECHR jurisprudence, that the Crown in right of Bermuda appears to be under a positive international law duty under article 8 of the ECHR to create some coherent legal framework for the recognition of same-sex relationships formed by Bermudians“.

See, in particular:

  • Bermuda Bred Company v Minister of Home Affairs [2015] SC Bda 82 Civ; and
  • Centre for Justice v Attorney General and Minister of Legal Affairs [2016] SC Bda 64 Civ

No matter the extent of local opposition (whether it is expressed by reference to emotional, social, political, religious, biological, or moral “arguments”), it is undeniably the case that logic, fairness, and legal reason, as well as international human rights case law (from developed common law jurisdictions and essential trading partners, such as the USA, Canada, the UK, and South Africa, as well as Europe), strongly suggest that both the Bermuda Government and the United Kingdom Government are under a positive legal duty to legislate for the facilitation and recognition of same-sex relationships in Bermuda (with associated legal rights equivalent to those conferred on participants in opposite-sex marriages).

Absent legislative change, it is only a matter of time before either the Bermuda Courts, the English Courts, or the European Court of Human Rights (or a combination of all 3) hold the Bermuda Government and the UK Government to account, with associated reputational and financial risk.

It is fair to say, as Sir John Swan has done, that Bermuda “as a country, need(s) to legalise same-sex marriage. By opening up marriage to all people in our country, it removes pillars of discrimination and serves to make Bermuda a more just and inclusive society, which will not only strengthen our relationship with each other but the rest of the world as well“; and that the people need to unite “to hold the Government accountable to put forward the appropriate legislation that will deem same-sex marriage legal“.

See http://www.royalgazette.com/opinion/article/20160812/world-is-watching-our-stance-on-same-sex-marriage

But without diminishing Bermuda’s constitutional status, Bermuda is not only a jurisdiction and a country (colloquially), but a British Overseas Territory (at least for the time being, pending independence). If same-sex marriage is available to Bermudians (being British) in the United Kingdom (as it is), on what conceivable basis can it be sensibly denied to Bermudians (or any other residents of Bermuda) in Bermuda?

 

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