Changing the law on same-sex marriage could open the door for “multiple partner marriages” on the island, lawyer Delroy Duncan told a packed Supreme Court yesterday.
Mr Duncan, representing the charity Preserve Marriage, which opposes same-sex marriage and civil unions, said: “I say this not mockingly or jokingly.”
He noted that four Supreme Court justices in the United States had raised such concerns when same-sex marriage was made legal there.
“We have to ask ourselves whether this legislation is permissive of such marriages or whether or not what you are being asked to do could open the door to multiple partner marriages.”
He said the common-law definition of marriage was that it was between a man and a woman, and the Registrar-General had to judge each marriage application in that context.
Mr Duncan was speaking on the third day of a case brought by Bermudian Winston Godwin and his Canadian fiancé, Greg DeRoche.
The couple are fighting for the right to wed on the island and claim their human rights have been breached by the Registrar’s refusal to post their marriage banns.
They are seeking an order from the Supreme Court to compel the Registrar to post their marriage banns, as well as issue a declaration that same-sex couples are entitled to wed here.
The civil proceedings concluded yesterday, with Puisn Judge Charles-Etta Simmons expected to deliver her ruling within the next six weeks.
Mr Duncan started the day by arguing Parliament must decide on the issue of same-sex
marriage “through the ballot box”.
He said the Bermuda Supreme Court was being asked to become only the second court in the world — after the United States — to decide the matter through the courts, rather than the legislature.
“There is no doubt that this is a great and important moment in the history of this country,” he said.
“There is no doubt that we need to grapple with the issues in this case with compassion, fairness and understanding for both sides of the aisle.”
He said his clients held no “ill will” for members of the same-sex community and were intervening in the case owing to strongly held beliefs on the meaning of marriage.
“The court is being asked to redefine marriage for the purposes of those who seek same-sex marriage,” Mr Duncan said. “This court is facing a cultural challenge of monumental proportions. That challenge has reared its head in the guise of this application.”
He cited Bermuda’s Caribbean roots and said a “cultural clash” was at the heart of the marriage equality debate.
Mr Duncan cautioned that there would be “no reason” why same-sex couples could not request a religious wedding if the judge amended the legislation to make such unions legal, questioning whether churches would have legal protection allowing them to refuse such requests.
Mr Duncan said the law on this issue needed to be developed in an orderly way — by legislators, rather than “piecemeal” in the courts — to “ensure that the protection is upfront for the religious community”.
The couple’s case hinges, in part, on the Human Rights Act prohibiting discrimination in the provision of goods and services on the grounds of sexual orientation.
The plaintiffs say the Registrar’s marriage duties constitute a service, as defined by the Act, while the Government has argued that not to be the case.
Mr Duncan said that the Registrar, in making a determination on marriage, was carrying out a function that only a government official could do.
He questioned if the court would have the power to fulfil the plaintiff’s request, saying that while allowing same-sex and unmarried couples to adopt required a simple striking out of marriage, allowing same-sex marriage would require more comprehensive changes in the law.
He also took aim at the Human Rights Commission’s comparison of same-sex marriage to interracial marriage, saying that some found the comparison offensive.
Responding, lawyer Mark Pettingill, representing the plaintiffs, said that Mr Duncan had repeatedly “picked the plums from the duff” by relying on dissenting opinions in his arguments rather than those in the majority.
He argued that the rights of a same-sex couple to marry would not interfere with the rights of people to practise their religion, saying the two can and should coexist.
The courtroom at the Dame Lois Browne-Evans building was packed to capacity, with members of the public having to sit in areas normally reserved for jurors, witnesses and the media.
Those watching the case included Mr Godwin, Opposition MPs Wayne Furbert and Kim Wilson, and gay rights activist Mark Anderson.
The Government is represented by Deputy Solicitor-General Shakira Dill-Francois. Preserve Marriage is an intervener in the case, as is the Human Rights Commission, represented by Rod Attride-Stirling.
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