Column: ‘Another Appeal Not In Best Interests’

December 3, 2018 | 43 Comments

[Opinion column written by OUTBermuda Directors Chen Foley & Zakiya Johnson Lord]

OUTBermuda has considered the judgment of the Court of Appeal relating to the right of gay and lesbian couples to marry. We believe the Court achieved the right outcome, and that its decision is legally sound. Furthermore, we do not believe an appeal to the Privy Council  is in the best interests of our country. We strongly urge Government instead to accept the result.

Contrary to Government’s recent statements, the Court of Appeal’s decision does not undermine Parliament. It was never right for this current Government, or the One Bermuda Alliance one before it, to allow itself to be bullied by Preserve Marriage into making laws that served no purpose other than to disadvantage gay and lesbian Bermudians. On that basis alone, the outcome in the Court of Appeal is justified.

OutBermuda December 2018 TC

Anyone who has not yet read the Court of Appeal decision should do so. It is not too long [at least as far as court judgments go], and for the most part is written in fairly plain to understand language. The judgment is publicly available online [PDF], including on OUTBermuda’s website.

Government’s appeal was not actually concerned with determining whether a particular view on same-sex marriage is correct. The same will be true of any future appeal to the Privy Council. Rather, the case turned on a number of discreet legal points concerning the relationship between governments and the people. Those legal points have implications far beyond Bermuda’s LGBTQ community.

Parliament was created by the Bermuda Constitution. Its law making powers are necessarily restricted to being exercised in accordance with the rule of law, which includes respecting constitutional principles. Where any government makes laws that infringe upon the constitutional rights of any person, that person has always had recourse to the courts even if they are in a minority.

Government lost both the initial trial and subsequent appeal because Parliament has acted outside the authority granted by the Constitution by not respecting the LGBTQ community’s constitutional rights. Every Bermudian is protected under the Constitution, and is guaranteed the freedom of conscience, as well as the right to hold a chosen religious belief, or alternatively not to hold any religious belief at all. The courts found that Government unjustifiably interfered with those rights.

Prior to the last election the Progressive Labour Party made a promise to remove the right of gays and lesbians to marry if it was elected, a promise Government publicly admitted was made to appease opposition from Preserve Marriage to the Supreme Court’s decision in Godwin. That promise was not one it could lawfully keep. Fulfilling that commitment meant that Government would have to infringe upon the protected constitutional rights of some Bermudians without any lawful or justifiable basis for doing so.

In the Supreme Court, Government accepted that we live in a secular democracy, not a theocracy. This means Government accepted that it cannot use its powers solely to give effect to the religious views of any one particular group. Government’s admission on this point was crucial to the outcome of the recent appeal. This is because the only justification Government gave to the court for overriding the constitutional rights of gay and lesbian Bermudians was its desire to implement a legal framework for recognizing same-sex relationships that was acceptable to the religious views of Preserve Marriage.

Importantly, the Chief Justice went out of his way to invite Government to clarify its position by offering new evidence that could justify its actions. Government chose not to do so, or likely was unable to do so, because it was unable to identify another basis for banning marriages between same-sex couples given everything it had publicly stated on the issue. Against that background, the outcome of the appeal is not really all that surprising.

Marriage equality has been the law of Bermuda since Godwin in May 2017. Since that decision no one in Bermuda has been adversely impacted by the same-sex marriages that have taken place in these islands or aboard Bermuda-registered cruise ships. Importantly:

  • No minister of religion has been forced to perform a wedding for a same-sex couple;
  • No church has been forced to host a wedding or reception for a same-sex couple;
  • No individual who holds a religiously based view opposing marriages between same-sex couples has been forced to alter their beliefs;
  • No individual, organization, church or other group has been forced to amend their doctrine, or creed, or form of worship;
  • No heterosexual person has been forced into a marriage with someone of the same sex;
  • The earth has continued traversing its path around the sun, rising in the east over St. David’s and setting in the west beyond Somerset.

The financial impact of prolonging the fight against marriage equality cannot be understated. The rule in Bermuda is that a losing party to a court case must pay the legal costs of the winner. Government is now responsible for the many hundreds of thousands of dollars spent by OUTBermuda and the other parties to the litigation.

