Ferguson v Attorney General; OUTBermuda and Others v Attorney General

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 06 June 2018
• Neutral Citation: [2018] SC Bda 45 Civ ,[2018] SC Bda 46 Civ
• Docket Number: CIVIL JURISDICTION 2018: No. 34/2018: No.99,Civil Jurisdiction 2018 No 34 and
• Court: Supreme Court (Bermuda)
• Date: 06 June 2018

IN THE MATTER OF AN APPLICATION UNDER SECTION 15 OF THE BERMUDA CONSTITUTION 1968

AND IN THE MATTER OF THE DOMESTIC PARTNERSHIP ACT 2018

Between:

Roderick Ferguson

Applicant

and

The Attorney General

Respondent

Outbermuda

1st Applicant

-and-

Maryellen Claudia Louise Jackson

2nd Applicant

and

Dr Gordon Campbell

3rd Applicant

and

Sylvia Hayward-Harris

4th Applicant

and

The Parlor Tabernacle of the Vision Church of Bermuda

5TH Applicant

and

The Attorney General

Respondent

[2018] SC (Bda) 45 Civ

Kawaley, C.J.

CIVIL JURISDICTION 2018: No. 34/2018: No.99

In The Supreme Court of Bermuda

Repeal of same-sex marriage rights established by a judicial decision— Constitutional validity of revocation provisions of Domestic Partnership Act 2018— freedom of conscience-discrimination on the grounds of creed Bermuda Constitution, sections 1, 8, 12, and 15

Mr. Mark Pettingill, Mr. Ronald Myers, and Ms. Katie Richards, Chancery Legal Ltd. for the Applicant in 2018: No. 34

Mr Rod Attride-Stirling, ASW Law Limited, for the Applicants in 2018: No. 99

Mr. Melvin Douglas, (Solicitor-General) and Ms. Lauren Sadler-Best, Attorney General Chambers, for the Respondent

INDEX

Topic	Paragraph No.
1. Introductory	1–5
2. The applications in outline	6–20
3. Case Management Ruling	20–23
4. Godwin and Deroche	24–38
5. Limits on Parliamentary Sovereignty	39–43
6. Interpretation of Fundamental Rights and Freedoms	44–50
7. Domestic Partnership Act 2018: the impugned provisions	51–58
8. Are the revocation provisions invalid because they have a religious purpose?	59–70
9. Freedom of conscience: the section 8 of the Constitution	71–94
10. Discrimination on the grounds of creed: section 12	95–104
11. Other contraventions complained of	105
12. Conclusion	106–11

(in Court)

Introductory

1 Since “sexual orientation” became a prohibited ground of discrimination under section 2 of the Human Rights Act 1981 in 2013, the issue of legal recognition for same-sex relationships has been considered both in Parliament and in the courts. In one of the early judicial forays, I attempted to contextualize the legal ‘conflict’ on the issue of same-sex marriage in a manner which holds good for the present case:

• “1. The present application arises out of a collision of rights. The right of the courts to uphold the rule of law has clashed with the right of the Executive and legislative branches of Government to formulate and make laws. The recently protected right not to be discriminated against on the grounds of one's sexual orientation under the Human Rights Act 1981 has clashed with older but still comparatively new rights of freedom of conscience and freedom of expression which are protected by the Bermuda Constitution. In the interests of transparency, it is helpful to look at these rights in the local historical context which has tacitly informed the way in which I have both digested the various submissions advanced and decided the present application.

• 2. Nearly 400 years ago, on June 15, 1616, Bermuda's first Court of General Assize sat in the original St Peter's Church in St. George's in an era in which Church and State and the Executive and the Judiciary were all closely intertwined. Religious minorities were, in the decades which followed, frequently forced to leave Bermuda in the face of persecution. The Courts were regularly involved in criminal trials for prohibited forms of sexual conduct between consenting adults based on religious prohibitions. When Methodist Minister John Stephenson arrived in Bermuda at the turn of the 19th century with the avowed aim of preaching to “African blacks and captive Negroes”, a special Act of Parliament was passed to criminalize such preaching. In June1801, the Reverend was convicted of contravening this Act and sentenced to six months imprisonment, despite his attorney James Christie Esten pleading freedom of conscience as a defence.

