Preserve Marriage members ‘blacklisted’, court hears
Opponents of same-sex marriage have been “blacklisted” by businesses and fear repercussions from the LGBT community for their views, a court heard yesterday.
Delroy Duncan, lawyer for Preserve Marriage, made the claim in the Supreme Court, as he argued that the charity should not have to put up the costs for civil proceedings which it wishes to join as an interested party, nor reveal the identity of its donors.
The proceedings were brought by gay couple Winston Godwin and Greg DeRoche against the Registrar-General for refusing to marry them on the grounds of their sexual orientation.
The pair claim the Registrar's refusal breaches the Human Rights Act and they are seeking an order from the Supreme Court to compel him to post their marriage banns, in accordance with the Marriage Act. They also want a declaration that same-sex couples are entitled to be married under that law.
The two men's Judicial Review application is set to begin next Monday and yesterday's hearing considered whether Preserve Marriage, which opposes same-sex marriage and civil unions on religious grounds, should be allowed to take part in the proceedings.
At the end of the hearing, Puisne Judge Charles-Etta Simmons reserved judgment on Preserve Marriage's application, saying she expected to make a ruling later in the week and that the trial could possibly still go ahead on Monday.
Mr Duncan told the court: “Let's make this what it is; it's a national debate where interested parties with a real and legitimate interest in the outcome should be permitted to have their say.”
But Mark Pettingill, representing Mr Godwin and Mr DeRoche, dismissed the argument put forward by Preserve Marriage's lawyer, saying: “We are dealing with a narrow issue; a contracted marriage before a registrar. They [Preserve Marriage] are not a proper party to assist the court in the legal issue it must determine.”
Mr Pettingill also made an application for the charity to provide “security of costs” for the proceedings if it was allowed to be involved.
He claimed Preserve Marriage's legal fees were being funded by “third parties” and said the identities of those third parties should be revealed.
But Mr Duncan said: “Members of Preserve Marriage who have publicly come out opposing same-sex marriage and civil unions have been blacklisted by businesses.”
Mr Duncan added that disclosing the identity of donors would “invade the privacy of members of this community who support Preserve Marriage” and who feared “repercussions” from the LGBT community.
He referred to a letter he had received from Preserve Marriage member Laura Dowling, a chiropractor, who told him members of the charity's action team had been blacklisted and denied access to certain venues.
“Her practice has been affected as well,” he said. “This is real. This is what's going on in this case. The public square in Bermuda should be for everybody to have a say in matters that affect or potentially affect their interests.”
Former Attorney-General Mr Pettingill argued that Preserve Marriage's involvement would significantly extend the proceedings and that wasn't fair on his clients.
He said the charity had filed “voluminous” submissions which were not relevant to the “narrow issue” at hand and which he did not plan to read.
“This is not a public debate,” the One Bermuda Alliance backbencher said. “This is not Speakers' Corner. This is not a religious debate.”
He suggested those represented by Mr Duncan were “bigots”, a phrase Preserve Marriage's lawyer described as “very unfortunate”.
Mr Pettingill said: “All that word means is they are opposed to a position somebody else has.”
But Mrs Justice Simmons, who was hearing the arguments, said: “I think it's a far more loaded word than that.”
The Human Rights Commission is an intervener in the case and its lawyer, Rod Attride-Stirling, complained that Preserve Marriage had submitted evidence late on Monday and early yesterday, instead of giving counsel at least two days to consider it. “It's impossible for us to state a considered position in relation to the application because we have not had a proper opportunity to consider the evidence,” Mr Attride-Stirling said. “[The submission] makes scandalous and false statements that my clients want to respond to to correct the record. That evidence, quite frankly, should be struck out.”
He described some of the material as “outrageous”, adding that some statements were false and others were “heavily disingenuous”.
“It's totally inappropriate that this sort of evidence should be used during this hearing.
“We have had no opportunity to respond.”
Mr Duncan denied the evidence contained false statements. He said two countries which had settled the matter of same-sex marriage through the courts — the United States and South Africa — had allowed submissions from groups such as Preserve Marriage.
And he said Mr Pettingill was “on public record” — in The Royal Gazette — as providing his services free of charge to Mr Godwin and Mr DeRoche, so the cost of the proceedings would not impact them. Mr Pettingill said he was not on the court record as providing his services pro bono and it was not the case.
Mr Godwin's and Mr DeRoche's writ against the Registrar was filed days after a referendum on same-sex marriage and civil unions. The ballot was deemed unanswered because of low voter turnout.
The Government has said it will defend the legal case on the grounds that a marriage service is not a service covered by the Human Rights Act. In his refusal letter to the couple, the Registrar cited the Matrimonial Causes Act, section 15 of which says a marriage is void if the parties are not male and female.
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