A failed appeal to the Privy Council will result in Government not only paying its legal fees for another QC, but also those incurred by all other parties involved. These costs are in addition to the legal costs of all the parties involved in the Godwin litigation.

These are all on top of the costs incurred in relation to the meaningless referendum held in 2016 – lest we forget that the Referendum Act of 2012, an Act passed by a prior Progressive Labour Party Government, mandates that less than 50% of the electorate voting in a referendum renders the outcome invalid.

OUTBermuda is indebted to the financial, emotional and spiritual support provided by Bermuda’s LGBTQ community and allies throughout the court process. We also acknowledge the work and dedication of Rod Attride-Stirling and his legal team.

In addition, OUTBermuda recognizes that the blind opposition of Preserve Marriage to the proposal for Civil Unions also played a key role in paving the way for full marriage equality in Bermuda today. Had Preserve Marriage not prevented the previous OBA Government from advancing legislation to create Civil Unions, there is a strong likelihood that the Supreme Court may not have ruled the way it did in Godwin.

As the Court of Appeal stated in its judgment, “Preserve Marriage has the right to believe, but it does not have the right to impose its beliefs on anyone else.” To be very clear, marriage equality does not impact anyone other than those gay and lesbian couples intending to marry.

Preserve Marriage has continually repeated the incantation that the European Court of Human Rights has not established marriage as a right for all people; but they conveniently ignore the fact that the European Court has prescribed a positive duty on governments [including our own] to provide legal recognition in some shape or form for same-sex couples.

Where governments fail to do so because of fear of political fallout [which was the case in Bermuda] the courts can be asked to intervene; and as Bermuda’s Supreme Court ruled, given marriage in Bermuda traces its roots to judge-made law, one option available to the court when considering how to grant legal recognition to same-sex relationships is to affirm full marriage equality.

There is no justification for Government continuing to spend any money with the intention of advancing the position of Preserve Marriage.

The argument over marriage equality has now been settled. A further appeal will not consider the rights and wrongs of whether two men or two women should be permitted to marry. The time for arguing over that has now passed. Instead, the appeal will focus on discreet legal principles and the question of whether the Bermuda Government should be permitted to ignore those principles.

Essentially, Government will be arguing that it is entitled to ignore constitutional protections afforded all Bermudians where it is politically expedient for it to do so. OUTBermuda believes it is wholly unacceptable for a democratic government to advance such an argument.

If Government chooses to appeal it should commit to publishing the advice given by its QC on its chances of doing so successfully. This is because the ultimate goal of any appeal will be to give this and successive governments [regardless of political persuasion] power to override the rights of all citizens as they please, and that argument will be made at tax payer expense.

- Chen Foley & Zakiya Johnson

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Comments (43)

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  1. spider says:

    Unfortunately the PLP party has a dilemma they can choose to pursue what is increasingly becoming an embarrassment to the party or continue to pursue a fruitless ambition for their electorate. Losing three times is enough however, I hope they appeal to the Privy council because when they lose again which undoubtedly they will,then their decision will give a legal defence to other jurisdictions around the world. We can thank “Preserve Marriage” they will go down in history as the stalwarts who fought to preserve marriage. Amen.

    • Not says:

      Gotta laugh at the claim for hundreds of thousands of dollars! These lawyers are full crazy if they think that we will pay them for defending gays! Get the gays to pay for their mess!

      • Triangle Drifter says:

        I’m confused. Who was it that caused all of this again? One thing is clear, it is the the Preserve Marriage group, the PLP & the various churches who should be liable for court costs. Both sides.

      • Double S says:

        Apparently you are not very well versed on how the legal system works.

        You and I (ie the taxpayer) will end up paying their legal fees due to the PLP’s three failed court challenges. Imagine if that monies went to our under resourced school system or failing public transportation system. But no, they had to waste it all to satisfy the hate that you and crew have in your hearts.

        We will pay for your hate and you can’t do a thing about it.

        • PBanks says:

          Indeed. Too bad PM couldn’t be the ones financing this waste of time and money.

      • Mike Hind says:

        You don’t seem to mind paying them to attack the LGBT community though…

      • Mother Theresa says:

        Ummmm…..you will pay…..

