Why Bermuda’s ban on same-sex marriage will not live happily ever after

Why Bermuda’s ban on same-sex marriage will not live happily ever after

For same-sex couples in Bermuda, the chance to marry was short-lived. In May 2017, it was allowed. Now, just seven months later, politicians have effectively abolished it.

It is the first time anywhere in the world that same-sex marriage has been abolished after weddings have already taken place. (California attempted to do so following a referendum but this was overturned on equal protection grounds by the US federal Courts.) Existing same-sex marriages in Bermuda will continue to be legally valid, creating a curious situation in the socially conservative British Overseas Territory.

Instead of “preserving marriage” as a relationship enjoyed exclusively between a man and a woman as its proponents wanted, the Domestic Partnership Act 2017 brings a three-tier system to Bermuda.

Heterosexuals can choose between marriage or the new domestic partnership status. Same-sex couples who married between May and December 2017 will continue to be married. Domestic partnership is the only option that will be available for same-sex relationships after the act takes effect.

The ending of same-sex marriage in Bermuda was driven largely by a campaigning group called Preserve Marriage. It is ironic then, that a group with this name is now responsible for the partial abolition of the institution.

In order to abolish same-sex marriage, Bermuda will carve out an exception to the Human Rights Act. This will be the second exception made to the Human Rights Act by the government in only five months in office (the first being in relation to immigration), following Supreme Court judgements that have gone against government policy. It is a situation that raises important questions about the effectiveness of Bermuda’s human rights provisions in protecting unpopular minorities.

A decision has been taken to abolish one group’s right to marry on the basis that another segment of the community disapproves of it. So how secure should other Bermudian married couples be? Should married divorcees be concerned that they might be the next group relegated to domestic partnership status because their second marriage goes against the religious values of other Bermudians?

The current situation is also likely to be deemed a contravention of the European Convention on Human Rights (to which Bermuda is subject) at some point in the future.

The European Court of Human Rights allows a certain margin of discretion in areas that are socially or politically contentious – and on which there is no clear consensus between member states. As such, it has so far declined to find that same-sex marriage is a convention requirement. But as more European states recognise same-sex marriage, this margin will narrow. Eventually the court will find that allowing heterosexual but not same-sex couples to marry is discriminatory.

A line in the sand

At this point the UK will have a difficult decision to make. Either it overturns Bermuda’s Domestic Partnership Act through primary legislation from the UK parliament, or it is responsible for Bermuda’s lack of compliance with its international obligations.

Would you like a 2017 wedding or a 2018 domestic partnership? Shutterstock

There is, however, an alternative that could protect both religious freedom and equal treatment of relationships: abolish the civil status of marriage entirely and replace it with domestic partnership for everyone.

This would allow individual religious groups in Bermuda the freedom to define marriage in accordance with their own religious beliefs, and to conduct marriages only between those couples that meet their criteria. There would be no discrimination in civil law between same-sex and different-sex couples who are all equally recognised as domestic partners, with marriage conferring no legal status for anyone.

If marriage can be removed from Bermudian same-sex couples and replaced with domestic partnerships, why not treat all Bermudians the same?

This would be an ironic ending to a story that began with a campaign to “preserve marriage”. But it would also be a pragmatic solution that avoids the need to carve out an exception to the Human Rights Act. Most importantly though, it would affirm the equality of all Bermudians – gay and straight, religious and non-religious.

Become a friend of The Conversation with a tax-deductible contribution today.