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‘Yes’ campaign needs first to win over public

Exercise in democracy: a voter turns up to the polling station at Penno’s Wharf to have his say on the same-sex referendum (Photograph by Akil Simmons)

So Bermuda has spoken on same-sex marriage and civil unions. Well, 46.89 per cent of registered voters have spoken.


No matter the invalidity or illegality of an already non-binding referendum, significantly more than the previously agreed minimum required, even had there been a 51 per cent turnout, came down on the “No, No” side.

Once the genie has been let out of the bottle, it is nigh-on impossible getting it back in — try as some might in the “Yes, Yes” camp.

It is wishful thinking in the extreme for anyone to give credence to the theory that a fuller turnout — the like of which was experienced in the referendum more than 3,300 miles away to our northeast that will lead Britain out of the European Union, and have repercussions, no doubt, for Bermuda — would have delivered a much different outcome.

Those who chose not to vote fall into any number of subsets: self-centred indifference, bone idleness or, the least likely, protest at what they believe to be a human rights issue being taken to a referendum.

Because of their “fight for equality”, you would expect that the “Yes, Yes” campaign would lose few potential voters to either of those subsets, least of all the third, for their sheer determination to be heard has to be placed on a higher plane than the indignity of having to vote on the issue in the first place.

So their leaders must accept, as do those in the “No, No” camp, that the island has given its verdict.

Now the ball is firmly back in the court of the politicians, where many feel it should never have left from the moment that Sylvan Richards’s Private Members’ Bill for a referendum on same-sex marriage and civil unions was accepted in Parliament.

Michael Dunkley is in a bit of a pickle now. Not so much up the creek without a paddle, but in a quandary all the same.

Having already declared that the vast majority of the One Bermuda Alliance’s parliamentary caucus supported marriage as between a man and a woman, the Premier has now to convince his team — all of his team — and, by extension, the Progressive Labour Party MPs that allowing civil unions is the way to go. By a conscience vote. With a General Election no more than 16 months away.

The alternative is for the issue to be dragged into the Supreme Court again, and for Chief Justice Ian Kawaley effectively to play headmaster to students who have been given their assignment, but have rather insolently decided to take an extended lunch break instead.

This is not meant to be an issue for the courts, unlike what some have opined, but one for the lawmakers. That has been the precedent set in most places in the world where same-sex marriage is legal — and Bermuda is no different.

One of the few exceptions has been the Pitcairn Islands, ironically alone among the 14 British Overseas Territories and three Crown dependencies to have legalised same-sex marriage, where the Legislature and the judiciary are essentially one and the same.

What has also been the game changer is public support. Apart from the United States where the 50 states reached their own conclusion via the state legislature or federal court before the Supreme Court made a blanket ruling to get the naysayers to conform, popular opinion was first sought and then gained in favour of same-sex marriage before laws were changed.

Even in America, as 14 “rebel” states required being talked down to by the highest court in the land, support for gay marriage increased with each successive poll over a five-year period before a national ruling was made.

In Britain, polls have returned consistent support since 2004, but it was not until July 2013 that legislation was passed, with the law coming into effect eight months later. It can be argued that those countries ultimately bowed to the wishes of their people, but that is not the case here in Bermuda.

An “unanswered” referendum has informed the Legislature that 69 per cent of voters are against same-sex marriage, while 67 per cent are against same-sex civil unions.

The challenge at hand is for compromises to be struck, and significantly so in the matter of civil unions. Before it is too late.

It has not been said officially but that is where the OBA would like to take this, with those entering into civil unions possessing all the rights of those in a traditional, opposite-sex marriage.

The last Royal Gazette poll before the referendum showed that those who opposed same-sex marriage held a healthy edge over those in favour. But there was a favourable response for civil unions and, while the size of the “defeat” on the second question in the referendum was surprising, it was a mark of progress that two of the 12 regions voted in favour of civil unions and two others lost out by a combined five votes.

It has been determined already by the European Court of Human Rights that same-sex couples are deserving of legal recognition and Mr Justice Kawaley is all too aware of that, which is why he told the Legislature to “take it back and change it” in the wake of the Bermuda Bred case.

A bipartisan approach would be ideal on a human rights issue — for civil unions, that is, because the right to marry on its own is not a human right, says the ECtHR — but the silence from the PLP from the onset of the campaigns in March up to the day of the referendum has been deafening.

It is to be hoped that the general inaction, save for the odd offering from Walton Brown on social media, is not a political ploy. For the number of those in the community against civil unions will require the statesmanship of both parties if they are to be placated, if not completely talked around.

Any currency put into fear that voters would abandon ship at the next election will result in one thing: the near certainty that same-sex marriage will become legal in Bermuda through the courts, with the lowest public approval in the world.