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Civil unions the lone undeniable human right

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The greatest assist the “Yes, Yes” campaigners could have received in the run-up to the same-sex marriage and civil unions referendum this week came from an unlikely source.

No, not Sir John Swan, but Omar Mateen.

When the radicalised New Yorker of immigrant parents stormed into a popular gay nightclub in Orlando nine days ago and imposed his very own form of homophobic justice by killing 49 innocents — before he became the 50th “victim” — it was the LGBT cause that was entered into martyrdom, not a disaffected 29-year-old who had pledged allegiance from afar to the self-styled Islamic State.

Apart from an “act of terror and hate”, as it was labelled by Barack Obama, it brought to the surface the level of discrimination suffered by the lesbian, gay, bisexual and transgender community.

The ultimate right — the right to live — was taken from 49 people and that now serves as a backdrop to the fight for rights of a different sort.

The right to marry is a human right, as argued by one side, while the opposers say human rights have no bearing on the argument at all, and that the sanctity of marriage should be preserved as between a man and a woman.

As with most things in this changing world, Bermuda has been generally slow to come to the boil.

We were slow with the automobile. We were slow with the computer. We were slow with the internet. We were slow with the mobile phone. We were slow — very slow — to appreciate fully the global economic crisis of 2008 and how it might affect us. We were slow with the smartphone. We have been slow to adapt to appropriate usage of social media.

Slow. Not backward.

So it stands to reason that we would be slow, too, to join in on the “progress” that has been made in relation to affording the same rights to same-sex couples as would be conferred as a matter of course to opposite-sex couples.

It is on the evidence of Supreme Court cases, or their equivalent, that advocates enshrine their belief that opponents to same-sex marriage are fighting a battle that ultimately they will lose. But those jurisdictions who have taken that big leap first changed the law. And the lawmakers are the politicians.

It is for judges, such as Chief Justice Ian Kawaley, to then interpret and enforce that law.

The European Court of Human Rights ruled only on June 9 that there could be found no claims for discrimination in the case of Chapin and Charpentier v. France, which came about when their 2004 “marriage” was challenged and annulled, prompting a 12-year legal proceeding that ended in disappointment for the plaintiffs. However, because same-sex marriage is now legal in France, Chapin and Charpentier are free to get married.

That same ruling drew parallels with similar cases brought before the ECtHR — Schalk and Kopf v. Austria in June 2010, Hamalainen v. Finland in July 2014, and Oliari and Others v. Italy in July 2015 — in that there was no evidence that Article 12 of the European Convention on Human Rights had been contravened. That is, the right to marry.

Where groups such as Preserve Marriage will struggle before the highest court in the land is if they persist with the “my way or the highway” approach.

Homosexuality is here, and it is here to stay. Whether it is considered amoral, a lifestyle choice or, indeed, if it is a characteristic determined since conception, these are human beings and, to borrow from Al Seymour's staple vocabulary, they deserve to be treated with decency and respect.

This means that in the least they deserve to love who they want to love and to have society confer upon them the same rights that are afforded to those who enter into a traditional marriage.

We are talking about mutual material support, maintenance obligations and inheritance rights, to name the most significant.

Not included in those rights, though, is the right to marry itself. Each of the aforementioned cases has come unstuck on Article 12 of the European Convention on Human Rights. But on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination), support for the gay community is as merited as it is constitutional.

So we revert to the first instalment of Chapin and Charpentier v. France; Bermuda is now where France was then. Twelve years ago.

Whether we evolve to the point where France now finds itself will be down to the parliamentarians in the One Bermuda Alliance and the Progressive Labour Party — first in the matter of legal recognition of same-sex civil unions and the associated rights; then on the more vexing issue of same-sex marriage.

Where Mr Justice Kawaley may intervene is on the matter of human rights should the status quo prevail and they do absolutely nothing.

That is primarily where our politicians must finally come to the party. The 35 elected MPs collectively have held their own counsel on the debate, while all around them have gone mad. Preserve Marriage has run amok with an advertising campaign to make the most hardened politician go weak in the knees, while the liberal activists in the “Yes, Yes” camp have been equally as manic with a steady barrage of media exhortations.

On both sides of the argument, there are many good and well-intentioned people. But both possess those who in their rhetoric advertise the worst in us — in their risible condemnation of people's lifestyles, in force-feeding the Bible down our throats, in denying the Bible as Peter thrice denied Jesus, in advocating atheism in a country that is as deeply religious as any in the world.

Michael Dunkley, the Premier, who is keenly aware of the historical primacy of religion in Bermuda, gave the clearest insight as to which path the Government may be directing the country when he publicly declared his support of civil unions.

This non-binding referendum on Thursday would then serve as a litmus test of public opinion; hence the two questions and the “get out of jail” card if the Legislature can be convinced to allow same-sex couples to be married in all but name.

But few apart from the Premier have shown their hand. “Yes, Yes” and “No, No” have permeated the debate, but what is clearly the best solution for now is the early Finland approach — “No, Yes”.

The Scandinavian country, which will legalise same-sex marriage in March, changed as the people in that country warmed to the idea with every subsequent poll — and not before.

So while the referendum is non-binding, it does indeed mean something in that it will give the lawmakers a feel for what the people want.

If polls sponsored by The Royal Gazette are to be believed, the people still need some convincing that same-sex marriage is the right way to go. But support for same-sex civil unions is not only healthy as ever, but holds a commanding lead over the “No” voters.

Stalling on same-sex marriage would not put Bermuda on the “wrong side of history” — a mythical and intellectually bullying term if ever there were any — but we would be treading very dangerous ground if we continue to treat a section of our community as if they don't exist.

“No, Yes” will not make everyone happy, on either side, but it would be the right thing to do. Besides, when has everyone in Bermuda been happy? About anything?

Chief Justice Ian Kawaley
Same-sex couples deserve to have the same rights as those who enter into a traditional marriage

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Published June 21, 2016 at 9:00 am (Updated June 21, 2016 at 11:02 am)

Civil unions the lone undeniable human right

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