Jurisprudence

Bermuda Bends Back the Arc

The territory’s abrupt repeal of marriage equality proves there’s nothing inevitable about civil rights.

Photo illustration: an LGBTQ pride flag is broken up by the Bermuda territory flag. Photo illustration by Thinkstock and Drew Angerer/Getty Images.
Photo illustration by Thinkstock and Drew Angerer/Getty Images.

Nine months ago, the Supreme Court of Bermuda struck down the British territory’s prohibition on same-sex marriage, ordering the government to license these marriages on equal terms with opposite-sex unions. On Wednesday, the government overturned the court’s ruling, imposing a new ban on same-sex marriage that relegates gay couples to watered-down “domestic partnerships.” The swift abolition of marriage equality in Bermuda marks an unprecedented setback for LGBTQ rights, one that will have immediate international ramifications. It’s also a timely reminder, for Americans especially, that there is nothing inherently permanent about civil liberties: The rights of minorities are only as strong as the institutions that protect them.

Like the United States, Bermuda attained marriage equality through a legal challenge to a law that limited marriage to opposite-sex couples. In 2016, Winston Godwin and Greg DeRoche applied for a marriage license in the territory and were denied because they were both men. They sued under the territory’s expansive Human Rights Act, which bars discrimination “in the supply of any … services” on the basis of sexual orientation. In May 2017, the Supreme Court ruled that marriage licensing qualifies as a “service” covered by the act, and that rejecting gay couples’ applications constitutes sexual orientation discrimination. The court directed the territorial government to begin providing equal marriage licenses to all couples, without regard to sex or sexual orientation.

The ruling spurred an immediate outcry among religious conservatives, who pointed to a 2016 referendum in which 69 percent of voters opposed same-sex marriage and 63 percent opposed even civil unions for same-sex couples. Although the referendum was nonbinding—and invalidated altogether due to low turnout—legislators cited it as justification to overrule the court. American anti-LGBTQ groups like the National Organization for Marriage also lobbied parliament to outlaw same-sex marriage once again.

In December, Bermuda’s Parliament responded by easily passing the Domestic Partnerships Act. The law strips same-sex couples of marriage rights while creating “domestic partnerships” that provide a limited set of rights and are open to all couples, gay and straight. Gov. John Rankin approved the bill on Wednesday, noting that same-sex marriages licensed before its passage will remain valid. (The United Kingdom’s Foreign Secretary Boris Johnson could have blocked the law but chose not to.)

The Rainbow Alliance of Bermuda, the territory’s leading LGBTQ rights group, promptly denounced the bill, declaring that it creates “a ‘watered down’ version of rights, leading to a separate-but-equal status under the law” that turns gay couples into “second-class citizens.” Bermuda’s tourism board lobbied against the act, informing parliament that the measure would cause “serious reputational damage” and “lost tourism business.” (The island’s economy depends upon tourism revenue, and visitor spending rose to $431 million in 2017.) The board added that many companies and “the overwhelming majority of the younger visitors” support marriage equality, warning of a financial fallout similar to those experienced by Indiana after that state’s passage of the Religious Freedom Restoration Act and North Carolina after it passed its notorious “bathroom bill.”

The financial impact of the new law, however, extends far beyond Bermuda itself. That’s because a significant number of cruise ships are registered in Bermuda and can only conduct marriages at sea in accordance with the territory’s laws. Cunard, Princess, and P&O Cruises all rolled out packages for same-sex couples following the Bermuda Supreme Court’s decision, urging them to marry on their ships. Now that same-sex marriage has been declared illegal, both P&O and Princess are working to cancel and refund packages purchased by same-sex couples who had hoped to marry aboard their vessels. Bermuda’s repeal of same-sex marriage may push more cruise lines to register in Malta, a famously LGBTQ-friendly country with full marriage equality. (Celebrity already registers its ships there and hosted the first known same-sex marriage at sea in January.)

Still, the primary burden of the new law falls on Bermuda’s robust LGBTQ community, which has made huge strides over the last decade. As the LGBTQ nonprofit OUTBermuda noted on Friday, the territory is generally quite progressive on the rights of sexual minorities. Its Human Rights Act bars anti-gay discrimination in virtually all walks of life. Its immigration laws also treat Bermudians’ noncitizen same-sex partners equally with regard to visas and work permits, and it allows same-sex couples to adopt children together, whether they’re married or not. Bermuda law has been moving toward greater tolerance of LGBTQ people for years; the repeal of marriage equality defies that trend.

It also comes at a contentious time for marriage equality throughout the Americas. In January, the Inter-American Court of Human Rights ruled Costa Rica must legalize same-sex marriage under the American Convention on Human Rights. Its decision has roiled the country’s ongoing presidential election, with leading candidates condemning the ruling as an immoral overreach. In theory, the court’s decision is also binding on the 19 other countries in the Caribbean and Latin America that have accepted its jurisdiction—but many of their governments may refuse to comply with the court’s order. (International human rights courts do not have many tools to mandate compliance.)

Bermuda has ties with several of these countries through CARICOM, a regional organization of countries and territories. Its reversal of same-sex marriage can only embolden them to buck the Inter-American Court of Human Rights’ ruling and maintain their anti-gay marriage laws. The new ban has certainly emboldened anti-LGBTQ activists in the United States. Brian Brown, president of the National Organization for Marriage, issued a fundraising letter on Friday touting the group’s “significant” role in restoring Bermuda’s same-sex marriage ban. Brown cited Bermuda as proof that marriage equality can still be repealed in the United States.

He is absolutely correct. The U.S. Supreme Court legalized marriage equality by a 5–4 vote in 2015. Since then, conservative judges in Texas and Arkansas have attempted to downgrade same-sex marriages, denying gay couples equal spousal benefits and parenting rights. Justice Neil Gorsuch has already signaled his eagerness to roll back marriage rights for same-sex couples. Nationwide same-sex marriage may be one vote away from oblivion.

Indeed, Bermuda illustrates one way that the U.S. Supreme Court could overturn same-sex marriage in the future. Because the island is bound by the European Court of Human Rights, it must recognize same-sex unions to some degree. It has done so by creating “skim milk” partnerships with some, but not all, of the rights of marriage. American courts could do the same, purporting to respect gays’ equal dignity while granting them a restricted set of rights. Gorsuch would certainly support such a move.

Mark Pettingill, the Bermuda attorney who challenged the first same-sex marriage ban, has indicated he might sue to restore equal marriage for gay couples. But the Bermuda Supreme Court may view the government’s creation of domestic partnerships as a satisfactory compromise, particularly in light of the backlash its first ruling provoked. The territory’s marriage ban appears likely to remain law for the foreseeable future, a bleak reminder that equality is neither inevitable nor irreversible. Civil rights activists often proclaim that the moral arc of the universe bends toward justice. Bermuda just proved it can also be bent back.