Can Same-Sex Marriage Be Revoked?: Ferguson and Others v The United Kingdom
This year marks the tenth anniversary of the introduction of same-sex marriage in England and Wales, but how secure are LGBT+ rights once they have been granted?
The last few years have seen a marked increase in hostility towards the LGBT+ community in this country, such that the ‘extensive and often virulent attacks on the rights of LGBTI people’ in the UK were noted alongside those in Hungary, Poland, the Russian Federation and Turkey in a 2021 report from the Council of Europe. In 2022 it was reported that the UK has continued its descent down ILGA-Europe’s ranking for LGBTQ+ rights to 14th place, after having been top in 2015; this year it slipped further to 17th place. It is against this broader context that, last month, the UK was notified that an application has been made to the European Court of Human Rights concerning the revocation of same-sex marriage in Bermuda, one of the UK’s overseas territories: Ferguson and Others v The United Kingdom (no.35043/22). As the signatory party to the Convention and the state responsible for Bermuda’s international relations, the UK is tasked with defending this revocation of a fundamental Convention right in Strasbourg.
This is not the first time that the UK has been the respondent state in these circumstances. It was a landmark 1978 judgment in a case from the Isle of Man, a UK crown dependency, which established the important principle that the Convention is a living instrument that must be interpreted in light of present-day conditions. Similarly, this challenge to the revocation of same-sex marriage in Bermuda could have significance far beyond the 20 square mile archipelago in the North Atlantic Ocean. Given the increasing attacks on LGBT+ rights in the UK and other parts of Europe, it is time to ask the Court whether and in what circumstances the ‘living tree’ can shrink. Just as it was necessary in 1978 to establish that the parameters of the Convention rights were not frozen in time at the moment of drafting, it is now necessary for there to be a clear and unambiguous articulation of a principle of non-retrogression in the Convention.
Same-sex marriage had been introduced in Bermuda in 2017 following a decision of the Bermuda Supreme Court that a refusal to issue marriage licenses to same-sex couples was discriminatory on the basis of sexual orientation contrary to Bermuda’s Human Rights Act 1981. However, following a general election the new government, purportedly to soothe tensions between ‘combatants’ on the issue within its own party (Bermuda Hansard, 8 December 2017, p.914) or to pander to a religious lobby as found by the Bermudian Court of Appeal, enacted the Domestic Partnership Act 2018. This Act revoked same-sex marriage and replaced it with a separate domestic partnership provision. Under the Bermuda Constitution, Royal Assent shall be reserved by the Governor if a Bill appears to interfere with the UK’s international obligations. This would be a highly unusual and controversial step, but it is one that was taken recently in relation to a Bill proposing to legalise marijuana before Royal Assent was ultimately refused. However, no reservation was made in relation to the revocation of same-sex marriage. Both the Bermuda and UK governments appeared to take the view that because the ECHR does not yet obligate states to introduce same-sex marriage, there would be no problem with revoking it once it was already an established right. As I argued in a 2020 article, this assumption is highly questionable. The existence of same-sex marriage as part of national law changes the terrain on which the Convention arguments will be made. Just as it would be a clear violation of Article 12 (the right to marry) to abolish legally-recognised marriage entirely and replace it with domestic partnerships for all couples, it must also be a violation of Art 12 and/or Article 14 (prohibition of discrimination) to abolish marriage for some couples based on their sexual orientation and replace it with a domestic partnership provision, once such marriages had been established according to national law.
This case also has another element that is different from previous Convention cases on same-sex marriage. The applicants here are 7 individuals and a Church, which performs legally recognised marriage ceremonies as part of the manifestation of its religious beliefs in the institution of marriage – the legal and religious elements of which are closely intertwined, possibly indivisible. For this Church, this belief in the institution of marriage includes same-sex marriage. In the domestic proceedings, the Bermuda Supreme Court and Court of Appeal had both found the revocation to be unconstitutional on the basis that it violated the right to manifest religious and non-religious beliefs, amongst other grounds. However, the Judicial Committee of the Privy Council in London, sitting as the final appellate court for Bermuda, upheld the Bermuda government’s appeal in a 4-1 decision. Lord Sales’ dissent in this case reflects the protections under Arts 14 and 9 of the Convention (right to freedom of thought, conscience and religion and prohibition of discrimination on those grounds). The state has a duty of neutrality and impartiality with regard to religious belief but in this case has revoked the ability of some individuals and religious bodies to manifest their belief in same-sex marriage because those who hold different religious and non-religious beliefs objected to them doing so. As Lord Sales notes, the revocation of same-sex marriage in Bermuda ‘fails to take seriously the state’s duty of neutrality in relation to matters of conscience, which is the foundation of a liberal, pluralist polity’. The failure to accord equal respect to groups with differing beliefs is compounded by ‘a historical background of stigmatisation, denigration and victimisation of gay people’. In contrast, those who believe that marriage must only be heterosexual have always been free to continue to hold and manifest that belief through their own religious observance and proselytising. There is no requirement to participate in same-sex marriage ceremonies.
Same-sex marriage is now available in the vast majority of OECD countries, on every continent including Antarctica, and across the vast majority of the geographical area of the Americas, where Bermuda is physically and culturally located. Each of the four nations of the UK plus 12 of the 19 overseas territories and crown dependencies also recognise same-sex marriage. Whilst the European Court of Human Rights has previously held that same-sex couples cannot yet demand that same-sex marriage is introduced, through this case we will find out whether, once it has been introduced in national law, same-sex marriage is a secure and permanent right or one that can be arbitrarily revoked with a change in government.
Professor Nicola Barker (School of Law and Social Justice, University of Liverpool) was one of the authors of the application submitted to the European Court of Human Rights in Ferguson and others v United Kingdom (no.35043/22).