The Bermuda government Wednesday said it would lodge an appeal against a Supreme Court ruling allowing gay couples to once again marry in Bermuda, just five days after a ban came into effect in this British Overseas Territory.
Home Affairs Minister Walton Brown said in a statement that the decision by Chief Justice Ian Kawaley, handed down earlier in the day, would be challenged in the higher courts “subject to any legal advice that we receive”.
Justice Kawaley had upheld a constitutional challenge against the Domestic Partnership Act (DPA) and declared the sections of the legislation which revoked marriage equality as invalid.
His ruling was not set to take immediate effect because he agreed to an application by Attorney-General Kathy Lynn Simmons for a six-week stay to allow the government to decide whether to appeal.
Brown, who tabled the legislation in Parliament last year, said: “we are pleased that the Chief Justice has stayed the decision until an appeal can be submitted.”
Earlier, delivering his judgment before a packed courtroom, Justice Kawaley said the parts of the act which revoked the right to same-sex marriage were inconsistent with provisions in the Bermuda constitution which give the right to freedom of conscience and creed.
His decision came after a court battle fought by gay Bermudians Rod Ferguson, a 38-year-old singer and stand-up comedian who lives in the United States, and Maryellen Jackson and the charity OutBermuda.
The Chief Justice said the plaintiffs were not seeking the right to compel people of opposing beliefs to celebrate or enter into same-sex marriage.
“They merely seek to enforce the rights of those who share their beliefs to freely manifest them in practice,” he said.
“Persons who passionately believe that same-sex marriages should not take place for religious or cultural reasons are entitled to have those beliefs respected and protected by law.
“But, in return for the law protecting their own beliefs, they cannot require the law to deprive persons who believe in same-sex marriage of respect and legal protection for their opposing beliefs,” the Chief Justice ruled.
Ferguson hailed the ruling as “amazing” saying “it’s wonderful. I’m not an optimistic person by nature. I am thrilled. This is the correct outcome in my mind and also it’s the correct legal outcome.
“The important thing is we have spoken up for ourselves as a community. This really is for equality. It seems like just a word but it means so much. Foremost in our minds is the message this sends to young people in Bermuda that there are proud gay and lesbian Bermudians who don’t buy the line that there is any shame in being gay,” he said.
Jackson said she was looking forward to celebrating Justice Kawaley’s ruling.
She told reporters that while she was disappointed by the decision to stay the ruling’s effect, she was confident that any appeals would also go in their favour.
“I’m not nervous about the appeals process. I feel the judgment has been made, and the judgment is based on the facts, so I see no reason to be nervous about that.”
Attorney Mark Pettingill, representing Ferguson, said he was “ticked off” about the six-week stay but thrilled about the historic judgment.
He said it upheld the simple premise that everybody has the “right to love and happiness” and ought to be the last chapter in the island’s debate on same-sex marriage.
“It should be over. If common sense prevails, it should be. Allowing same-sex couples to marry doesn’t hurt anybody else. The judgment reflects that we can live in harmony and have significant differences of opinion. It demonstrates that we have an excellent judicial process,” he told reporters.
The DPA was approved by parliament last December, sparking criticism from human rights activists and UK MPs, including Prime Minister Theresa May, who said she was “seriously disappointed”.
Opposition British Labour Party MP Chris Bryant, a former Overseas Territories Minister who forced a debate on the bill in the House of Commons in London, said the law reversal would make Britain a “laughing stock in the human rights field”.
Governor John Rankin gave the legislation royal assent on February 7 but Brown deferred its implementation until June 1 to give gay couples who had already made wedding plans extra time to tie the knot.
The DPA reversed a Supreme Court ruling in May last year — two months before the ruling One Bermuda Alliance lost the general election to the PLP — that paved the way for gay couples to get married in Bermuda and on ships registered in the island.
Last May’s Supreme Court decision came in a judgment by Puisne Judge Charles-Etta Simmons after Bermudian Winston Godwin and Greg DeRoche, his Canadian partner, litigated against the Registrar-General for refusing to post their wedding banns.
Despite their landmark victory, Godwin and DeRoche chose to marry in Canada, but there were 10 same-sex marriages on the island up to the middle of February, plus four at sea on Bermuda-flagged ships.
Banns were also posted for two more maritime marriages.
The DPA put Bermuda in the unique position of being the only country in the world to have allowed gay marriage and then revoked that right.
The Netherlands was the first country to legalise same-sex marriage in 2001.