• 3. Freedom of conscience and freedom of expression and the right not to be discriminated against on racial and other grounds only came to be fundamental, constitutionally protected rights with the enactment of the Bermuda Constitution Order (a United Kingdom Order-in-Council) in 1968. 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. The courts were empowered to declare that legislation which was inconsistent with the fundamental rights and freedoms in the Constitution was invalid. The antecedents for these protections included the Universal Declaration on Human Rights (1948) and the European Convention on Human Rights and Fundamental Freedoms (1950) (“ECHR”). Those international instruments were inspired by the explicit goal of deterring the ‘tyranny of the majority’, based on the very recent and chilling experience that a regime in a ‘sophisticated’ modern Western democracy, led by a man who was originally democratically elected, had perpetrated large-scale acts of genocide against an ethnic and religious minority community. Similar impulses inspired the British Government, when granting Independence to its former colonies (starting with Nigeria in 1960) and when granting self-Government to its remaining colonies (such as The Bahamas in 1963 and Bermuda in 1968), to incorporate fundamental rights and freedoms provisions into constitutions enacted by way of United Kingdom Orders-in-Council.” 1

2 On May 5, 2017, in Godwin and DeRoche -v- Registrar-General and others [2017] SC (Bda) Civ (5 May 2017), Charles-Etta Simmons J held 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 simple. The Human Rights Act provided that it 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 grounds of their sexual orientation. The Human Rights Act also expressly empowered the Supreme Court to declare that provisions of any law which were inconsistent with that Act were invalid.

3 It is a notorious fact that this decision attracted both acclaim and disdain. Prior to the decision, an organization supported by several churches was formed to campaign against same sex marriage rights (Preserve Marriage Bermuda (“PMB”)). A referendum was held on the issue in 2016, which did not produce a valid result but revealed a clear majority of those voting as opposing any legal recognition for same-sex relationships. After the decision, a Private Members Bill to reverse its effect was laid before Parliament (for the second time). After the General Election of July 18, 2017, it was apparently clear that a majority in the House of Assembly supported reversing the same-sex marriage decision. The new Government grasped the nettle and introduced its own legislative scheme which introduced for the first time a comprehensive statutory scheme for recognising same sex relationships. At the same time, same-sex marriage was effectively abolished.

4 On February 7, 2018 the Domestic Partnership Act 2018 (the “ DPA” or the “Act”) received the Governor's assent. By a Commencement Notice dated April 9, 2018, its entry into force was fixed for June 1, 2018. An important aspect of this legislation was that it provided that the Human Rights Act 1981 would not take precedence over the provisions of the DPA which facilitated recognition only for a marriage between a man and a woman. In short, Parliament repealed the effect of the Godwin and DeRoche decision.

5 The present judgment determines two separate but legally related applications which were heard together. In essence, the Applicants seek declarations under section 15 of the Bermuda Constitution that Parliament could not validly reverse this Court's decision that same sex marriage was a right guaranteed by Bermudian law. Relief was sought, most importantly, on the following grounds:

• (1) Bermuda has a secular Constitution and section 8 of the Constitution prohibits Parliament from passing laws of general application for a religious purpose. The restoration of traditional marriage was primarily a response to religious lobbying by PMB and so the relevant provisions of the DPA were invalid because they were enacted for an impermissible religious purpose;

• (2) denying and/or depriving each person who believed in same-sex marriage (whether on religious or non-religious grounds) of the right to manifest their beliefs through legally recognised marriage ceremonies interfered with the constitutionally protected freedom “either alone or in community with others, and both in public or in private, to manifest and propagate [their] religion or belief in worship, teaching, practice and observance” (section 8(1));

• (3) maintaining or restoring a definition of marriage which favoured those who believed in opposite-sex marriage and disadvantaged those who believed in same-sex marriage discriminated against the latter group on the grounds of their “creed” contrary to section 12 of the Constitution.

The applications in outline

The Ferguson application

6 Roderick Ferguson is a born Bermudian who currently lives in Boston. He is gay, part of a spiritual community and complains that the DPA has deprived him of the right to marry, offering instead a separate relationship status. By his Originating Summons issued on February 16, 2018, he complains that to this extent the DPA is void for contravening his following constitutional rights:

• (1) the protection of law (section 1(a));

• (2) deprivation of property (section 1(c) or section 13(1));

• (3) inhuman and degrading...