Fundamental Principles of International Human Rights Law and Same-Sex Marriage in Bermuda

Last week the Supreme Court in Bermuda in R Ferguson v AG & OUTBermuda et al v AG[2018] SC (Bda) 46 Civ (6 June 2018) upheld the right to same-sex marriage in the Island despite legislative attempts to repeal it through the Domestic Partnerships Act (DPA).

Last year, in Godwin and Deroche-v-Registrar-General and others [2017] SC (Bda) Civ (5 May 2017) the Court held that the definition of marriage as a union between a man and a woman was invalid because it discriminated against the applicants as same-sex partners.  This judgment was based on the Bermuda Human Rights Act 1981 which empowered the Supreme Court to declare any laws inconsistent with the Act as having no legal effect. Island Rights Initiative Associate, Dr Leonardo Raznovich published an article on the Ferguson case before the recent judgment was handed down explaining the background and expanding on UK responsibilities for the Overseas Territories appeared in last month’s Counsel Magazine.

Despite a range of arguments, the Ferguson case was ultimately decided on the basis of arguments around the Bermudian Constitution, in particular the freedom of conscience rights of the applicants under s. 8 and the prohibition of discrimination on the basis of creed in s. 12 of the Constitution.  The Court found that there had been an interference with the applicants’ rights to practise their belief in same-sex marriage in a permissible way.  The Constitution could be used to protect the rights of one group to practice their beliefs, but not to force their beliefs on others.  Therefore the contested provisions of the DPA were unconstitutional.  The Court also found that those applicants who complained that their ability to manifest their beliefs by celebrating same-sex marriage had been taken away had been discriminated against on the basis of their creed as opposed to those applicants whose complaint arose from discrimination based on their sexual orientation.  It is interesting to note that the Court chose to approach the complex issues raised in this case from the perspective of rights to freedom of conscience and discrimination on the basis of creed rather than possible arguments about the right to marry or the right to private life.

This case is important, not only for its impact on the rights of Bermudians and for LGBTI rights more broadly, but also because of the fundamental principles of international human rights law that it raises.  While same-sex marriage is not recognised across the world, Bermuda is the first jurisdiction to legalise and then revoke the right to same-sex marriage.  The idea that rights, once granted, can simply be taken away at the stroke of the legislator’s pen, is one that cannot be entertained.  If it is so, none of us can be safe in the knowledge that our hard-won rights may not be taken away as the political climate changes.  In an age of populism, this is something that we should all be concerned about.  The principle of non-regression in international human rights law – that is that rights, once granted, cannot be taken away – seems so self-evident that it has not needed to be tested in international courts.  This case, however, puts that principle into the spotlight.

Because of the importance of the issues at stake, Island Rights Initiative Director, Susie Alegre, and Associate, Dr Leonardo Raznovich prepared notes on the public international law aspects of the case.  Leonardo’s arguments focused on the “living tree doctrine” in the common law while Susie focused on the principle of non-regression and the idea that international human rights law instruments are ‘living instruments’.  Although these arguments were not taken up by the Supreme Court which concentrated on Bermudian constitutional law, they were included in the written submissions and such points may become more relevant if the case is appealed.

The full judgment in the case is available here.  A summary is available here.