Same-sex marriage is not recognised in Bermuda, but was legal for a period of five years between 2017 and 2022–except between 1 June 2018 and 23 November 2018 when a law banning same-sex marriage was in effect. Same-sex marriage first became legal on 5 May 2017, when the Supreme Court of Bermuda ruled that same-sex couples had a legal right to marry. However, a bill to ban same-sex marriage and establish domestic partnerships as a substitute was passed by the Parliament of Bermuda in December 2017 and went into effect on 1 June 2018.
In response to the renewed ban on same-sex marriage, a court challenge was filed opposing the domestic partnership law. On 6 June 2018, the Supreme Court struck down the parts of the law that banned same-sex marriages, but stayed the ruling while the government appealed to the Court of Appeal. The appeals court upheld the right of same-sex couples to marry when it handed down its ruling on 23 November 2018. The government challenged the Court of Appeal's ruling to the Judicial Committee of the Privy Council, which reversed the appeals court's finding on 14 March 2022, and banned same-sex marriage in Bermuda once again. Same-sex marriages performed before that date remain legally recognised. Polling suggests that a majority of Bermudians support the legal recognition of same-sex marriage.
Legal history
Background
The Bermudian Government first made clear in 2004 that it would not consider recognising civil unions or same-sex marriages. In May 2006, MP Renee Webb tabled a private member's bill seeking to add sexual orientation as prohibited ground of discrimination to the Human Rights Act 1981. However, the bill was dismissed when the Parliament of Bermuda refused to debate it. At the time, social attitudes were such that some gay and lesbian residents chose to emigrate—often to the United Kingdom, where Bermudians and other British Overseas Territories citizens have a right to reside—in order to live more openly. One emigrant noted that same-sex relationships had to be kept secret, with partners introduced only as "friends" and relationships between two Bermudians as being very difficult. Progress came in June 2013, when Parliament passed legislation prohibiting discrimination on the basis of sexual orientation under the Human Rights Act 1981. Although the same month, Premier Craig Cannonier stated that his government would not legalise same-sex marriage in Bermuda: "I can assure you that under my leadership this is not about same-sex marriage, and under my leadership that will not happen."
On 11 February 2016, Attorney General Trevor Moniz said that the government would debate a bill to create civil unions for same-sex couples, though he ruled out the legalisation of same-sex marriage.Civil union legislation plans unveiled On 29 February, the government announced that a referendum on same-sex marriage and civil unions was planned.Bermuda plans referendum on same-sex marriage On 12 March, Premier Michael Dunkley announced that the referendum would take place mid-to-late June 2016. The referendum was non-binding, and was described by Dunkley as "only a way to get some clarity on the issue". Voters were asked two questions: "Are you in favour of same-sex marriage in Bermuda?" and "Are you in favour of same-sex civil unions in Bermuda?" The referendum was held on 23 June 2016.Bermuda same-sex marriage referendum set for June 23 Jamaica Observer, 12 May 2016Referendum (Same Sex Relationships) Act 2016 Bermuda Laws OnlineReferendum (Same Sex Relationships) Notice 2016 Bermuda Laws Online Both proposals were rejected by 60–70% of voters though the referendum was legally invalid, as less than 50% of eligible voters turned out. An amendment to section 15 of the Matrimonial Causes Act 1974, which defined marriage as the union of "a man and a woman", was introduced to Parliament following the referendum. The amendment would have overridden the anti-discrimination provisions in the Human Rights Act 1981 and retain language stating that marriage was limited to "a man and a woman". On 8 July 2016, the House of Assembly passed the bill by 20 votes to 10, but on 21 July the Senate rejected the legislation by a 5–6 vote.Bermuda Senate narrowly rejects anti-marriage billSenate rejects Human Rights Act Amendment
In November 2015, the Supreme Court of Bermuda ruled that the same-sex partners of Bermuda residents are entitled to the same immigration rights as opposite-sex spouses, without being subject to immigration-related restrictions. While the government did not indicate whether it would appeal the decision, it requested a suspension of the ruling's implementation in order to assess its broader implications. These included potential impacts on laws governing "bankruptcy, estates, wills, succession, inheritance, health insurance, pensions, and social insurance". The ruling ultimately came into effect on 29 February 2016.
2017 Supreme Court ruling in Godwin In the aftermath of the June 2016 referendum, two same-sex couples indicated they would apply for marriage licenses and challenge the refusal in court. On 6 July, a male couple, Winston Godwin and Greg DeRoche, filed notice of their intent to marry with an accompanying letter from their attorney requesting that the banns be posted within two days. The letter went on to state that unless the registrar notified the parties within two days, proceedings would be initiated in the Supreme Court. On 8 July, the Registrar General's office rejected the application to publish the banns, which prompted the couple's attorney to file a writ asking the Supreme Court to determine if the refusal contravened provisions of the Human Rights Act. The case, Godwin and DeRoche v. Registrar General, was heard by acting Chief Justice Charles-Etta Simmons of the Supreme Court on 1–3 February 2017.