  2. margraves says:

    Looks like the plp is snookered. Whether it goes to the PC or not, there will be further challenges by the pastors. Having failed so utterly, it’s unlikely they will retreat in prayer and reflection.

  3. Hey says:

    Preserve marriage are giving greater credit to the legal argument against their own spiteful agenda. How about preserve marriage standing up and naming themselves. One very wealthy lady should be ashamed of herself, you want to make a difference, give away all your wealth to the poor, not the rich through your agenda, maybe then God will forgive you for your actions.

  4. steve says:

    Its the PLP that has the unfortunate history of getting in bed with the wrong people.

  5. Real Deal says:

    We will fight for Children, We will fight for our families, We will fight for our future. Solid like The Rock we where created on Bermuda will not fall to the influence of outside forces with out a fight.

    We are Bermuda!

    • Mike Hind says:

      Outside forces like NOM, a foreign hat group which backed and trained Preserve Marriage?

      Or is that the kind of outside force that’s ok with you?

    • Hey says:

      How does the rights of others affect your family. It doesn’t.

    • Goose says:

      Perhaps you should fight for children. They can now be shipped off to a borstal in some foreign land without ever having access to a lawyer.

      They too are Bermuda. They are our families and they are our future.

      Keep fighting the right of consenting adults to enter into a legal contract. That’s obviously far more important than a child’s right to know their rights.

    • PBanks says:

      Fight for children? Great. Lobby the Ministry of Education to sort out their mess. And as mentioned elsewhere, pressure Govt to resolve the issues where children can be shipped away without anybody to vouch for them. Support mentoring, Big Brothers and Sisters, etc.

      Fight for families? Awesome. See previous comment, also lobby for better access to couples therapy, encourage parents to step up their roles in child-rearing. If you want to go outside the box in the whole ‘marriage’ thing, encourage gov’t to offer incentives to married couples.

      Fight for future? Brilliant. See previous, also challenge gov’t to review their plans to impose more taxes on working-class people. Address issues of healthcare. Get public transport to a level where public confidence is restored.

      All the time and money spent on telling gay adults who they should not legally marry could easily be better directed to those efforts and others.

  6. Tony Brannon says:

    Great article.
    60% voted NO to appeal to the Privy Council
    Only 31% OF REGISTERED Bermuda voters voted NO to SSM in the Referendum

    There is NO WAY the #Bermuda government can win IMO
    It is time to accept the 3 court victories and admit you were wrong on this.

    • Shut up says:

      God will deal with you when you arrive before him Tony! Think about that when you celebrate wiith your gay friends! You were given a test and you failed God. So endothelial the lesson!

      • sandgrownan says:

        God sounds like a bit of a **** to me.

      • Anbu says:

        Um seems to be its you thumpers that have “failed the test”. God will be punishing you for your utter failure at upholding his law apparently. So have fun in hell next to the gays being as u lot are such collosal failures at his word. How many of your pastors are gay again? Oh sorry, i meant “in the closet still”. Smh

      • Tania Stafford says:

        so probably a typo but endothelial refers to cells that line the interior surface of blood vessels and lymphatic vessels, forming an interface between circulating blood or lymph in the lumen and the rest of the vessel wall and guess what we ALL have red blood!

      • HAHAHAHAHA!!!! Tony, are you scared now?

        PS ….Endothelium refers to cells that line the interior surface of blood vessels and lymphatic vessels, forming an interface between circulating blood or lymph in the lumen and the rest of the vessel wall. It is a thin layer of simple, or single-layered, squamous cells called endothelial cells.

        • PBanks says:

          Who’d have thought, a learning moment from the comment section. Well done IP and Tania above.

      • Rene' says:

        if there were a god he she or whomever would have a lot of explaining to do. obviously your mind is shut to common sense.

    • sage says:

      Question, why no boycott of Taiwan who just voted to make SSM illegal?

      • PBanks says:

        Fair question. Perhaps Ellen’s handlers, etc., never got around to passing the word around.

