OBA under fire over same-sex marriage
One Bermuda Alliance backbencher Mark Pettingill says his party’s plan to outlaw same-sex marriage is “very disconcerting” and may breach international human rights law.
The MP and lawyer, who is representing a couple seeking to wed on the island, was responding to community minister Patricia Gordon-Pamplin’s pledge last week to change the law so the Matrimonial Causes Act trumps the Human Rights Act.
At present, the HRC Act has primacy over all other legislation and bans the “withholding of goods, facilities or services” because of a person’s sexual orientation.
A “carve-out clause” proposed by the Bermuda Government would remove that supremacy in relation to section 15 of the Matrimonial Causes Act, which says a marriage is void if the parties are not male and female.
Mr Pettingill told The Royal Gazette: “The idea of a provision which overrides the Human Rights Act is candidly very disconcerting and does not in my view accord with an international human rights position.”
He is representing Bermudian Ijumo Hayward and his American partner Clarence Williams, who gave notice to the Registrar General of their intended marriage on December 1.
Mr Pettingill warned in a covering letter with the couple’s application that if the notice was not published within three days, in accordance with the Marriage Act 1944, they would take the matter to the Supreme Court.
Notice of the marriage has not been posted and Mr Pettingill has yet to seek an order of mandamus which he claims, if issued, would require Mr Pennyman to perform his statutory duties.
Mr Pettingill said yesterday: “We have currently put on hold any application to the court on the basis of correspondence from the Attorney-General’s Chambers, that they were seeking a further opinion on the subject. This does seem somewhat at odds with recent public statements [from the OBA Government], which is obviously concerning.”
Mr Hayward said he needed to discuss what to do next with Mr Pettingill, particularly regarding whether to seek a court order before the amendment to the law is approved.
The photographer, who lives in Georgia, said the Government’s plan to remove the supremacy of the HRC Act in relation to marriage was “completely discriminatory”.
“If it goes through, then I will be willing to pursue this further to Europe, which plays a part in how Bermuda runs its laws,” he said, adding: “[I will do that] based on how far my legal team wants to go.”
Mr Pettingill is the third OBA MP in recent weeks to break rank on a controversial topic.
Junior home affairs minister Sylvan Richards has also spoken out on the same-sex marriage issue, insisting a referendum should be held.
And Leah Scott, the Junior Minister of Education, has suggested government move more cautiously on granting permanent residency and status to long-term residents of the Island.
Bermuda, as a British Overseas Territory, is bound by international law, through the UK, and government has to adhere to the European Convention on Human Rights.
Article 12 of the convention gives people the right to marry and has been used to challenge the law regarding same-sex unions.
The European Court of Human Rights recently ruled in the case of Oliari and others vs Italy that the legal recognition of gay unions was a human right.
The Bermuda Government has said it will introduce civil union legislation in order to meet its obligation under the convention, following that decision.
But same-sex marriage opponents Preserve Marriage claimed on Wednesday that introducing civil unions wasn't necessary to comply with how the European Court says national governments should best interpret European law.
A press release from the pressure group, which wants a referendum on the issue, said the court hadn't stated that same-sex marriage or civil union legislation must be enacted to make a country compliant with its human rights obligations.
It said the ruling in the Oliari case “did not place urgency on implementing civil unions; rather it placed an urgency on assessing the interests of the people”.
The press release went on: “In Oliari, the European Court of Human Rights accused the Italian Government of failing to obtain the “prevailing community interest” of its citizens in order to balance the majority public interest against what was asked in regard to same-sex benefits.
“In other words, the state — Italy in the case of Oliari — had a responsibility to properly assess the desires of the people and to use that information to enact legislation to enable it to comply with its human rights obligations on this issue.
“The European Court has recognised a referendum as an acceptable way to assess the community interest.”
Edward Rance, a Bermudian living in London, contradicted Preserve Marriage's statement last night, describing the press release as “factually incorrect”.
“The Italian state in Oliari was found to have a positive obligation to provide a legal framework for same-sex relationship to be recognised,” he said. “This was an obligation to legislate, not an obligation to hold a referendum.
“The court said at paragraph 185 in Oliari that: 'the court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.'
“I fail to see how one can take seriously the demands of a group that publishes either recklessly or deliberately misleading bulletins.”
