Years of legal battles around same-sex marriage in Bermuda will come to a head 5,548kms away in London on 7 and 8 December this year.
And the result may help make same-sex marriage legal and strike down laws against gay sex in dozens of countries.
Some of those countries, including Jamaica, are currently among the world’s most dangerous places to be LGBT+. At the moment, Jamaica still criminalizes homosexuality. The penalty is 10 years hard labor, although the country rarely enforces it.
But by a quirk of colonial history, the Judicial Committee of the Privy Council in London is the final court of appeal for Jamaica and multiple other nations.
Moreover, campaigners are confident the strength of their legal argument for same-sex marriage will be hard for the Privy Council to resist.
The impact of its ruling will vary from country to country. But even in places where it doesn’t have the final word, the Privy Council’s ruling will prove a huge legal barrier to governments still banning same-sex marriage.
Final appeal for Bermuda
The Supreme Court of Bermuda made same-sex marriage legal in May 2017. It ruled in favor of Bermudian Winston Godwin and his Canadian fiancé, Greg DeRoche. They successfully argued that Bermuda breached their rights by refusing to allow them to wed.
In turn, others seized the opportunity to marry. In response, the government passed Bermuda’s Domestic Partnership Act in December 2017.
That upheld existing same-sex marriages since the court decision. But it refused any other couples the right to marry, offering them civil unions instead.
Naturally campaigners including OutBermuda said that was unconstitutional. They were proved right when Chief Justice, Ian Kawaley, ruled in their favour in May 2018. Moreover, the Bermuda Court of Appeal dismissed an appeal by the attorney general.
Now the Bermudan government is appealing the matter to its final court. And that’s how the case came to the Privy Council.
So the battle for the final say on same-sex marriage will be at The Middlesex Guildhall on Parliament Square, London. The building also houses the Supreme Court of the United Kingdom.
‘You cannot bar same-sex marriage’
The Privy Council will likely rule in the first part of 2021.
LGBT+ lawyer and Caribbean activist Maurice Tomlinson told GSN the case for same-sex marriage is strong.
In interpreting the law, the Privy Council will look at how other courts have handled the issue.
And fortunately, the Inter-American Court of Human Rights has already ruled in favor of marriage equality. As that is the highest court in the hemisphere, the Privy Council will likely take that ruling seriously.
Likewise, Tomlinson says courts in Canada and the US have made ‘very strong pronouncements that you cannot discriminate on sexual orientation and therefore you cannot bar same-sex marriage’.
By contrast, the Bermudan government will have to rely on a weaker, convoluted case. It’s lawyers may argue marriage is somehow a special, private or separate institution which doesn’t have to be equal.
However, assuming the Privy Council rules for equality, the effect on Bermuda will just be the tip of the iceberg.
That’s because the Privy Council is also the final court for multiple countries.
Tomlinson says: ‘The decision will be binding on the Bermudan government. But it will be incredibly persuasive for all the other British Overseas Territories.
‘In relation to the independent territories, it will also be persuasive, although it depends what each constitution says.’
For example, Jamaica’s constitution explicitly bans same-sex marriage. A mere court precedent can’t overrule that. But even there, it may help.
Tomlinson has been bringing court cases to strike down Jamaica’s sodomy law that bans gay sex and to introduce marriage equality.
He says: ‘One of the arguments the Jamaican government has made in defending the ban is that equal marriage is not recognized in courts across the world.
‘But it will undermine that argument if the highest court in the constitution – the Privy Council – as well as the highest court in the hemisphere – the Inter-American Court – recognizes it.’
He is already lobbying the Inter-American Commission on Human Rights on the issue. This will add political pressure to the legal pressure on Jamaica. The commission held a hearing on decrim in November and the final ruling is due in April.
Meanwhile, he has lodged an appeal in a local court in Jamaica which will hear the case on 9 June.
‘If LGBT+ people can marry they are entitled to have sex’
By this mechanism, Tomlinson says he and other campaigners have ‘sped up the timeline’ on bringing in LGBT+ equality.
And he says a ruling for same-sex marriage will also help with striking down the sodomy laws:
‘This decision will also add weight to the cases in St Vincent, Dominica and Barbados and Jamaica.
‘If LGBT people are entitled to marry they are certainly entitled to have sex.’
And while the Privy Council will impact English-speaking countries, the Inter-American Commission also has huge influence.
All of this means 2020 could be a breakthrough year.
Tomlinson says: ‘We are at a tipping point and these decisions are going to make it almost impossible to hang on to the anti-sodomy laws any longer. They are going to prove that LGBT people are entitled to full equality.’
The surprising reach of the Privy Council
The Judicial Committee of the Privy Council is the final court of appeal for these far-flung nations and territories:
Antigua and Barbuda
St Kitts and Nevis
St Vincent and the Grenadines
Trinidad and Tobago
British Overseas Territories
British Antarctic Territory
South Georgia and the South Sandwich Islands
British Indian Ocean Territory
Saint Helena, Ascension and Tristan da Cunha
British Virgin Islands
Turks and Caicos Islands
Guernsey (including Alderney and Sark)
Isle of Man
British Overseas Base Areas
Akrotiri and Dhekelia