Published on 19 June 2023
FOURTH SECTION
Application no. 35043/22
Roderick Alexander FERGUSON and Others
against the United Kingdom
lodged on 14 July 2022
communicated on 30 May 2023
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The circumstances of the caseThe present case concerns the recognition of same-sex marriage in Bermuda. The facts, as submitted by the applicants, may be summarised as follows.
Legal and constitutional backgroundThe legislature of Bermuda can make laws subject to the Constitution of Bermuda. Chapter 1 of the Constitution sets out fundamental rights and freedoms, including freedom of conscience (section 8) and protection from particular forms of discrimination, including creed-based discrimination (section 12). The Constitution does not confer a right to marry.
The United Kingdom has extended both the Convention and the right of individual petition to Bermuda. Moreover, following an amendment in 2013 the Human Rights Act 1981 of Bermuda prohibits discrimination on grounds of sexual orientation. However, neither the Convention nor the Human Rights Act 1981 of Bermuda forms part of Bermuda’s Constitution, although the Convention, which is one of the “antecedents” of the Constitution, is relevant to its interpretation, and those rights in the Constitution which merely echo Convention rights should be read and applied in accordance with the Convention jurisprudence.
Political backgroundOn 23 June 2016 the people of Bermuda were asked to express their views on whether same-sex marriage or another form of same-sex union should be legally recognised. A majority voted against both same-sex marriage and same-sex unions, but the turnout was too low for the results of the referendum to be valid.
The then Government subsequently withdrew its draft Civil Union Bill and a member of the Assembly introduced a Private Members Bill that would have restricted marriage to a union between a man and a woman. It was passed by the Assembly but not the Senate.
Godwin and DeRoche v. Registrar General [2017] SC (BDA) 36 Civ (5 May 2017)In May 2016 the Registrar General refused to process an application for a marriage licence made by a same-sex couple. As a result of the subsequent legal challenge, in 2017 the Supreme Court of Bermuda held that the common law definition of marriage as the voluntary union for life of one man and one woman, and its reflection in the Marriage Act and the Matrimonial Causes Act, were inconsistent with the provisions of section 2 (2) (a) (ii) as read with section 5 of the Human Rights Act 1981 of Bermuda because they constituted deliberate different treatment on the basis of sexual orientation. In so doing the common law discriminated against same-sex couples by excluding them from marriage and more broadly speaking the institution of marriage.
According to the court:
“Against the legal, social and cultural back drop of changing attitudes regarding same‑sex relationships and sexual orientation it is fair to say that notions such as marriage or the institution of marriage being predicated upon heterosexual procreation and marriage being the main and most effective means of rearing healthy, happy, and well-adjusted children, to borrow a phrase from the Chief Justice, have been turned on their heads. Their historic and insular perspective as reflected in the common law definition of marriage is out of step with the reality of Bermuda in the 21st century.”
This decision was not appealed and same-sex couples were subsequently allowed to marry.
Subsequent developmentsA general election was held in July 2017 and the Progressive Labour Party (“PLP”) came into power. In their election manifesto the PLP had stated that the issue of same-sex marriage remained a matter of conscience, that they accepted that same-sex couples should have “similar legal benefits as heterosexual couples, save for marriage”, and that they would introduce legislation to achieve this aim.
The Domestic Partnership ActThe Domestic Partnership Act (“DPA”) came into effect in June 2018. It implemented a comprehensive scheme for domestic partnerships. However, section 53 of the DPA confined marriage to a union between a man and a woman, with the proviso that this section did not apply to same-sex marriages that had been entered into following the judgment of the Supreme Court but prior to the commencement date of the DPA.
Section 53 provided that the Human Rights Act 1981 of Bermuda should be disapplied in its entirety to that provision.
Legal challenge to the DPAThe new legislation was challenged by a group of individuals, including two LGBTQI Bermudians (Mr Roderick Ferguson and Ms Maryellen Jackson – applicants nos. 1 and 5), and Dr Gordon Campbell on behalf of the Wesley Methodist Church (applicant no. 8), who sought declarations that Parliament could not validly reverse the Supreme Court’s decision that same-sex marriage was a right guaranteed by Bermudian law. They relied on three arguments: that section 53 was invalid because it was passed primarily for a religious purpose, contrary to section 8 of the Constitution; that it contravened the right to freedom of conscience enshrined in section 8 of the Constitution because it hindered their enjoyment of their belief in same-sex marriage as an institution and denied them the right to manifest their belief through legally recognised marriage ceremonies; and that it contravened section 12 of the Constitution as it afforded them different treatment attributable to their description by creed.