        • sage says:

          No local tattletales you mean? What about the other mega-celebs Howard Dean , Tegan and Sara (I don’t know either) the Arquettes and hundreds of twit-erers who cancelled their trips to Bermy? And what of our local die-hard SSM crusaders, they don’t watch international news? Not even a peep?

          • PBanks says:

            I really don’t have the answer. Taiwan of course is larger, bigger population, a bigger ‘global name’ by far. Only thing that may make sense is that Taiwan’s literally on the other side of the planet and maybe out of the scope of those who may have either visited Bermuda (Ellen or Patricia Arquette?) or targeted Bermuda politically (Dean?)

    • Stand For Truth says:

      This agenda is part of the population control agenda that is being forced down the masses throats by those are at the forefront of this agenda globally including Bermuda.

      The United Nations 2030 Agenda (Goal 5) Achieve gender equality and empower all women and girls

      Translation: Criminalize Christianity, marginalize heterosexuality, demonize males and promote the LGBT agenda everywhere. The real goal is never “equality” but rather the marginalization and shaming of anyone who expresses any male characteristics whatsoever. The ultimate goal is to feminize society, creating widespread acceptance of “gentle obedience” along with the self-weakening ideas of communal property and “sharing” everything.

      Individuals in Bermuda are like lost sheep and don’t know when they are being played, bamboozled and hoodwinked.

      And then you have some who do not know their history. We are living in a time of strong delusion

      • question says:

        This is utter nonsense. If you believe this crap you’re the one being brainwashed.

      • PBanks says:

        How does “gender equality and empower all women and girls” translate into criminalizing a particular religion and marginalizing heterosexuals and demonizing males?

        Uplifting one segment of society doesn’t mean that another segment has to be put down.

        You’re going to have to go a bit deeper here to explain this particular theory.

      • Mike Hind says:

        None of that is true.
        You are spreading lies in order to promote hate.

        Shame on you. Keep this disgusting filth in your own country and stop trying to spread it here.

      • Erm says:

        Wow!! Stand for truth… What on earth have you been smoking

      • Bertastic says:

        That is a pretty heavy and ridiculous conspiracy theory!! But since you are into them might I suggest any of Dan Browns books. Did you know that Mary Magdelan had a child with Jesus? Best conspiracy theory ever!

  7. Jevon says:

    The government represents the people, so they have no choice but to follow the people’s wishes.They have to go the the PC because that was one of the reasons that wiped the floor with the OBA. Is the LGBQT family advising us to do something they do not support themselves ( give up and lay down )? I think not, fight to the end is ALSO are mandate. So wake up and smell the coffee, the majority were loud and clear. We shall fight!!

    • Double S says:

      You will fight against equal rights and you’re proud of that? Typical.

    • question says:

      The problem with what you’re saying is that the government is not above the law. The law applies to everyone equally, including the government. The government cannot pass a law that is against the constitution. Not here, or anywhere where there is the rule of law.

    • Anbu says:

      The majority were not loud and clear cause the referendum didnt even have enough voters turn up to vote. Your “majority” therefore means nothing. Fight a losing battle all u want. A loss is a loss is a loss. But u guys love them spending your money anyway so have at it lol

  8. Jevon Ray says:

    You act like you didn’t know that the referendum was going to mean nothing…and yet I can bet that most if not all supporters of the LGBQT community had come out to vote, and you still got slaughtered 3 to 1. Not everyone that was against SSM came out to vote, so be thankful…I guess Marijuana will be next to be legal ( freedom of conscience )

    • PBanks says:

      Honestly, I don’t see the marijuana topic going to a referendum. It looks like govt is just going to proceed with the bits and pieces they deem fit. As for what a gov’t vote would be on the legalization topic would look like, who knows. Church interests may sway a few minds there, just the way it has on the marriage one.

    • Erm says:

      I think those who want this appeal to go ahead should fund it themselves and the government should stop using taxpayers hard earned money. Money that I, as a taxpayer would want to be spent on healthcare, education, transport and the general infrastructure of this island, not petty bigotry

    • Anbu says:

      Why so sour bro?

  9. Mother Theresa says:

    Sorry Preserve Marriage/PLP ………you lost! Now move on…..please. You have already cost the Bermuda tax payers way to much money. And you will never win in the PC…..as you know.

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