Again putting the cart before the horse
What has been largely if not totally overlooked in the wake of the draft consultation Bill that home affairs minister Walton Brown unveiled last week is the impact that it may have on unmarried heterosexuals.
Same-sex marriage proponents are justified in being outraged over what appears to be the seed for an about-turn from an historic court ruling in May, but there is a bigger picture here that, once all the bickering, name-calling and fighting subsides could benefit the country as a whole.
Brown, having been held up as a sort of patron saint when in the minority of MPs who voted against a Bill that would outlaw same-sex marriage a mere 16 months ago, now knows what it feels like to be battered from pillar to post on the grounds of morality.
While the lesbian, gay, bisexual, transgender and queer community is in a very small minority in Bermuda, support for its cause is swelling locally and pressures from near and far are mounting — to the extent that an element from within seems only too willing to sabotage the island’s prospects as a tourist destination of choice and a place to do business by inflicting serious reputational harm.
Why we are at this point now can be put squarely at the feet of a group of politicians who as elected lawmakers lacked the intestinal fortitude and the vision to appreciate certain inevitabilities.
The most significant of which is that we must do whatever we can to see that all citizens of Bermuda are treated equally in the eyes of the law.
The inability or failure to see that civil union legislation, which is what the proposed Domestic Partnership Act 2017 is in all but name, was the least that should be actioned by way of honouring responsibilities in relation to human rights is proof positive that our Titanic would still have hit that iceberg were we given the chance to rewrite history. Even in these times of otherworldly progress.
The right to marry is a human right. But as far as the European Convention on Human Rights is concerned, this right applies only to opposite-sex couples. Numerous challenges have been made through the European Court of Human Rights to broaden the interpretation of Article 12, but thus far it has remained unchanged from: “Right to marry. Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right”.
The term “national laws” is within the purview of our legislature and, to put it bluntly, they dropped the ball.
They were given a ball of adhesive texture by Chief Justice Ian Kawaley, who — after his ruling in the Bermuda Bred case in November 2015 — made it eminently clear that something had to change in relation to rights for same-sex couples.
Then somehow, between that period and June 2016, they conspired to drop the ball.
During an eight-month-long period of confusion that ended with parliamentary inaction, we were treated to noise aplenty from a variety of groups. Chief among them was Preserve Marriage Bermuda, an organisation formed not because of the island’s divorce epidemic but in response to fellow Bermudians of the same sex wishing to marry. Hypocrisy much?
On the other side of the argument, we had the supporters of the likes of Rainbow Alliance and OutBermuda with their message of “love wins” while labelling opponents as bigots, homophobes and Bible-thumpers. Hypocrisy much?
The social-media elements and those who have appointed themselves as leaders for the respective causes have been far, far worse.
We also had the Government’s non-binding referendum, which was seen as risible and an exercise in extremely poor judgment. It is only fitting that the result was invalidated by the prescribed vote count not being reached — to borrow a line from Forrest Gump, “stupid is as stupid does”.
With the aforementioned noise put into a vacuum, it came as no real surprise in May when Puisne Judge Charles-Etta Simmons ruled against the Registrar-General in the case v Godwin and DeRoche — not that they be married but that their marriage banns may be published — paving the way for the first gay marriage to be held on the island.
Their point made, Bermudian Winston Godwin and Greg DeRoche, from Canada, spirited off to the latter’s homeland to get married, leaving the door open to Bermudian Julia Saltus and Ghanaian-American Judith Aido to make history at the end of May, followed in September by Australian residents Bruce Whayman, a Bermudian, and Roland Maertens.
In her ruling, the puisne judge set out drafts for how the Marriage Act and the Matrimonial Causes Act could be amended to accommodate same-sex marriage, but it is notable that such reformulation has yet to happen.
In the interim, we have had a General Election, a new party in government and a new Minister of Home Affairs, who has moved expeditiously to complete in a few short months what the previous legislature failed to accomplish since the same-sex marriage movement began to gain traction in 2014.
“Cart before the horse”, “Horse bolted, barn door closed” — call it what you will. The crux of the matter is that the draft Bill gives gays absolutely everything they want, with all the trimmings that are conferred to married heterosexual couples, but significantly not in the physical name of “marriage”.
Not too much truck can be had with the proclamation that Bermuda may become the first country to “re-ban” same-sex marriage, for it was never banned in the first place. It has never been on our books.
Where Bermuda did create history, though, is in becoming the only country whose population was largely against same-sex marriage — a sideways glance towards that invalid referendum, again, where those who voted came down 68-32 against — setting the table to make it legal.
Brown’s draft Bill presents a compromise that the LGBTQ community would have bitten off your arm for had it been offered 20 years ago — ten or five years, even. But the “victory” is bittersweet in present day because precedent has been set with Godwin-DeRoche, Saltus-Aido and Whayman-Maertens.
The issue is whether marriage in all but name — remember that Preserve Marriage argued vociferously against civil unions, but not a peep has been heard from the group on this Bill — is enough for them not to drag the issue of legislation trumping human rights through the courts yet again.
And that has overshadowed arguably the greatest development of all through this draft Bill: unmarried people of all sexual orientation gaining the right to be married in everything but name.
In effectively extending civil unions to heterosexuals, the scope for growing our population — hence, growing the economy — may be exponentially greater than had that right been made possible for gays alone.
It potentially lessens the role of the Church in “marriages”, but if truth be told, many have used religion for expedience during the time of weddings and are rarely seen again, but for more weddings — and funerals.
We do know how to make for ourselves a right mess in this country, don’t we?
And we will know for sure tonight that our capacity for shenanigans will have come full circle should a town hall meeting to launch a controversial initiative — this time hosted by Walton Brown, not Michael Fahy — be hounded into submission and withdrawal by repeated choruses of “No! No! No!”
Oh, the irony.
UPDATE: this editorial has been amended to make clear that it has been supporters of the Rainbow Alliance of Bermuda and OutBermuda who have used the terms “bigots”, “homophobes” and “Bible-thumpers” in their criticisms of opponents of same-sex marriage, and not the organisations themselves. We apologise for the implication.
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