Through their evidence, they sought protection for the following beliefs: a religious belief in marriage as an institution recognised by law which same‑sex couples ought to be able to participate in (held by persons who would like to marry a same-sex partner); a non-religious belief in marriage as an institution recognised by law which same-sex couples ought to be able to participate in (held by persons who would like to marry a same-sex partner); a religious or non-religious belief in marriage as an institution recognised by law which same-sex couples ought to be able to participate in (not held by persons who would like to marry a same-sex partner, e.g. friends and family or other same-sex married couples who would like to see future same-sex marriages); and a religious belief in marriage as an institution recognised by law which same-sex couples ought to be able to participate in (held by ministers of religion and/or churches who would like to conduct such marriages).
(a) The Supreme Court of Bermuda
The challenge was first heard by Chief Justice Kawaley, who gave judgment on 6 June 2018. He did not consider that the DPA had been enacted solely or substantially for religious purposes; rather, it had been enacted to fulfil an election promise, to provide a comprehensive scheme for dealing with the legal position of same-sex relationships, to satisfy the demands of the opponents of same-sex relationships, to meet the demands of the LGBTQ community, and to mitigate any adverse publicity for Bermuda that would follow the reversal of the judgment in Goodwin and DeRoche. However, the Chief Justice held that freedom of conscience rights could be relied on in relation to a failure by the State to provide legal protection for same-sex marriage and the decision of the legislature to remove protections that had been granted by the law. In his view, the applicants had succeeded in establishing that the DPA’s revocation provisions contravened their rights of freedom of conscience protected by section 8(1) of the Bermuda Constitution by depriving them of the opportunity to participate in legally recognised same-sex marriages.
He also found there to be a violation of section 12 of the Constitution as he was satisfied that the applicants were discriminated against on account of their belief in same-sex marriage. In this regard, he said the following:
“In my judgment it is impossible to avoid distinguishing between the position of (a) those Applicants whose main complaint is that the revocation provisions deny them the opportunity to enter into same-sex marriages, and (b) those Applicants (Ms Sylvia Hayward-Harris, The Parlor Tabernacle of the Vision Church of Bermuda and Dr Gordon Campbell) who complain solely about the impairment of their ability to manifest their beliefs by celebrating same-sex marriages. ... The discrimination which category (b) Applicants complain of is very clearly ‘wholly or mainly attributable to’ their creed, as the definition in section 12(4) of the Constitution requires. Category (a) Applicants (Mr Ferguson, Out and Ms Jackson) clearly are hindered in their ability to manifest their beliefs as I have found in relation to their freedom of conscience complaints. But the discrimination they experience is mainly because of their sexual orientation (but for which there would be no impediment to their beliefs as they would be able to access heterosexual marriage on equal terms). In cases where the ground of discrimination was slightly more ambiguous, a broad and purposive construction of section 12(4) might perhaps entitle the Court to take a more generous view of whether or not the operative ground of discrimination was a constitutionally protected or unprotected ground.
I find, having rejected the Respondent’s unsupportable contentions that the Constitution in effect gives the State carte blanche to define the institution of marriage without being required to have regard to freedom of conscience rights, that the section 12 rights of Ms Sylvia Hayward-Harris, The Parlor Tabernacle of the Vision Church of Bermuda and Dr Gordon Campbell have been interfered with in a legally impermissible way. The Respondent’s submissions may well accurately reflect the position under the ECHR at the public international law level, and indeed in those jurisdictions (like the British Overseas Territories in the Caribbean and Britain itself) where article 12 of the ECHR has been incorporated into domestic law. But I am satisfied the State does not have such latitude under Bermuda domestic law; because marriage is not defined in our Constitution as being between a man and a woman and/or as a freestanding constitutionally protected right.”
(b) The Court of Appeal
The Attorney General for Bermuda appealed. However, the Court of Appeal dismissed the appeal on 23 November 2018. It disagreed with the Chief Justice regarding the purpose of section 53, finding instead as follows:
“Whilst it is true that the Act as a whole was a political compromise introducing a comprehensive scheme for same-sex relationships and fulfilled an election promise, what matters is the underlying purpose of section 53, the revocation provision. Without it the Act provided a comprehensive scheme for same-sex relationships. The addition of section 53 was to reverse the decision in Godwin. We have paused to consider whether the fact that marriage is important both to those who have religious views and those who do not means that the purpose of the introduction of this section was not religious but have concluded on the evidence that the section was introduced into the Act at least primarily for a religious purpose. One has to look at the underlying reason for the section rather than the reasons for the Act as a whole. The percentage of those voting in the referendum against same-sex marriage was very similar to that of those voting against same-sex civil unions. This fortifies the view that the revocation provision must have been introduced for a religious purpose.”
Therefore, it found section 53 of the DPA to be invalid as it was passed mainly for a religious purpose.
