Ferguson v Attorney General; OUTBermuda and Others v Attorney General

• Jurisdiction: Bermuda
• Judge: Bell JA,Kay JA,Baker P
• Judgment Date: 23 November 2018
• Docket Number: Civil Appeal 2018 Nos xx11 and 12
• Date: 23 November 2018
• Court: Court of Appeal (Bermuda)

[2018] Bda LR 106

In The Court of Appeal for Bermuda

Before:

Baker P; Kay JA; Bell JA

Civil Appeal 2018 Nos xx11 and 12

Between:

Attorney General for Bermuda

Appellant

and

Roderick Ferguson

Respondent

Attorney General for Bermuda

Appellant

and

Out Bermuda

1^st Respondent

Maryellen Claudia Louise Jackson

2^nd Respondent

Dr Gordon Campbell

3^rd Respondent

Sylvia Hayward Harris

4^th Respondent

Parlor Tabernackle of the Vision Church of Bermuda

5^th Respondent

Mr J QC, Mr M Douglas and Ms L Sadler-Best for the Appellant

Mr M Pettingill, Mr R Myers and Ms K Richards for the Respondent in No 11

Mr R Attride-Stirling for the Respondents in No 12

The following cases were referred to in the judgment:

McFarlane v Relate Avon Limited [2010] EWCA Civ 880

Mouvement Laique Quebecois v Saguenay [2015] 2 SCR 3

R v Big M Drug Mart Ltd [1985] 1 SCR 295

Hamilton Street Railway case [1903] AC 504

Lieberman v R [1963] SCR 643

R v Edwards Books [1986] 2 SCR 713

Reyes v R [2002] AC 235

Commodore of the Royal Bahamas Defence Force v Laramore [2017] 1 WLR 2752

Minister of Home Affairs v Fisher [1980] AC 319

Matadeen v Pointu [1999] AC 98

Attride-Stirling v Attorney General [1995] Bda LR 6

Schalk v Austria (2011) 53 EHRR 20

Hamaleinen v Finland [2015] FCR 379

Oliari v Italy (2017) EHRR 26

Marshall v Deputy Governor of Bermuda [2010] UKPC 9

Halpern v Attorney General of Canada (2003) 65 OR (3d) 161

R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246

Same sex marriage — Legislation enacted to ban — Whether passed for religious purpose — Bermuda Constitution — Freedom of conscience — Discrimination due to creed

JUDGMENT of Baker P

Introduction

1. This is the judgment of the Court. Same-sex marriage invokes strong opinions both in those who support it and in those who are against it. It is important to state at the outset that this litigation is not concerned with the correctness of either of those views. This appeal is about section 53 of the Domestic Partnership Act 2018 (“the DPA”), whether it was passed for a religious purpose and whether it offends sections 8 and/or 12 of the Bermuda Constitution (“the Constitution”). Kawaley CJ held on 6 June 2018 that it was not passed wholly or mainly for a religious purpose but that it does offend both sections 8 and 12 and granted declarations accordingly. The Attorney General for Bermuda has appealed against his decision on sections 8 and 12 and the Respondents have sought to uphold his decision to strike down section 53 on other grounds including that it was passed for a religious purpose.

2. Section 53 of the DPA provides:

“Notwithstanding anything in the Human Rights Act 1981, and any other provision of law or the judgment of the Supreme Court in Godwin and DeRoche and others v The Registrar General and others delivered on 5 May 2017, a marriage is void unless the parties are respectively male and female.”

3. No complaint is made about any other provision in the DPA which, as the heading suggests, implements a comprehensive scheme for domestic partnerships.

4. Separate proceedings were brought under section 15 of the Bermuda Constitution Act against the Attorney General, the first by Roderick Ferguson (2018: No.34) and the second by OutBermuda and Maryellen Jackson (2018: No. 99). The proceedings were consolidated and three additional plaintiffs added to the OutBermuda action on the direction of the Chief Justice; Dr Gordon Campbell, Sylvia Harris and The Parlor Tabernacle of the Vision Church of Bermuda.

