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Real result of the referendum

Highly thoughtful and deliberative, Chief Justice Ian Kawaley is a man not to be taken anything but seriously. And before issuing a recent ruling upholding the legality of the pending referendum on same-sex marriage and civil unions, he bluntly described certain aspects of the poll as “absolutely absurd”.

The strikingly unambiguous language heard from the bench echoed what many observers have been saying about the referendum since it was announced: that it's a flawed and unhappy compromise between a compelling, likely inescapable public duty and brazen political expediency.

Mr Justice Kawaley stated while it was “contrary to principle — general principle — to hold a referendum on a subject matter that affects human rights”, he nevertheless found legal arguments put forward by supporters of same-sex unions to stop the vote from proceeding to be unpersuasive.

So while the Bermuda Government's right to hold the referendum was affirmed, the procedure's appropriateness and, ultimately, its very utility clearly weighed on the Chief Justice's mind.

This, after all, is a matter in which Bermuda will almost certainly end up having to comply with its own overarching constitutional principles and international human rights obligations, rather than the will of its people in the event of resounding “no” votes on the two questions being posed.

The Government has already conceded as much by making the referendum results non-binding, tacitly conceding the courts may well require Bermuda to extend marriage and associated rights to same-sex couples regardless of the public mood or any parliamentary action — or continued inaction — on the subject.

For many members of the legal community as well as lay supporters of same-sex unions, this is an issue framed strictly in terms of natural justice, equality, and civil and human rights.

They point to societal views about gay people having evolved considerably throughout the Western world in recent decades, with same-sex marriage and civil unions now legal in almost two dozen countries, including, most recently, the United States.

For opponents, though, this is a matter defined in much broader cultural terms, touching on sincerely and strongly held religious beliefs and moral convictions.

Values derived from individual religious beliefs cannot, of course, provide the basis of public law in secular, pluralistic democracies unless they are widely shared by the broader community.

Nevertheless, when the community values of a substantial portion of a society are shaped by religious views, the lawmaker who ignores such a political, cultural and demographic reality does so at his or her own peril.

Ultimately, of course, the two points of view in Bermuda on gay unions are as divergent as they are entirely irreconcilable. So the Government sought to balance its constitutional and civic obligations with a sensitivity to the public mood as best it could by way of staging a referendum. And this explains why Bermuda is going to the polls next week to participate in what amounts to an island-wide opinion poll.

This has led some referendum critics to charge the June 23 vote is a shameless attempt to accommodate both sides of a deeply divisive issue without risking too much in the way of political capital or demonstrating any moral courage whatsoever.

They have described the poll as a shameless effort to sidestep direct political responsibility for the matter by referring it to the court of public opinion.

It is true that Bermudians will be participating in a purely symbolic exercise, given the referendum's results will not commit this or future governments to any particular course of action in terms of either granting or continuing to withhold legal recognition and protection to same-sex unions. From a strictly legal, procedural and constitutional perspective, such criticisms of the referendum do have some merit.

However, the poll will provide an invaluable snapshot of Bermudian public opinion on this matter, showing precisely how divided we in fact are — and thereby helping to determine how best we proceed. For, as even some of the most adamant opponents of same-sex unions privately concede, the status quo is likely unsustainable in the long term and change is almost certainly inevitable.

The breakdown of “Yes” and “No” votes cast next Thursday will go a long way to determining how fast that change comes about and what forms it takes, and this will be the real result of the referendum.

Chief Justice Ian Kawaley (Photograph by Akil Simmons)

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Published June 17, 2016 at 9:00 am (Updated June 17, 2016 at 12:24 pm)

Real result of the referendum

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