Senators may get the chance to make or break Wayne Furbert’s Bill to reverse the legalisation of gay marriage, according to lawyers interested in the draft law.
Mark Pettingill and Rod Attride-Stirling, who argued the case that led to same-sex marriage becoming legal, told The Royal Gazette it was not certain the Bill could be presented to the Governor for assent without the approval of Senate.
A constitutional technicality may mean it has to get permission from the island’s 11 senators, according to Mr Pettingill, while Mr Attride-Stirling said any amendments to the original Bill would also require it to go back before Senate.
Mr Pettingill said it would be a conscience vote for the five Progressive Labour Party and three One Bermuda Alliance senators, while the three independents would “have to look honestly at the human rights law”.
He added: “It’s not a shoo-in. It’s not a PLP Bill.”
Mr Furbert’s Private Members’ Bill was first passed in the House of Assembly in July last year, but was rejected in Senate by six votes to five.
It was retabled in the next session of Parliament, but was not debated by MPs before Parliament was dissolved three months ago.
Section 38 (2) of the Bermuda Constitution allows Bills passed by the House of Assembly in “two successive sessions” to be presented to the Governor for assent, even if rejected by the Senate in each of those sessions.
But Mr Pettingill claimed government backbencher Mr Furbert could no longer benefit from that constitutional clause. The former attorney-general said: “The Constitution refers to two successive sessions of the House. I think on any reading of it, it is arguable that this is the third successive session.
“The Bill originally passed on July 8, 2016, so that would be the first session in which it was laid. The second session, therefore, would be the session which ended in June this year. The current session would be the third.
“The Bill is bound to go back to the Senate. From the time he first laid the Bill, we are now into the third successive session.”
The former OBA politician added: “Were the Speaker to not really look very carefully at that, that might be subject to a constitutional challenge. The issue could be raised that the procedure in Parliament, in not sending the Bill to the Senate, was unconstitutional.”
Separate to that is the issue of whether Mr Furbert will retable the exact same Bill that was given the green light by MPs.
The legislation, the Human Rights Amendment Act 2016, was to amend the Human Rights Act 1981 “to preserve the institution of marriage” by restricting it to opposite-sex couples.
Mr Attride-Stirling said Section 38 (2) of the Constitution, which does away with the need for Senate approval, would apply only to an identical Bill.
He explained: “Under the Constitution, if any amendments are made, they will have to go through the whole process again.”
Since Mr Furbert’s Bill was approved by MPs, a number of gay couples have tied the knot in Bermuda, in the wake of Puisne Judge Charles-Etta Simmons’s landmark Supreme Court ruling on marriage equality.
Mr Attride-Stirling said the status of those marriages was not addressed by Mr Furbert’s Bill, so the proposed legislation would need amending.
He said: “The legislation should have a grandfathering clause to protect the existing marriages. Is it his intention to make those marriages void? Whatever his intent, there is now a question mark over the legislation, which must be clarified.”
The lawyer said the Furbert Bill would also create potential problems for those married gay couples if they wanted to divorce.
Mr Attride-Stirling added: “There would be restrictions on their ability to access divorce without other amendments to the law.
“They wouldn’t, for example, be able to get a no-contest divorce after two years apart because the law makes reference only to husbands and wives in that regard.
“There are dozens of references in our legislation to husbands and wives. If the Furbert Bill is to be retabled, it would require some further drafting.”
Mr Pettingill and Mr Attride-Stirling questioned last week whether John Rankin, the Governor, would sign off on the Bill if it made it through Parliament.
A Government House spokesman said on Wednesday: “The Governor is unavailable for comment. The Governor will continue to act in accordance with his responsibilities under the Constitution.”
The six senators who rejected Mr Furbert’s Bill labelled it regressive and an infringement on Bermuda’s human rights laws. Only one of those, independent James Jardine, remains in the Upper Chamber. Fellow independent Joan Dillas-Wright voted in favour.
The OBA senate leader, Nandi Outerbridge, voted against the Bill in the House of Assembly when she was an MP.
Mr Furbert declined to comment when contacted by The Royal Gazette last week.