Bermuda ban on same-sex marriage is constitutional, rules London court

Authorities in Bermuda argue domestic partnerships provide the same rights as marriage

File: A gay campaigner waves the rainbow flag during a rally outside the houses of parliament (AFP via Getty Images)

A London tribunal on Monday upheld the ban on same-sex marriages in Bermuda as constitutional, in a major setback for LGBT+ rights in the British overseas territory.

London's Privy Council, the highest court of appeal for British overseas territories, sided with the Bermuda government by ruling that the constitution does not require the state to recognise same-sex marriages.

The tribunal overturned a 2018 decision by Bermuda’s top court, which ruled that the ban on same-sex marriages under the Domestic Partnership Act was unconstitutional. According to the law, same-sex couples are allowed to form partnerships but are prohibited from marriage.

“No restriction is placed on the worship, teaching, practice and observance of the respondents which manifests their belief in the validity of same-sex marriage. The protection of a ‘practice’ does not extend to a requirement that the state give legal recognition to a marriage celebrated in accordance with that practice,” Lord Hodge and Lady Arden said in a written judgement.

“Our supporters often say ‘love wins’. This time it didn’t,” Roderick Ferguson, lead co-plaintiff in the legal case against the law, said in a statement by LGBT+ advocacy group OUTBermuda.

“Our work as a society is not done until everyone’s humanity is recognised both in law and in life,” the statement read.

OUTBermuda called on the government to clarify how it will treat same-sex marriages that had been lawfully performed since 2017. Britain had legalised marriage equality in 2014, which was followed by the self-governing top court of Bermuda three years later.

Authorities in the socially conservative island with a population of 60,000 people have argued that domestic partnerships provide the same rights as marriage.

“The government is pleased with the outcome of the appeal. The government will now take time to consider the full judgment and its impact,” attorney general and minister of legal affairs Kathy Simmons said in a statement.

Separately, the British tribunal ruled that there was no right to same-sex marriage under the constitution of the Cayman Islands.

The Cayman Islands’ case was taken to the Privy Council after Chantelle Day and Vickie Bodden Bush were denied a marriage license in 2018. The couple reportedly moved court in March 2019 and the Cayman Grand Court ruled in their favour after stating that the denial violated the law.

Months later, however, a local appeals court overturned the decision, stating that the constitution doesn't allow for same-sex marriage. The court ordered the government to provide the couple with a legal status equivalent to marriage, which according to their lawyer, didn't happen.