Legal Challenge Filed: Same Sex Marriage

February 16, 2018 | 45 Comments

[Written by Don Burgess]

Lawyer Mark Pettingill has filed a motion on behalf a client challenging the Constitutional issues of the Domestic Partnership Act. Mr Pettingill confirmed to Bernews he filed the motion Thursday afternoon.

Governor John Rankin signed the Domestic Partnership Act into law last week, which replaced a court decision allowing for same-sex marriages in Bermuda.

In December, The Domestic Partnership Act passed in the House of Assembly and was then approved in the Senate. This law replaced same-sex marriages with a domestic partnership which can be entered into by both same-sex and heterosexual couples.

Both in December, and earlier this month after the Governor gave his assent, and the hashtag #BoycottBermuda garnered attention on social media.

Mr Pettingill told Bernews that Roderick Ferguson, a Bermudian man living in the United States, was one of many people who had approached Chancery Legal about challenging the new law.

“He has a partner and wants to have the right to get married like young people do. He would like to have a family life, but to a partner of the same-sex and his ability to do that in his home country Bermuda is not available to him.”

Mr Pettingill also represented Greg DeRoche and Winston Godwin, a gay couple who successfully challenged Bermuda’s laws when their wedding banns were not published by the Registrar-General.

He said Mr Ferguson had filed this lawsuit because “the right to have a same-sex marriage has been taken away.”

He added that is “a very significant difference because Bermuda is the only country that effectively had the framework in place because of the legalising clarification of same-sex marriage then have gone about creating legislation that removes that.”

He said because of that; it makes the Domestic Partnership Act unconstitutional.

Mr Pettingill said other elements could also be argued such as the freedom of association, human rights, inhuman and degrading treatment, enjoyment of freedom of expression, and against a person’s creed.

“A person has a right to protection of their creed. A creed being their belief system…they can believe people of the same-sex can be married, and that’s their creed, that’s what’s in their church. Some churches allow people of the same-sex to get married.”

The lawyer says the DPA has trampled on Mr Ferguson’s constitutional rights and protections.

As an example, Mr Pettingill said he could have a dinner party at his house for three couples. One couple is heterosexual and married, one is gay and married, and third is Bermudian but “no longer have the right to enjoy what these other couples enjoy.”

He asked “how can that be fair? People like and desire the concept of being married. The right to a contractual marriage, for whatever reasons, is something they like to have. They want to wear the ring and say this is my spouse, we are married. They don’t want to say this is my partner and are in some type of relationship that the legislature has made up and branded.”

“It is as simple as everybody must logically have the same right as everybody else has,” Mr Pettingill said. “Once you put people until a particular class of not having this particular service that everybody else has, that is discriminatory; it is unconstitutional, it is unfair.”

He said this sets up second-class citizenship.

“It creates a sub-class. You can ride on the bus, but you have to sit at the back.”

The lawyer said many others had approached Chancery Legal about fighting the DPA.

“Some people, understandably have had misgivings or concerns about putting their names on something because they’re afraid of the potential repercussions,” he said. “They don’t like their privacy being put in the spotlight. They considered it, and we had discussions with many other people, and Rod became the person who was prepared to put his name out there and stand by his beliefs. It’s very courageous.”

The full Originating Summons follow below [PDF here]:

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Comments (45)

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  1. Thank God the notorious oba is out of power. Pettingill would not do this to his OWN!!!
    THE PUBLIC PURSE WILL BE ATTACKED.
    Thanks, Pettingill!!

    • Onion says:

      lol

      Don’t blame the person representing the victim. The PLP knew if they passed a discriminatroy law that there would be legal challenges. You can’t blame the people fighting for their rights.

    • The people voted NO, get over it already.

      • Mike Hind says:

        The LAW of the land said yes.

        Not a single one of your posts on this topic has ever been correct.

        You are hurting people. Please stop.

        It’s bad for our country.

  2. Warlord2 says:

    I think someone should organize a fund so people can donate to the legal fees.

    • Rainbow Justice says:

      This is being organized, and should be ready to launch next week

      • not gay but pro HUMAN RIGHTS says:

        see if you can’t get some funds from the overseas organizations and some business (ie, cruise ship principals) and any other affected business. Take it to the highest court in the world and stick it to the bigots

  3. me says:

    Please start a fund raiser or bank account ,we all have lots of equality money to help fund this ,
    Let’s do the right thing equality for all .

