Lawyers argue DPA is unconstitutional

  • Big step back: Mark Pettingill argued legislation goes against the constitution protection of “freedom of conscience” (Photograph by Akil Simmons)

    Big step back: Mark Pettingill argued legislation goes against the constitution protection of “freedom of conscience” (Photograph by Akil Simmons)

A law to give limited partnership rights to same-sex couples should be struck down because it has a religious purpose, a lawyer said today.

Rod Attride-Stirling told the Supreme Court the Domestic Partnership Act, which will block same-sex marriage from the start of next month, was unconstitutional.

Mr Attride-Stirling said: “The law is quite clear that while Parliament can bring any legislation they want to bring, if they bring legislation for a religious purpose, the legislation fails.”

Mr Attride-Stirling said the legislation stemmed from a Bill presented by Wayne Furbert intended to block same-sex marriage for “entirely and unquestionably” religious purposes.

He added that Walton Brown, the Minister of Home Affairs, had said that the DPA was put forward to stop Mr Furbert’s Bill.

Both Bills included the revocation of same-sex marriage.

Mr Attride-Stirling said: “It becomes impossible to untie the religious purpose of the Furbert Bill from the revocation purposes of the DPA.”

He also argued there were no secular reasons given to revoke the rights of same-sex couples to marry.

Mr Attride-Stirling said: “In Bermuda, we are changing the secular definition of marriage to impose a religious one.

“They have to have a rational and reasonable justification for bringing it. In this case, there is no justification.”

Mr Attride-Stirling argued that by legislating marriage based on one religious definition, it disadvantaged groups with different religious views.

He added that even if the motivation for bringing the Bill was political in nature, its purpose remained religious.

He said: “That doesn’t take away from the religious purpose. Even if Mr Brown didn’t himself have a religious purpose, that legislation had a religious purpose.

“We are not here to attack Mr Brown; we are here to attack the legislation.”

The comments came as the court heard a lawsuit brought by gay Bermudian Rod Ferguson against the Attorney-General, Kathy Lynn Simmons.

Mr Attride-Stirling is representing interested parties.

Mark Pettingill, representing Mr Ferguson, said the legislation was discriminatory and designed to remove a right from gay people in Bermuda.

Mr Pettingill told the Supreme Court: “We have come so far down the road. We are not talking about walking a step forward.

“We are talking about going back a step. A big step.”

He added: “Once a right is given, it shouldn’t be taken away. That’s the crux of this.”

Mr Pettingill argued the legislation goes against the constitution’s protection of “freedom of conscience”.

He said the DPA was intended to satisfy people on both sides of the same-sex marriage argument, but it created a subclass of people instead.

Mr Pettingill also disputed the suggestion that any discrimination caused by the act would be trivial.

He compared the fight for equal rights to marriage to past civil rights campaigns.

He said: “You have to sit in the back of the bus, but you still get to go on the bus.

“You have to sit up stairs in the movie theatre, but you still get to see the movie.

“It’s a thin point, but it’s still discrimination.”

The Supreme Court ruled in favour of gay couple Winston Godwin and Greg DeRoche last year when they took legal action against the Registrar-General in the wake of a refusal to post their wedding banns.

The ruling opened the way for other same-sex couples to marry on the island.

But Parliament passed the DPA, which was created to replace same-sex marriages with partnership arrangements open to both gay and straight couples, last December.

Mr Fergusson launched his case against the Attorney-General in February.

His aim is to get the court to declare the legislation void on the grounds it is in breach of fundamental rights set out in the Constitution.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

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