Attorney General for Bermuda v Roderick Ferguson and others (Bermuda)

The Constitution of Bermuda contains no free-standing prohibition on legislation enacted for a religious purpose. Constitutional validity depends on the text and effect of the law, not the purpose attributed to legislators, unless the Constitution provides otherwise. A legislative package must be considered as a whole where its provisions form part of a political compromise.

Freedom of conscience protects sincere beliefs and their manifestation, but does not generally impose a positive duty on the state to make its civil law accord with a belief about how society should be organised. Section 8 therefore did not require legal recognition of same-sex marriage. Section 12 protection against discrimination by creed concerns a system of beliefs and did not apply where exclusion was attributable to sex.

The respondents challenged section 53 of the Domestic Partnership Act 2018, which provided that a marriage was void unless the parties were respectively male and female. The Supreme Court of Bermuda held the provision unconstitutional under sections 8 and 12 of the Constitution. The Court of Appeal upheld the result, holding that section 53 had been enacted mainly for a religious purpose and contravened section 8.

The Attorney General appealed to the Privy Council. The respondents cross-appealed against the rejection of their section 12 case. The central questions were whether the Constitution invalidated legislation enacted for a religious purpose, whether section 53 hindered protected freedom of conscience, and whether a belief in legally recognised same-sex marriage constituted a creed for the purposes of section 12.

1. Appeal allowed; cross-appeal dismissed. The Board would advise that section 53 of the Domestic Partnership Act 2018 was not unconstitutional.
2. The Constitution confers plenary legislative authority, subject to its express and implied protections, but contains no self-standing secularism principle invalidating legislation enacted for a religious purpose. Section 8 focuses on whether a law hinders or interferes with enjoyment of freedom of conscience. If it has no such effect, the purpose attributed to legislators is immaterial. The generous approach required by Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 must nevertheless be derived from the constitutional language and cannot authorise the court to read in a prohibition which the text does not support.
3. The DPA had to be considered as a connected legislative package. It represented a political compromise intended to address the dispute over same-sex marriage and fulfil an electoral promise. Section 53 could not be isolated from the wider scheme. In any event, the evidence did not establish that the DPA was passed for a religious purpose.
4. Section 8 protects internal beliefs and their manifestation in worship, teaching, practice and observance. The respondents’ beliefs satisfied the modest threshold for protected religious or philosophical beliefs. But the state neither prevented them from holding, advocating or practising those beliefs nor imposed a positive duty to give them legal effect. Legal recognition of same-sex marriage was a matter for the legislature. The Board gave two alternative analyses: the belief could fall within section 8 without the absence of legal recognition constituting interference, or the belief could fall outside the protected category because the Constitution contains no protection against sexual-orientation discrimination and permits the HRA to be disapplied in this field.
5. The reasoning was consistent with Laramore [2017] UKPC 13, which treated hindrance as interference with freedom of conscience, but that case did not establish that legislative purpose alone determines constitutional validity. The Convention informed interpretation because it was an antecedent of section 8, but article 9 did not require formal legal recognition of same-sex marriage.
6. Section 12(3) protects against discrimination based on a person’s creed, meaning a system of religious or secular beliefs by which the person is described. The exclusion of same-sex couples from marriage was attributable to their being of the same sex, not to their creed. The section 12 challenge therefore failed.
7. Lord Sales dissented. He considered that section 8 protected a right of same-sex couples to marry and that refusal of legal recognition hindered their ability to manifest religious or ethical beliefs and breached the state’s duty of neutrality. He agreed with the majority on section 12.

• Privy Council: Appeal from the decisions below allowed; cross-appeal dismissed. The Board would advise that section 53 of the Domestic Partnership Act 2018 was valid.
• Court of Appeal for Bermuda: Appeal from the Chief Justice dismissed. Section 53 was held invalid because it had been enacted mainly for a religious purpose and contravened section 8 of the Constitution.
• Supreme Court of Bermuda: The respondents’ constitutional challenge succeeded. Chief Justice Kawaley held section 53 invalid under sections 8 and 12 of the Constitution.