    • Rainbow Justice says:

      Stay tuned, as this is almost ready to launch.

    • Johnny says:

      What about food, or lower Healthcare costs, or funding for the many children who lack many basic needs. Since there is plenty of money why not help the people who need it most? I guess some things are more important to some people!!

      • Mike Hind says:

        Oh. So it’s one or the other, now, is it?
        You’re only allowed to donate to one cause?

        My bad. I hadn’t heard.

  4. Jared says:

    All because we have some haters out there….

  5. Paul Revere says:

    So are we to believe Mr. Pettingill, that this client as well as the other client he represented are really sincere.
    Neither lives or currently resides in Bermuda, when their action was bought against the Government of Bermuda.
    Why not get married in the US, where both his clients have lived for many years.
    Looks like they trying to have their cake and eat it too, as the age old saying goes.

    • Hmmmmmmmmm says:

      Or you are having your cake, and trying to prevent someone else having theirs.

      • p Ant says:

        agree whats his point its a world rights issue all around, suppose they wanted to come HOME to this bigoted country NOT

    • What?? says:

      Try to place yourself in the shoes of a local agreeing to be the face of this lawsuit. Their life here would be miserable – if not in danger.

      • Bermuda Mom says:

        If that were true, it could have started with Judge Charles Etta Simmons for bringing her ruling.
        This hasn’t been the case nor did I think it would be.

    • Jared says:

      hater

    • Mike Hind says:

      Are they Bermudian?

      If so, then why does it matter?

      They’re Bermudian.

  6. Crowd Fund and send a message says:

    The hate rhetoric pointed to a skewed non-binding referendum to substantiate the claims that this was a majority driven result.

    Let actiona and $$ speak louder than the shrill, bigoted words.

    Start a contrubtion fund–crowd fund–let everyone that finds this Gvt’s approach to the removal of rights offensive donate a few bucks to the cause.

    A successful funding outcome with draw a line under the topic and show the bigots that they are not in the moral majority.

    • Rainbow Justice says:

      We should be launching Crowd Funding via Crowd Justice next week…
      Stay tuned for the link

  7. Love&Respect4All says:

    I am so confused by this. I was of the understanding that domestic partnership allows for the same rights to be granted as with any hetero-couple that is Married. The union of marriage to those outside of the LGBT community believe that Marriage is ordained by God between a MAN and a WOMAN – this is their belief system (creed).
    So, is the fuss now all in the name of it not being called same-sex marriage verse same-sex partnership?
    I truly hope all this fuss is not over what this union is to be called /labeled as, because then we move into bullying tactics. So they can now infringe upon others (non LGBT persons)belief systems. Please help me understand how this segment of our community feels mistreated to the point of calling it a human rights issue.

    If you think you are going to be disrespectful of my post – please keep your negative comments to yourselves. I am just trying to understand this segments plight in all of this.

    • Anbu says:

      Because the religious are pushing their agenda on the non religious. It goes both ways.

    • Family Man says:

      It’s a bit like having a separate water fountain for gays. You’re not denying them the right to water. They can drink from their own special fountain … just not the same one heterosexual people drink from.

      All they want is to drink at the same water fountain as everyone else.

      • Jay-O says:

        Except that traditional marriage of 1 man and 1 woman being united together serves a benefit to all of society in exemplifying the best environment for the raising of any offspring which MAY result from that unique union. This extends to how societies are built. If we understand that as the purpose of marriage then it’s not the same as the analogy you gave. Same sex relationships do not provide that same benefit to society as a whole.

        We’ve already seen how a departure from that traditional unit has resulted in many social problems. Am i saying that SSM will? I don’t know- we don’t have any long term data to know. But we do know that the unit we should strive for is failing and therefore our society is failing.

        The reason we uphold traditional marriage is for the benefit of society as a whole. It has nothing to do with government wanting to celebrate your love. It has everything to do with encouraging stability in the traditional family unit which therefore carries on to society.

        • Mike Hind says:

          Procreation isn’t a requirement for marriage.
          Traditional marriage isn’t a thing, it’s just a code word for exclusion. The definition of marriage has changed many, many times.

