Law should grant equality above all
The results of the June 23 referendum — where many Bermudians expressed opposition to same-sex marriage — have certainly sparked much debate about the future of same-sex marriage in Bermuda.
However, they are a fundamentally inappropriate way to determine how to legislate the issue. Because restricting access to marriage necessarily involves discrimination against a minority group, we must put aside our differences of opinion. We must agree to laws that grant equality above all else.
In his 1787 essay Federalist No 10, James Madison warned that in popular democracies, “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority”. Madison was a staunch advocate for the protection of the civil liberties of minorities and was concerned that strong majorities could overwhelm smaller minorities in popular votes.
If laws were made solely based on a popular vote, minorities would face oppression and the abrogation of their legally afforded human rights for the sole reason that they constitute a minority of voters.
Luckily, our Bermudian democracy has recognised the possibility of this “tyranny of the majority”.
We have established safeguards to prevent minority groups being trampled by the popular vote. These protections are enshrined in two of our most fundamental legal documents: the Bermuda Constitution Order 1968 and the Human Rights Act 1981. These documents protect the personal liberties of all Bermudians, regardless of race, ethnicity, disability, religion, creed, marital status, sex and sexual orientation. All of these groups enjoy specific protection due to their status as vulnerable minority groups.
Unfortunately, it seems that when it comes to the issue of same-sex marriage, many Bermudians have forgotten that these protections exist.
Despite the insistences of Wayne Furbert, Craig Cannonier (see The Royal Gazette article “Bill stops same-sex marriage” from July 9, 2016) and the Preserve Marriage group, it is not righteous or just for our legal system to discriminate against LGBTQ Bermudians just because the majority of referendum respondents opposed same-sex marriage.
In fact, the checks and balances of our legal system exist to prevent exactly these types of situations.
Laws like the one introduced by Mr Furbert endanger the constitutionally entitled freedoms of liberty, protection of the law and freedom from discrimination.
To restrict LGBTQ Bermudians from enjoying marriage and its legal benefits is a clear example of the tyranny of the majority. Laws that do so violate the protections intended to prevent this kind of discrimination. Laws based on the results of the non-binding, unanswered referendum are based only on numbers and do not represent the just and equal society described by the Human Rights Act and the Constitution.
If we want to live in a society based on our shared democratic values of secular rightness and excellence to each other, we must put our opinions and ideologies aside.
We must choose laws that protect the rights of not just the majority of Bermudians, but of all Bermudians.
This is not to say that you cannot personally have reservations towards same-sex marriage. At the end of the day, we are all entitled to hold our own opinions about this issue. Indeed, as Bermudians, our right to express these opinions is protected by the very same documents that also protect our LGBTQ compatriots’ right to marry. It is undeniable that many Bermudians oppose same-sex marriage.
The results of the referendum confirmed this. But, whether you support or oppose same-sex marriage, our legal system prevents these opinions from interfering in the lives of others and in the governance of a just and equal society. Those who oppose same-sex marriage need to look past their opinions and recognise that LGBTQ Bermudians are entitled to their full rights.
The day will soon come when all Bermudians are truly equal before the law and can marry whomever they want without fear of legislated discrimination.
When that day arrives, no matter our individual positions on same-sex marriage, we would all do well to heed the warning of James Madison and choose laws based not on the opinion of the majority, but on the rules of justice and the protection of the rights of all our fellow Bermudians.