The Court of Appeal agreed with the Chief Justice that section 8 of the Constitution had been breached:
“the Chief Justice was correct in holding that the Respondents’ section 8 rights under the Constitution were violated by section 53 of the DPA. Prior to that Act same-sex couples had the same right to marry as opposite sex couples. Section 53 expressly disapplied the Human Rights Act with the result that they were henceforth entitled to be discriminated against. We agree with the Chief Justice that the State cannot pass a law of general application that favours those who disagree with same-sex marriage. Section 8 of the Constitution is there to protect the beliefs of minorities and their freedom of conscience. Their freedom of conscience matters and is not lightly to be interfered with. Indeed no evidence has been advanced by the Appellant to justify that interference in the present case.”
However, it did not consider that the respondents had been discriminated against due to their description by creed, as their case was based on a single belief rather than a system or set of beliefs.
Following the Court of Appeal’s judgment, same-sex marriages resumed in November 2018.
(c) The Privy Council
The Attorney General for Bermuda appealed to the Privy Council which, on 14 March 2022, allowed the appeal. As a consequence, from that date same sex marriages could no longer take place under Bermuda law.
The Privy Council (by a 4:1 majority) rejected all of the arguments advanced by the respondents. The majority, in a judgment given by Lord Hodge and Lady Arden (with whom Lord Reed and Lady Sharpe agreed), did not accept that the Constitution contained a free-standing and implicit ban on the enactment of legislation for a religious purpose but even if that were not the case it found that the DPA had not been passed for a religious purpose but rather to bring about a democratic solution to a divisive debate in Bermuda over same-sex marriage in a way which accommodated both sides of the debate.
With regard to the second argument, the majority considered there to be two ways of analysing the matter. On the first approach, the respondents’ belief fell within the scope of section 8, but that belief was not interfered with by the State failing to legally recognise same-sex marriage. Neither the Bermudian government nor legislature had interfered with the respondents’ belief that Bermuda should give legal recognition to same-sex marriage or their ability to manifest and propagate such beliefs. The respondents were free to argue in favour of such recognition, and churches or other religious bodies could carry out marriage ceremonies for same-sex couples and recognise those unions as a matter of religious practice. However, section 8 did not extend to imposing a positive obligation on the State to make the law comply with the respondents’ belief.
On the second approach, the respondents’ belief in the legal recognition of marriage was not an expression of conscience and section 8 could not be interpreted as requiring the State to give such legal recognition, which would be inconsistent with the absence of any protection in the Constitution against discrimination on the ground of sexual orientation and the ability of the legislature expressly to disapply the operation of the Human Rights Act 1981.
In any event, the majority observed that the DPA was consistent with the United Kingdom’s obligations under the Convention. Article 12 of the Convention did not guarantee a right to a legally recognised same-sex marriage. All the Convention required was the provision of a legal framework for the recognition and protection of same-sex unions, and in this regard the DPA gave same-sex couples the right to enter into a domestic partnership, with all the same rights enjoyed by married couples. Moreover, Bermuda had no equivalent to Article 12 and the scope of section 8 of the Constitution could not be extended so as to require the State to recognise same-sex marriage. Indeed, Article 9 of the Convention, which was analogous to section 8, had been held not to cover recognition by the State of the institution of marriage.
Finally, the majority agreed with the Court of Appeal that the respondents had not been discriminated against due to their description by creed, since section 12 of the Constitution applied to a system of beliefs and not to a single belief.
In his dissenting opinion, Lord Sales indicated that he would have allowed the appeal on the second ground. For him, the majority had focused on the beliefs individuals may have about the public aspect of marriage (that is, whether same-sex marriages should be legally recognised), which missed the point; namely, that individuals may be subject to a profound religious or ethical claim on them that they should marry, and, if not allowed to do so, would be prevented from giving expression to this conscientious belief. In his view, the refusal of the State to allow or recognise same-sex marriage was a hinderance in the enjoyment by the respondents of their freedom of conscience, and perpetuated and aggravated the denigration to which such couples were subject. The State had a duty to be neutral between different religious and conscientious beliefs which individuals have, in order to afford them equal respect as citizens, ensure they are free to exercise their own ethical independence and so as to avoid the civic disparagement of vulnerable minorities, such as gay people. According to Lord Sales, the Constitution of Bermuda could be distinguished from the Convention (and indeed the International Covenant on Civil and Political Rights) because the Constitution had no lex specialis in respect of marriage. Therefore, insofar as a right to marry could be read into the Constitution, it could not be limited to opposite-sex couples.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Constitution of BermudaChapter 1 of the Constitution sets out fundamental rights and freedoms. Section 8, which protects freedom of conscience, provides as follows:
“Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public or in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance. ...