          Not one of these arguments is valid and has been shown to be false many, many times.

          And we DO have plenty of evidence that Marriage Equality has no detrimental effects on society.
          All the places that have it have seen no negative effects from it. And it’s been years and years.

    • Mike Hind says:

      Marriage is a legal contract between consenting adults.

      It can be ordained by god if that couple chooses so, but that is not a requirement.
      Your statement is wrong.

      Can you please explain how, exactly, this would infringe on anyone’s rights?

      As for how they are being mistreated?

      They were granted equality and that was taken away.
      Domestic Partnerships are not equal to marriage.
      Treating citizens as less than equal is wrong.

      Religion is a personal choice and should only affect the people who believe that religion, especially when it harms people.

      In other words, something being against your religion means that you don’t get to do it. Not everyone else

  8. campervan says:

    Good. Where can we donate to the cause for equality please?

  9. me says:

    Bermuda needs to stamp out racism and bigotry once and for all!
    equality for all !

    • Rego says:

      The obaUBP need to do this but they always place a BLK face on their party to gain votes.

  10. Unbelivable says:

    This will go to court and once again the Supreme Court will rule in favour of marriage equality and then the BDA Govt will have a another go at banning it. Great.

    We continue to be the laughing stock.

  11. voltage says:

    Thank you Mr. Ferguson for standing up for what was just weeks ago your right to marry a person of the same sex. I am sure you will receive all types of support from Bermudian’s who live on and off our island as you pursue your and ultimately our rights.

    The political and foreign funded move by Preserve Marriage to eliminate marriage equality in Bermuda is a brutal wake up call on the significant illusion of Diversity and Inclusion in our small island community.

    We now rank people in Bermuda and then developed legislation to promote and support our ranking structures – we are creating new ‘isms’ in our world.

    Interesting to note that we can’t keep a pedophile off our streets who is a clear and present danger yet we can eliminate marriage equality in an instant by changing legislation.

    We may be open for business with the budget today however for many looking in to Bermuda or speaking out from Bermuda we know it is situational, transitional and open to political influence regardless of court rulings and the rule of law.

  12. Jus' Askin' says:

    So tired of these Heterophobics :-D

  13. Wow says:

    Good grief!! Give the gays what they want!! Who are we to judge?? They will have the highest power to answer to….just like all the rest…adulterers…thieves…pedophiles etc.

    • I agree WOW -- good grief is right says:

      the bigots and hypocrites will be in that line too!!

      The hypocrties that incite the hate I think will be in that line and our maker will be the judge–not the church or Gvt!!!

  14. God'sTruth says:

    lol lol soooooo true, tired of the hetero-phobics! You All should donate your money to something good like, homeless support, autism funds, red cross etc!!That way you can do good for yourselves instead of funding $ins…….. men + woman = Gods way of life!!! Simple worldwide math :)

  15. Me says:

    Read your Bible fool I mean READ IT

  16. Common Sense says:

    Let me get this straight. Preserve Marriage’s objectives were to oppose SSM and any kind of civil unions despite the fact that our Supreme Court had issued a legal judgement to the effect that denying same sex couples the right to a civil marriage was a breach of their rights under the Human Rights Act.

    So where are we now? SS Bermudians and residents can simply purchase an airline ticket to the USA, Canada, the UK, and a host of other countries where they can legally marry then immediately return to Bermuda and live their lives as a married couple in every sense of the word. They can now enter into a Domestic Partnership which entitles them to all the privileges of marriage. The only right they will continue to be denied is not to actually marry on Island – a right that heterosexuals will unequally continue to enjoy.

    The end result is that Preserve Marriage has failed in both their objectives.

    Now Government is facing a legal action with the potential of having to pay thousands of dollars in legal costs, and to what avail?

    This is a hollow victory at best for PM and may also prove to be an expensive waste of taxpayers dollars at worst.

    And all because same sex couples were seeking the basic human right to make a lifelong commitment to the person they love.

    • Thank you Governor says:

      The European Courts have stated that’s not a Human Right.

      The story is Jack and Jill went up the hill, not Jack and Bill!!!!!!!!!!!!!!!!!!!!

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