Same Sex Marriage Legal Challenge Underway

May 21, 2018

[Updated] The ‘Roderick Ferguson et al vs the Attorney General’ legal matter is listed on the Court schedule to begin today [May 21], with the case set to challenge the Domestic Partnership Act.

Same sex marriage was initially legalised in Bermuda following a Supreme Court decision in May 2017, with Greg DeRoche and Winston Godwin successfully challenging the law, with the court ruling in their favour, saying that “common law discriminates against same-sex couples by excluding them from marriage.”

The court ruling paved the way for same sex couples to get married, however did not automatically extend all the same legal benefits opposite sex couples received to same-sex couples. The Domestic Partnership Act then passed in Bermuda’s legislature last year, serving to create domestic partnerships, with benefits, that can be entered into by both same-sex and heterosexual couples.

The law also serves to restrict marriage as being between a man and woman, in effect ‘overturning’ the court ruling — which led to some calls for boycotts and negative international media coverage with the island being billed as the “first country to overturn same sex marriage” — and it is the provision in the law which serves to overturn same sex marriage that is being challenged.

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The Domestic Partnerships Act is set to take effect on June 1st of this year, and as it stands now, same sex couples can get married in Bermuda until May 31, 2018.

Earlier this year, lawyer Mark Pettingill — who represented Greg DeRoche and Winston Godwin in 2017 — filed a motion on behalf of a client challenging the constitutional aspects of the Domestic Partnership Act.

At that time, Mr Pettingill told Bernews that Roderick Ferguson, a Bermudian man living in the United States, filed this lawsuit because “the right to have a same-sex marriage has been taken away.”

The former Attorney-General maintained that as Bermuda created legislation that removes it, the Domestic Partnership Act is unconstitutional.

The Orginating Summons filed [PDF] is seeking an Order declaring the “Domestic Partnership Act 2018, in so far as its effect is to reverse the decision in the case of Godwin & Deroche v The Registrar General, the Attorney General et al [2017] SC (Bda) 36 Civ, notwithstanding provisions of the Human Rights Act 1981, is void.”

Following that, OUTBermuda and Maryellen Jackson also filed legal action in the Bermuda Supreme Court seeking an order declaring that provisions that “have the effect of revoking same-sex marriage” are in contravention of the Bermuda Constitution, and last month they said they were preparing an “application to join their case to the Ferguson v Attorney General case so both cases can be heard together.”

“OUTBermuda and Ms. Jackson strongly oppose any measure to revoke the right to marry by the Bermuda Government and believe that the ruling originally handed down by the Supreme Court of Bermuda in May 2017 permitting same-sex marriage is good law,” they said.

OUTBermuda and Maryellen Jackson are represented by Rod Attride-Stirling of ASW Law, while Mark Pettingill will be representing Roderick Ferguson.

Update 3.37pm: Written by Don Burgess:

The case against the Domestic Partnership Act began in Supreme Court today in front of Chief Justice Dr Ian Kawaley.

The gallery of the courtroom had more than a dozen onlookers, who heard Mark Pettingill argue that for people whose orientation is gay and “I want to marry a man and this proposed law destroys that dream.”

Mr Pettingill said the DPA, which is scheduled to go into effect in June, discriminates against a class of people. He is representing Rod Ferguson, a gay Bermudian man who lives in the United States.

Mr Pettingill said that “gay people and right thinking people took the view and have the view” that the rights of homosexual had become full, and that they were “protected to do all the things their heterosexual friends, including that right to marry.”

The Chief Justice said that there is no guarantee in a democracy that the law will remain the same, however the is a guarantee to have fundamental rights protected by the Constitution remain the same until the Constitution is amended.

The Chief Justice added that the right of Parliament to pass laws is fundamental to our system, so the courts have to exercise serious restraint when asked to challenge the legality of what Parliament has done.

He added this case might be argued in a completely different way at a higher court, saying this hearing may be regarded as a ‘warm-up act.’

The case continues and we will update as able.

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