Privy Council rules on the constitutional status of same-sex marriage in Bermuda

6 April 2022 by Lucy McCann

Attorney General for Bermuda v Roderick Ferguson & Ors (Bermuda) [2022] UKPC 5 — Judgment here, links to hearings here. 

Chantelle Day & Anor v The Governor of the Cayman Islands & Anor (Cayman Islands) [2022] UKPC 6 –Judgment here, links to hearings here. 

The Bermuda Case

In the Bermuda case, the Attorney General of Bermuda appealed the decision of the Court of Appeal for Bermuda (decision here), which found in favour of the Respondents: a gay Bermudian, OUTBermuda (a Bermudian LGBTQ charity), a lesbian Bermudian, and three Bermudians associated with Bermudian churches, holding that s.53 of the Domestic Partnership Act 2018 (“the DPA”) of Bermuda, which confines marriage to a union between a man and a woman, was invalid under the Bermudian Constitution (“the Constitution”).

Lord Hodge and Lady Arden (Lord Reed and Dame Victoria Sharp agreeing) gave the judgment of the Board, allowing the appeal of the Attorney General. Lord Sales gave a dissenting judgment.

Background

Same-sex marriage is highly controversial in Bermuda. The political backdrop to this case is outlined at [25-30]. Importantly, following a general election in 2017 the Progressive Labour Party introduced the Domestic Partnership Bill, which was subsequently passed, in an attempt to reach a viable compromise on the issue of same-sex marriage. The DPA provides for legally recognised domestic partnerships between any two adults, but s.53 confines marriage to a union between a man and a woman.

The Legislature in Bermuda is bound by the Constitution, summarised at [7-9]. Chapter 1 of the Constitution sets out fundamental rights and freedoms. The Constitution does not confer a right to marry. Section 8 provides for the protection of freedom of conscience:

no person shall be hindered in the enjoyment of his freedom of conscience…the said freedom includes freedom, either alone or in the community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

Although Bermuda is not in Europe, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law through declarations made by the UK pursuant to the Convention (when it was responsible for Bermudian foreign policy) and subsequently permanently renewed after Bermuda became independent. Although it does not apply in domestic Bermudian law, as one of the “antecedents” to the Constitution, it is relevant to the interpretation of constitutional rights [10-21].

The Board ruled on two grounds of appeal and one cross-appeal, addressed in turn below.

Issue 1: is s.53 invalid because it was passed primarily or mainly for a religious purpose contrary to the secular nature of the Constitution?

The Court of Appeal had upheld the Respondents’ challenge partly on the basis that it considered that s.53 was enacted primarily for a religious purpose contrary to the secular nature of the Constitution. The Board (by a majority) overturned this decision for the following reasons:

1. The Constitution does not contain a self-standing or implicit prohibition on the enactment of legislation for a religious purpose; and
2. It is not appropriate to consider s.53 by itself and to disregard its place in the DPA as a whole.

The majority’s starting point was s.34 of the Constitution, which empowers the Legislature “subject to the provisions of this Constitution” to make laws “for the peace, order and good government of Bermuda”. This, it read as conferring plenary law-making authority rather than as a limiting provision [43]. The Board also found that within the Constitution there was no formal declaration or other express provision that the Constitution is a secular constitution [45].

Accordingly, the majority was directed to later provisions, specifically to s.8 which protects freedom of conscience, to determine whether any such prohibition is implicit. Section 8(1) prevents the hindering or interfering with a person’s enjoyment of his or her freedom of conscience. The majority found that the focus of this section was on the result or the effect of a law, administrative act or legislative measure [45]. As such, so long as the effect of a law or measure was not a hindrance of, or interference with, the enjoyment of freedom of conscience, the purpose of those who promoted the law or measure was of no consequence. Adopting a generous interpretation and avoiding narrow legalistic construction, the majority could not find any basis in the language used in the Constitution for a general principle which would nullify legislation enacted for a religious purpose [46].

Further, the Board held that:

…s.53 cannot be divorced from the rest of the DPA. In the opinion of the Board, the DPA was certainly not passed for a religious purpose. It was passed to bring about a democratic solution to a divisive debate in Bermuda over same-sex marriage and to do so in a way which accommodated the position of both sides to the debate […] and to give effect to an election promise. [58]

The majority concluded that the Court of Appeal was wrong to find that s.53 was enacted for a religious purpose, and that even if it was, such a purpose was not expressly or implicitly prohibited in the Constitution.

Issue 2: does s.53 contravene s.8 of the Constitution because it hinders the beliefs held by the Respondent (and others) in same-sex marriage as an institution recognised by law?

The Board posed three principal questions to consider the meaning and scope of s.8, specifically whether a belief in same-sex marriage came within its ambit:

1. Do the beliefs which the Respondents profess fall within the scope of the protection conferred by s.8?
2. What is meant by the enjoyment of freedom of conscience?
3. What is the scope of the protection conferred, whether negatively, in prohibiting interference with such enjoyment or positively, in providing protection in another form?

On the first question, with reference to case law on the scope of article 9 of the Convention, the Board acknowledged that the Respondents’ belief that society should recognise the relationship of long-term commitment of same-sex couples through the institution of marriage comes within the protection conferred by s.8 of the Constitution, as it would article 9 [69-71]. In answer to the second question, the Board held that ‘enjoyment’ of freedom of conscience comprised of both an internal element (to think as one pleases) and an external element (the ability to manifest and propagate one’s belief in “worship, teaching, practice and observance”) [72].

