Government to defend refusal to marry gay couple
Government lawyers will argue in court that the Registrar-General was right to refuse to marry a gay couple because marriage is not a “service” as defined in the Human Rights Act.
Acting Solicitor-General Norman MacDonald told a Supreme Court hearing yesterday that the Bermuda Government would contest a legal bid by Bermudian Winston Godwin and his fiancé Greg DeRoche to have the Registrar's decision overturned.
The couple, represented by former Attorney-General Mark Pettingill, claim the Registrar breached the Human Rights Act by refusing to process their marriage application in July.
The Act outlaws denying “goods, facilities or services” based on a person's sexual orientation and Mr Pettingill, in his application to the court, said the Registrar had failed in his duties as the Registrar of Marriages.
But Mr MacDonald told Chief Justice Ian Kawaley: “It's the Crown's position that the marriage service is not a service that is covered by the Human Rights Act.”
Mr Pettingill had earlier told the court a full hearing on the issue should be held as soon as possible.
“This is a human rights matter and I respectfully submit that it's gone on too long and one day [more] on a human rights issue is too long, where there's a certain segment of society which is not being allowed its fundamental human rights,” said the lawyer and government backbencher.
“That's something that must be addressed in earnest. It is clear as a pikestaff that services must be allowed for all people.
“All of this is . . . not convoluted. I would urge upon the court that we are ready to go today. I'd be more than happy; let's argue it today.”
Mr Godwin and Mr DeRoche are seeking an order of mandamus from the Supreme Court which would compel the Registrar to act in accordance with the Marriage Act and post their marriage banns. They also want a declaration that same-sex couples are entitled to be married under that law.
Mr Pettingill likened their application for judicial review to an urgent writ of habeas corpus, seeking to have a person released from custody.
“I put it in the same bracket,” he told the court, adding: “This issue should be clarified and heard in short order.”
Mr MacDonald asked for 21 days to file a reply affidavit and for any court hearing to happen in November or December. He said: “The issue is not clear as a pikestaff, as he says.”
Mr Justice Kawaley said he would give the Attorney-General's Chambers 14 days to file its affidavit, adding that the full hearing should take place in October on a date to be set.
Mr Godwin and Mr DeRoche, who are being represented pro bono by Mr Pettingill, filed their civil suit just days after the June 23 referendum on same-sex relationships, when the turnout was less than 50 per cent and the questions were deemed unanswered.
Of those who voted, 69 per cent were against same-sex marriage and 63 per cent were against same-sex civil unions.
If the couple's case is heard next month, a decision from the court could come before MPs return to Parliament on November 4.
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