Supreme Court of Bermuda rules in favour of same sex marriage rights in Bermuda!

On 5 May 2017, Mrs. Justice Charles-Etta Simmons of the Supreme Court of Bermuda made legal and political history in Bermuda when she gave judgment in the case of Godwin and DeRoche v The Registrar General et al [2017] SC Bda 36 Civ.

Her conclusion, over a 48 page judgment, is that marriage is a ‘service’ that should be made available by the State, i.e. by the Bermuda Government, to same sex couples just as it is made available to opposite sex couples, since otherwise such couples are being discriminated against on the basis of a protected characteristic under the Human Rights Act 1981 (which takes priority, on the Judge’s analysis, over the Marriage Act, the Matrimonial Causes Act, and the historic position at common law).

For local news coverage, see:

It remains to be seen whether the Bermuda Government, or the intervening party ‘Preserve Marriage Bermuda Limited’, seek to pursue an appeal to the Bermuda Court of Appeal (or to the Privy Council), and if so, whether they seek a stay of execution pending determination of the appeal.

Leaving aside local politics (in the context of an imminent election), my own view is that it would be legally short-sighted for the Government to pursue an appeal, since, when the appeal reaches the Privy Council, it is extremely unlikely that the Privy Council, sitting in London, could possibly reach the conclusion that same sex marriage should be available to UK citizens residing in the UK (as it is, under English law), but not to UK (Bermuda) citizens residing in Bermuda, a British Overseas Territory (absent local Bermudian legislation) – especially in the absence of any recognized form of civil partnership or civil union.

Furthermore, if the Privy Council refused to uphold same sex marriage rights in Bermuda, it is highly likely that an appeal to the European Court of Human Rights would follow, and it is equally likely that the ECHR would hold the UK Government (and therefore the Bermuda Government) in breach of the European Convention.

Despite the arguments asserted by ‘Preserve Marriage Bermuda Limited’, the Judge’s own judgment makes clear that the Government would not be able to hide behind any ‘margin of appreciation’, in circumstances where the Government, and Parliament, have completely failed to legislate for same sex union rights to date.

There is so much that could be said about this judgment, in terms of the Judge’s reasoning, moral conviction, and conclusions.

All that really needs to be said at this stage is this: Congratulations! 

 

 

 

 

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