The final question – whether the state had unconstitutionally interfered with the Respondents’ enjoyment of freedom of conscience by legislating to exclude the recognition in civil law of same-sex marriage – was the central issue in this case. The majority concluded that s.8 does not impose on the state a positive obligation to give legal recognition to same-sex marriages in response to those that believe that such a right should exist [74]. Four reasons were given for reaching this conclusion:

1. The internal belief of the Respondents had not been interfered with [75];
2. The Respondents’ ability to manifest and propagate such belief in the form of arguing forcefully in favour of recognition of same-sex marriage had not been interfered with [76];
3. Churches and other religious bodies were still free to carry out marriage ceremonies and recognise them as a matter of religious practice within their community, as well as worship, teach, practise and observe a belief in the validity of same-sex marriage [77]; and
4. Section 8 does not extend to imposing a positive obligation on the state to make law that complies with that belief [78].

On that last point, the majority drew an analogy with states not being required to adopt a particular form of government, even though belief in, say, communism is protected under article 9 [78]. The point was also made that, on issue of same-sex marriage, society contains people who hold numerous competing, protected beliefs, which would, it was considered, place a state in an impossible position to perform its obligations to respect constitutional rights if it were compelled to act positively to protect them all [80].

More widely, the Board held that there was nothing in Convention jurisprudence that supported the contention that states must give legal recognition to same-sex marriage [83]. Moreover, unlike the Convention, the Constitution has no express provision for the protection of private and family life, or for the protection of marriage, or which prohibits the discrimination on the ground of a person’s sexual orientation (such as are found in articles 8, 12 and 14 of the Convention and some other national constitutions) [91]. Therefore, the Board emphasised that there is as yet “no international consensus on the way in which committed same-sex relationships should be recognised in law” [93] and that reliance could not be placed on other international instruments or constitutions as a basis for reading into the Constitution protections which it simply does not provide [91].

Lord Sales’ dissenting judgment

In his dissenting judgment, Lord Sales would have dismissed the Attorney General’s appeal. He took issue with the majority’s analysis of the nature of the Respondents’ belief and claim of conscience of individuals who wish to be able to marry a person of the same sex [110].

Rather than a ‘political belief’ that same-sex marriage should be recognised in law, Lord Sales characterised the Respondents’ belief as a profound moral concern (either religiously or ethically based) and a deeply held matter of personal conscience that shapes their approach to intimacy and relationships [111-118]. By Lord Sales’ logic, it therefore followed that s.53 constituted a hindrance to the manifestation of the Respondents’ beliefs, in a way that cannot be said of those who oppose gay marriage, which is (usually) a belief about how other people should live their lives and does therefore not hinder their freedom of conscience in an equivalent way [120]. Moreover, in only allowing some access to marriage, he considered that s.53 violated the state’s duty of neutrality inherent in the right to freedom of conscience [121].

In Lord Sales’ view, the fact that the Constitution does not contain a specific provision on the issue of marriage, means that a right to marry should be considered in the context of the Constitution as a whole, and in this case by reference to s.8. Lord Sales concluded that, properly interpreted, s.8 included a right to marry which could not be restricted to opposite-sex couples [149], which was consistent with the approach of courts in other jurisdictions when interpreting constitutional rights absent of specific provisions on marriage [159-165]. On the same basis, the Strasbourg jurisprudence on marriage not extending to same-sex couples was also considered to be inapplicable because of the existence of express provision otherwise [146-147]. Accordingly, Lord Sales concluded that the right of everyone to marry was implicit in general wording of s.8, such that s.53 was unconstitutional [196-199]

Issue 3: does s.53 contravene s.12 of the Constitution which prohibits discrimination based on creed?

This issue was raised as a cross-appeal by the Respondents, after the Court of Appeal rejected their case under s.12 of the Constitution. Section 12 protects against discrimination which s.12(3) defines as “affording different treatment to different persons attributable wholly or mainly to their respective descriptions…by creed”. The Respondents’ case was that s.53 was unconstitutional because a belief in legally recognised same-sex marriage is a ‘creed’ for the purposes of s.12. The Board dismissed this, upholding the decision of the Court of Appeal on the basis that ‘creed’ was a reference to a system of beliefs (such as adherence to a religion or a secular belief like communism) rather than a single belief, and because the exclusion of same-sex couples from marriage was not attributable to a discrimination based on creed but was discrimination based on sexual orientation [97].

The Cayman Islands Case

The Privy Council also ruled separately that the constitution of the Cayman Islands does not confer a right to legal recognition of same-sex marriages. In this case the Board dismissed the appeal unanimously, with Lord Sales giving the judgment.

Comment

In the Bermuda case, I consider that Lord Sales was right to take issue with the majority’s characterisation of the nature of the belief at issue. However, even on their narrower political framing, the majority accepted that it was a belief that attracted the requisite protection under s.8 (analogous to article 9), so this difference doesn’t take the issue much further. The difficulty with Lord Sales’ position, however, is that it doesn’t decisively grapple with the question of whether protection under s.8 extends to a positive obligation on the state to recognise same-sex marriage in law.

This decision comes at a time when the legal and governance ties between Britain and Commonwealth countries are under intense scrutiny. I take the view that the Privy Council’s approach to this case was influenced by a reluctance to weigh in on the fragile political compromise that the DPA represents, such that it has reached a decision which ultimately prioritises upholding the democratic legislative process in Bermuda.

Lucy McCann is currently a pupil at 1 Crown Office Row.