The Parties

5. Roderick Ferguson is a Bermudian living in Boston. He is gay and part of a spiritual community. He claims that in taking away the right to enter a same-sex marriage the DPA has deprived him of the ability to form an association with another man under the Marriage Act 1944, when he finds a suitable partner and when he returns to Bermuda. Further, the DPA has prevented him from freely expressing his creed and identity. Apart from contraventions of sections 8 and 12 he also alleged contraventions of sections 1(a), 1(c), 13(1), 3, 9 and 10 of the Constitution. OutBermuda was formerly Bermuda Bred Company and is a charity that addresses challenges faced by Lesbian, Gay, Bisexual, Transgender (“LGBT”) Bermudians. Maryellen Jackson is a lesbian Bermudian. Her claim is similar to that of Mr Ferguson; taking away the right to celebrate a same-sex marriage interfered with her freedom of conscience rights as a person who believes in the institution of marriage. Dr Gordon Campbell represents the Trustees of the Wesley Methodist Church. Sylvia Harris has, since 2009, been a Pastor in the Vision Church of Atlanta. She officiated at two same-sex marriages in 2017 and claims that the DPA hinders her religious rights by preventing her from conducting same-sex marriages which is an important part of her religious beliefs. The Parlor Tabernacle of the Vision Church of Bermuda was joined by the Chief Justice because, as a supporting non-party, arguably, it provided the strongest evidence of interference with conscience rights.

Religious Purpose

6. It is logical to start with the issue on which the Chief Justice found in favour of the Attorney-General, namely whether the section was passed for a religious purpose. If the Respondents succeed on this section 53 is of no effect and must be struck down with the result that the decision in Godwin remains the law and same-sex marriage is lawful. In order to understand this issue it is necessary to look at the DPA in the context of what had occurred before it was passed. A brief summary is as follows, although it will be necessary to explore some of the events in more detail.

• • June 2013. The Human Rights Act 1981 was amended to include sexual orientation as a ground of discrimination. Wayne Furbert, then an opposition M.P. tried unsuccessfully to remove same-sex marriage from this new provision.

• • February 2016. The Government tabled a bill to make provision for civil unions to include same-sex partners

• • March 2016. Wayne Furbert introduced a Private Members Bill (the “Furbert Bill”) to remove same-sex marriage from the Human Rights Act.

• • June 2016. The Government held a referendum. The result was that 14.7% voted in favour of same-sex marriage and 32.0% against. 17.2% voted in favour of same-sex civil unions and 29.3% against. However, as the turnout was less than 50% of those entitled to vote the questions were taken to be “unanswered.”

• • July 2016. The Furbert Bill was passed by the House of Assembly but rejected by the Senate. At about the same time the Civil Unions Bill was dropped.

• • August 2016 Godwin and DeRoche started proceedings to establish that marriage between persons of the same-sex was lawful in Bermuda.

• • May 2017 Judgment in the Supreme Court was given by Simmons J in Godwin and DeRoche v Registrar General and others[2017] SC (Bda) Civ (5 May 2017) holding that the Human Rights Act 1981, which since 2013 had prohibited discrimination on the grounds of sexual orientation, guaranteed same-sex couples the right to marry. The legal basis for this conclusion was that the Human Rights Act had primacy over inconsistent provisions of statutory and common law, and the prevailing definition of marriage being limited to opposite sex couples discriminated against same-sex couples on the ground of their sexual orientation. The Human Rights Act also expressly empowered the Court to declare that provisions of any law that were inconsistent with that Act were invalid. The decision in Godwin was not appealed.

• • July 2017 An election took place resulting in a change of government with the pL.P. winning with a large majority. In their election manifesto they promised, inter alia, to make same–sex marriage unlawful.

• • February 2018 The DPA received the Governor's assent

• • June 2018 The DPA came into effect.

7. The sovereignty of Parliament means that legislation in the United Kingdom can never be unconstitutional but the position is different in countries that have a written constitution. As the Chief Justice pointed out in the introductory section of his judgment, the source of the Bermuda Constitution is the Bermuda Constitution Order, a United Kingdom Order in Council. He said: “That Constitution created an independent judiciary based on the separation of powers and general governance structure which was explicitly secular, thus completing what had been an evolving separation of Church and State.” In Bermuda, Parliament's freedom to legislate is constrained to the extent that it must not pass legislation that is inconsistent with the fundamental rights and freedoms of the Constitution. Nor, because it has a secular Constitution, can it pass laws wholly or mainly for a religious purpose. This is common ground and beyond dispute. The arbiter of whether the legislature has crossed the permitted threshold is necessarily the judiciary. This is sometimes, as in this case, no easy matter to determine.

8. In order to decide whether section 53 of the DPA (“the revocation provision”) was enacted for a religious purpose, it is first necessary to establish how to determine the purpose of the legislation. The Chief Justice said at paragraph 62 that he found that there was no reason why the court should not be guided by the Commonwealth authorities on the secularist approach to governance which constitutions such as Bermuda's require. The authorities supported a principle agreed by all parties, namely that Parliament may not validly promulgate laws which are motivated by a religious purpose. He said that the broadest and clearest statement of the principle was to be found in the judgment of Laws L.J.in McFarlane v Relate Avon Limited[2010] EWCA Civ 880:

“[22] In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of...