Godwin & DeRoche v Registrar General and ors

• Jurisdiction: Bermuda
• Judgment Date: 05 May 2017
• Date: 05 May 2017
• Docket Number: Civil Jurisdiction 2016 No 259
• Court: Supreme Court (Bermuda)

[2017] Bda LR 46

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 259

In the matter of Order 53 of the Rules of the Supreme Court

And in the matter of the inaction of the Registrar General with regards to a notice of marriage

Between:

Winston Godwin

1^st Applicant

Greg Deroche

2^nd Applicant

and

The Registrar General

1^st Respondent

The Attorney General

2^nd Respondent

Minister of Home Affairs

3^rd Responden

Human Rights Commission

1^st Intervenor

Preserve Marriage Bermuda Limited

2^nd Intervenor

Mr M Pettingill and Mr G Spurling for the Applicants

Mrs S Dill-Francois for the Respondents

Mr R Attride-Stirling for the 1^st Intervenor

Mr D Duncan for the 2^nd Intervenor

The following cases were referred to in the judgment:

Presidential Insurance Co Ltd v St Hill [2013] 3 LRC 7

Pepper (Inspector of Taxes) v Hart [1993] AC 593

Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130

Bermuda Bred Co v Minister of Home Affairs and Attorney General [2015] Bda LR 106

Minister of Home Affairs v Fourie and anor (2005) ZACC 19

A and B v Director of Child and Family Services and Attorney General [2015] Bda LR 13

In re Amin [1983] 2 AC 818

Gichura v Home Office and anor [2008] ICR 1287

Canada (Attorney-General) v Davis 2013 FC 40

Young v Bristol Aeroplane Co [1944] KB 718

Huddersfield Police Authority v Watson [1947] 2 All ER 193

Aggio v Howard de Walden Estates Ltd [2007] 3 All ER 910

Griffiths and anor v Minister of Home Affairs [2016] Bda LR 66

Prager v Blatspiel, Stam p & Hancock Ltd [1924] 1 KB 566

Judicial review — Discrimination on the basis of sexual orientation — Meaning of “services” — Whether prior decisions of the court decided per in curiam — Same sex marriage

JUDGMENT of Simmons J

INDEX

Topic	Paragraph Number(s)
Introduction	1 – 2
The Facts	3 – 7
The Parties and Interveners	8 – 10
The Position of the Litigants in Outline	11 – 17
The Legislation	18
Preliminary Issue	19 – 50
Marriage: Whether there is a common law position and or statutoryprovision on marriage that constitutes a bar to same-sex marriage	51 – 91
Discrimination: Whether the Applicants have been discriminated against on the basis of their sexual orientation	92 – 98
Service: Whether the Registrar-General performs a “service” as contemplated by section 5 of the Human Rights Act 1981	99 – 128
Conclusion	129
Remedies: discussion on the appropriate remedy	130 – 134

Introduction

1. This case raises a deeply controversial issue of whether same-sex couples are entitled to marry pursuant to law in Bermuda. Arguments for and against have been raised in public (and no doubt in private) that reflect values and beliefs that Bermudians hold which are informed by cultural, moral and religious norms and which have ascended into the political arena thereby stoking the controversy.

2. The institution of marriage has a long heritage which is deep seated in communities throughout Judeo-Christian countries of the world. This has been conveniently adumbrated by Kennedy J for the majority in the United States Supreme Court decision of Obergefell Et Al v HodgesUNK576 U.S. __(2015):

“From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 i Chi: Book of Rites 266 (C Chai & W Cha eds., J Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” See De Officiis 57 (W Miller transl 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.”

The Facts

3. The facts of this case are relatively simple and straightforward. The Applicants are both male. Each states by affidavit that they met in Canada, the home of the second Applicant, and started dating in 2015. They both love Bermuda, the home of the first Applicant. It is their wish to be married in Bermuda irrespective of their gender as recognition of the feelings that they have for one another.

4. They instructed their attorneys at Pettingill & Co of Hamilton, Bermuda to assist in that regard. Pettingill & Co delivered the requisite Notice of intended marriage to the Registrar General (having responsibility for licencing and contracting civil marriages) tendered a cheque for the appropriate fee and requested that a marriage licence be issued in accordance with the Marriage Act 1944.

5. By written correspondence to Pettingill & Co. dated the 6th and 7th July 2016 the Registrar General (Registrar) refused to issue the licence on the sole basis that the section 13 of the Marriage Act must be read in conjunction with the Matrimonial Causes Act 1974 section 15 (c) the latter of which provides that a marriage is void on the ground that the parties are not respectively male and female.

6. Subsequently, by letter of the 19th July the Registrar withdrew the above-mentioned letters in which he had declined to accept the applications, and stated that he would seek the advice of the Attorney General.

7. The Applicants now apply by way of judicial review of the Registrar's refusal to process the marriage application as provided for in section 13 of the Marriage Act. It is their position that such refusal for the reasons given is in breach of the Human Rights Act 1981. The relief that they seek is:

• (a) an order of mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act;

• (b) a declaration that same-sex couples are entitled to be married under the Marriage Act.

The Parties and Interveners

8. The Applicants have been introduced above. The Respondents are the Registrar General who has responsibility for issuing marriage licences and the authority to contract civil marriage ceremonies pursuant to the Marriage Act 1944. The Attorney General is joined pursuant to section 29(2) and the Minister of Home Affairs as the Minister with responsibility for the Registry General.

9. The First Intervener the Human Rights Commission (HRC) was joined by Consent Order dated 17 October 2016. The Human Rights Commission is set up under the Human Rights Act to administer the Act. It is its position that its view on its own act are important for the court to take into account. The HRC also is interested in the underlying issues as they affect all Bermudians and persons in Bermuda who look to the Human Rights Act and the Constitution for protection.

10. By Order of the court of 24 October 2016 The Second Intervener Preserve Marriage Bermuda Limited was granted leave to intervene in these proceedings. Preserve Marriage Bermuda Limited (PMBL) is a charitable organization which supports equal opportunities and rights for same-sex couples but which believes that marriage, by definition, involves the pairing of a man and a woman. It is therefore opposed to calls for same-sex marriage. PMBL took a central position in the national debate over same-sex relationships and called for the referendum on the subject which was held on 23 June 2016. Notwithstanding the failure of the referendum PMBL assert in their affidavit evidence that they represent the majority of the population that is against same-sex marriage.

The Position of the Litigants in Outline

11. The Applicants submit that the application before the court is a relatively simple matter of statutory interpretation. That the preamble to the Human Rights Act 1981 perfectly encapsulates the status of the law in Bermuda in considering the fundamental human rights of same-sex couples. Additionally, that the Bermuda Constitutional Order 1968 gives protection to religious freedom and allows the secular and the religious to peacefully co-exist.

12. They urge the court to also consider the historic prejudice suffered by homosexuals and same-sex couples and the development of human rights around the world and in Bermuda to address it. One of the central points of the Applicants arguments is that without any specific legislation the Respondents cannot get around the primacy of section 20 of the Human Rights Act.

13. The HRC support the Applicants and agree with their statutory construction arguments. The HRC asserts in affidavits filed on its behalf that societies views on marriage has changed not just over a few hundred years but especially in the last 10 years. In addition, in so far as the relief sought is concerned it asserts that the Human Rights scheme in Bermuda allows the court to re-write the MCA to make it compliant with the HRA. The HRC argues that the Human Rights Scheme in England analysed in cases to which the Respondents turn in support of their submissions is entirely different from that in Bermuda and does not provide the same remedies as are available under the HRA.

14. The Respondents' position is that the Registrar was bound by...