(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required:
(a) in the interests of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited interference of persons professing any other religion or belief,
except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”
Section 12 protects against discrimination on the grounds of race, etc., and provides as follows:
“Subject to the provisions of subsections (4), (5) and (8) of this section, no law shall make any provision which is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (8) and (9) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression ‘discriminatory’ means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”
The Human Rights Act 1981The preamble to the Human Rights Act 1981 reads as follows:
“WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the World and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations:
AND WHEREAS the European Convention on Human Rights applies to Bermuda:
AND WHEREAS the Constitution of Bermuda enshrines the fundamental rights and freedoms of every person whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedom of others and for the public interest:
AND WHEREAS these rights and freedoms have been confirmed by a number of enactments of the Legislature:
AND WHEREAS it is expedient to make better provision to affirm these rights and freedoms and to protect the rights of all members of the Community—”
The Act prohibits discrimination in a number of different contexts, including, in section 5, in the provision of goods, facilities and services. Following an amendment in 2013, the definition of discrimination includes less favourable treatment because of an individual’s sex or sexual orientation.
The Domestic Partnership Act (“DPA”)The preamble to the DPA describes its purpose as follows:
“WHEREAS it is expedient to provide for the formalisation and registration of a relationship between adult couples, to be known as a domestic partnership, to clarify the law relating to marriage, and to make connected and related provision;”
Section 53 of the DPA provides:
“Notwithstanding anything in the Human Rights Act 1981, any other provision of law or the judgment of the Supreme Court in Godwin and DeRoche v The Registrar General and others delivered on 5 May 2017, a marriage is void unless the parties are respectively male and female.”
Pursuant to section 54 of the DPA, section 53 does not apply to same-sex marriages entered into between the date of the decision in Godwin and DeRoche and the commencement date of the DPA.
Section 48(1) of the DPA states that section 53 and section 15(c) of the Matrimonial Causes Act 1974, which provides that a marriage is void unless the parties are male and female, are to take effect notwithstanding anything to the contrary in the Human Rights Act 1981 of Bermuda.
COMPLAINTS
The first seven applicants complain under Article 12, read alone and together with Article 14 of the Convention, about the revocation of the legal recognition of same-sex marriage in Bermuda by virtue of section 53 of the Domestic Partnership Act. The eight applicants also complain of a violation of their rights under Article 9, read together with Article 14 of the Convention, based on their belief in same-sex marriage and/or their desire to take part in legally recognised rites of marriage in accordance with their faith or philosophical or moral convictions.
QUESTIONS TO THE PARTIES
1. In relation to the complaint under Article 12 of the Convention, do the first seven applicants, and in particular the first, second, third, fifth and sixth applicants, have victim status within the meaning of Article 34 of the Convention?
2. Did the coming into force of section 53 of the Domestic Partnership Act violate the rights of the first seven applicants under Article 12 of the Convention, read alone or together with Article 14? Is the present case distinguishable from the Court’s existing case-law, which has repeatedly held that Article 12 of the Convention does not impose an obligation on Contracting States to grant a same-sex couple access to marriage (see, for example, Schalk and Kopf v. Austria, no. 30141/04, §§ 61-62, ECHR 2010; Hämäläinen v. Finland [GC], no. 37359/09, § 96, ECHR 2014; and Oliari and Others v. Italy, nos. 18766/11 and 36030/11, § 192, 21 July 2015), on the basis that same-sex marriage was legally recognised in Bermuda when section 53 came into force?
3. Are the applicants “victims” within the meaning of Article 34 of the Convention for the purposes of the complaint under Article 9 of the Convention read together with Article 14?
4. Has there been a violation of the applicants’ rights under Article 9 of the Convention, read together with Article 14? In the context of Article 14, was any discrimination experienced by the eighth applicant on the ground of “sexual orientation” or “religion”, as alleged by the applicants?
APPENDIX
List of applicants
Application no. 35043/22
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Roderick Alexander FERGUSON
1979
Bermudian/ British Overseas Territories
New York, USA
2.
Julia Jane Lily AIDOO-SALTUS
1963
Bermudian
Sandys, Bermuda
3.
Peter Chapin CARPENTER
1953
Bermudian
Pembroke, Bermuda
4.
D.D.
1988
Bermudian
Bermuda
5.
Gabby (formerly known as Maryellen) JACKSON
1967
Bermudian
Sandys, Bermuda
6.
David Arthur NORTHCOTT
1963
Bermudian/British
Smith’s,
Bermuda
7.
J.P.
1983
Grenadian
Bermuda
8.
Wesley Methodist Church of Bermuda
n/a
n/a
Hamilton,
Bermuda