Judge Simmons issued her ruling in favour of same-sex marriage on 5 May 2017. She wrote that "on the facts, the applicants (Winston Godwin and his Canadian fiancé Greg DeRoche) were discriminated against on the basis of their sexual orientation when the Registrar refused to process their notice of intended marriage.... The applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act 1944 and a declaration that same-sex couples are entitled to be married under the Marriage Act 1944." The Rainbow Alliance issued a statement praising the ruling: "The ruling is a victory for all same-gender loving people in Bermuda [and] ensures that same-gender couples can enjoy the same legal protections as heterosexual spouses do". It was also welcomed by operators of several cruise lines with Bermuda-flagged ships, where marriage ceremonies are performed under Bermuda law. The group Preserve Marriage criticised the ruling as "an attack on traditional marriage [and] on Christian and other faith-based traditional values". The organisation, which intervened in the proceedings, and a separate group opposed to same-sex marriage, sought to appeal the decision to the full bench of the Supreme Court, but leave to appeal was not granted. Judge Simmons' ruling included a draft order giving effect to the judgement, but she heard from counsel on the precise terms of the final order before giving it effect. The final order, which included a requirement on the part of the government to pay the petitioners' legal costs, was published on 22 September 2017. On 9 May 2017, Minister of Home Affairs Patricia Gordon-Pamplin said that the government would not appeal the ruling. The Registrar General posted the first wedding banns for a same-sex couple on 17 May, and the first same-sex marriage ceremony was performed in Hamilton on 31 May 2017 for Julia Saltus and Judith Aidoo.
Domestic Partnership Act 2018
Passage and promulgation After the July 2017 elections, which resulted in the Progressive Labour Party (PLP) returning a comfortable majority of MPs in the House of Assembly, MP Wayne Furbert said he would introduce a bill banning same-sex marriage to the Parliament in September and that he expected the bill to pass. Furbert further stated that the bill would need to be passed by the Senate only if it were amended in the House. If passed in its current form, it would not need approval in the Senate. In addition, the government said that should Furbert's bill pass, it would draft civil union legislation granting same-sex couples rights equal to non-married different-sex couples. Several experts doubted the capacity of Furbert's bill to avoid Senate scrutiny, particularly if it were amended to make arrangements for existing same-sex marriages.
On 2 November 2017, the government introduced a bill to ban same-sex marriage and enact domestic partnerships as a substitute. Two weeks of public consultation were held in various locations. The bill was strongly criticised by human rights groups, the Human Rights Commission and the Rainbow Alliance, which called it "an embarrassment" and "disappointing". The law would provide domestic partners with many of the same rights as married couples, particularly in the areas of pensions, inheritance, health care, tax and immigration. The bill passed the House of Assembly by a 24–10 vote on 8 December 2017. It then passed the Senate by an 8–3 vote on 13 December. The provision of royal assent, usually a formality, was debated in the British Parliament and the subject of a lengthy review by Her Majesty's Government and Governor John Rankin. Foreign Secretary Boris Johnson received calls to withhold approval of the bill. Rankin ultimately provided assent to the bill on 7 February 2018, allowing the law to go into effect on a day to be appointed by the Minister of Home Affairs. A number of international politicians and human rights organisations criticised the change and argued that the move would damage the island's tourist industry.Gay MP says Bermuda's ban on same-sex marriage will damage Britain's reputation The Bermudian Tourism Authority expressed concerns that Bermuda would experience an economic fallout if the law went into effect.Bermuda repeals same-sex marriage
+ 8 December 2017 vote in the House of Assembly Party Voted for Voted against Absent (Did not vote) Progressive Labour Party – One Bermuda Alliance – Total 10 1
+ 13 December 2017 vote in the Senate Party Voted for Voted against Absent (Did not vote) Progressive Labour Party – – One Bermuda Alliance – – Independent – – Total 3 0
Bermuda's repeal of same-sex marriage received considerable international media coverage.International Media Report On Marriage Law Bernews, 8 February 2018 The Guardian and The New York Times reported that "Bermuda had become the first country to repeal same-sex marriage".Bermuda becomes first nation to legalize gay marriage, then repeal it The New York Times, 8 February 2018 The repeal was met with calls for a boycott on Twitter and other social media outlets.'Truly evil': Calls to boycott Bermuda for unprecedented repeal of same-sex marriage LGBT groups proposed challenging the new law in court as it "remove[d] an established fundamental human right". Lawyers in the Godwin case said that any further legal action would need to be heard in European courts.Pettingill says battle may be far from over On 28 February, the Minister of Home Affairs, Walter Roban, announced that the Domestic Partnership Act 2018 would take effect on 1 June 2018. Same-sex couples who wished to marry before this date had to apply for a marriage licence by 12 May. Marriages performed before this deadline would remain recognised under the new law. The commencement notice was issued on 9 April.
Court challenge