Bermuda Court Rules for Marriage Equality

“ … I hold that: The common law definition of marriage, that marriage is the voluntary union for life of one man and one woman, and its reflection in the Marriage Act ... are inconsistent with the provisions ... of the HRA [Human Rights Act] as they constitute deliberate different treatment on the basis of sexual orientation. In so doing the common law discriminates against same-sex couples by excluding them from marriage and more broadly speaking the institution of marriage.


The court examined the common law definition of marriage through the broad scope of the HRA. That scope encompasses and reflects the changing values in the modern democracy that Bermuda is. Those changing values are reflected in decisions that have emanated from the Supreme Court. The courts have struck down legislation that discriminated against a same-sex male couple from adopting a child. Further it struck down immigration legislation that treated a non-Bermudian same-sex partner of a Bermudian differently from a non-Bermudian opposite-sex from a partner of a Bermudian regarding a classification of immigration status. Against the legal, social and cultural back drop of changing attitudes regarding same-sex relationship 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 21^st century.

… The common law is by definition judge made law. As such it is a creature of change... “the common law does not remain static. Its very essence is that it is able to grow to meet the expanding needs of society.” On this basis, I think that it is apt that the Court should develop the common law by giving effect to the will of Parliament as expressed in the HRA... I believe that as a matter of internal and external cohesion and legal certainty it would be appropriate for the Court to remedy those sections and grant appropriate declaratory relief along the lines of those drafted below subject to hearing counsel on the precise terms of the final Order to be drawn up to give effect to the present Judgment...

The Applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act; and

A Declaration that same-sex couples are entitled to be married under the Marriage Act 1944.

I include below a draft regarding other Declarations and possible reformulations of relevant sections of the Marriage Act and Matrimonial Causes Act...

The definition of marriage to be inoperative to the extent that it contains the term “one man and one woman” and reformulated to read “the voluntary union for life of two persons to the exclusion of all others... "

Charles-Etta Simmons, PJ, Supreme Court of Bermuda, May 5, 2017.


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