Dr Barker has published extensively on same-sex marriage and is currently writing about the Bermuda Constitution.
Bermuda, a British Overseas Territory, began issuing marriage licences to same-sex couples after its Supreme Court held in May this year that failure to do so breached the Human Rights Act 1981. Today, the House of Assembly will vote on a Bill introduced by the government that would amend the Human Rights Act and replace same-sex marriage with a domestic partnership provision. It is expected to comfortably pass.
The Domestic Partnership Act will partially abolish same-sex marriage in Bermuda and create a three-tier system in which heterosexual couples can choose between marriage or domestic partnership, same-sex marriages that were enacted prior to this Bill coming into force will continue to exist, and future same-sex relationships can only be recognized through domestic partnership.
This situation is different from that in other jurisdictions that have prohibited same-sex marriages before they have taken place. Once the decision has been taken to abolish the right to marry of one group on the basis that another segment of the community disapproves of their marriage, how secure can other Bermudian married couples be? For example, according to the 2010 census, Catholicism is closely behind Anglicanism as the second most prominent religious group in Bermuda. Should married divorcees be concerned that they might be the next group to be relegated to domestic partnerships on the basis that their second marriage goes against the religious values of a large group of other Bermudians?
The campaign group Preserve Marriage, which has coordinated opposition to same-sex marriage, do not support the introduction of domestic partnerships: this provision is a political compromise that they see as an inevitable step towards same-sex marriage. This assertion appears at first glance to be difficult to substantiate given that in this case it is clearly a step away from same-sex marriage, but their position is that ‘separate but equal’ provisions would eventually be seen to be discriminatory. This is undoubtedly correct. There is absolutely no rationale for creating a separate legal provision that largely mirrors marriage other than to send a message that same-sex relationships are deserving of a lesser status than heterosexual relationships. It is no doubt particularly galling for LGBT Bermudians that this message is sent while rolling back from an equality that had already been enacted. It is also a situation that is very likely at some point in the future to be found to be contrary to the European Convention on Human Rights, to which Bermuda is subject. The European Court of Human Rights gives a wide ‘margin of appreciation’, in other words a certain discretion, to national governments in areas that are socially or politically contentious and on which there is no clear consensus between the member states. As such, it has so far declined to find that same-sex marriage is required under the Convention. However, as more European states recognize same-sex marriage, this margin will narrow and eventually the Court will find that allowing heterosexual but not same-sex couples to marry is discriminatory. At this point the UK will have a difficult decision to make: either overturn Bermuda’s Domestic Partnership Act through primary legislation from the UK Parliament, or be responsible for Bermuda’s lack of compliance with its international obligations under the Convention.
There is, however, an alternative that has not been considered in Bermuda and that could protect both religious freedom and equal treatment of same-sex 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 perform marriages only between those couples that meet their criteria, and there would be no discrimination in law between same-sex and different-sex couples who are all equally recognized as domestic partners, with marriage conferring no legal status for anyone.
This would clearly have been a radical proposition but if marriage can be removed from Bermudian same-sex couples and replaced with domestic partnerships, why not treat all Bermudians the same? It would have been an ironic ending to a story that began with a campaign to ‘preserve marriage’, but it would have also been a solution that avoided the need to carve out an exception to the Human Rights Act and would also have protected Bermuda from a future violation of the UK’s international obligations. Most importantly, it would have affirmed the equality of all Bermudians, whether gay or straight, religious or non-religious. It may also eventually be the only way to ‘preserve’ marriage as heterosexual.
And those (heterosexual) Bermudians who might object that their relationship may not now be recognized by other countries when they travel overseas may be reminded of the old saying: what’s good for the goose is good for the gander.