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Gay couple seek consent to marry

Lawyer Mark Pettingill

A gay couple have applied to be married in Bermuda and their lawyer has warned that they will take the matter to court within days if they are not given permission to wed.

Bermudian Winston Godwin, 26, and his fiancé Greg DeRoche, 29, who live in Toronto, filed notice of their intended marriage with Registrar-General Aubrey Pennyman on Monday.

A letter accompanying the application, from their lawyer Mark Pettingill, asked Mr Pennyman to make clear his “intentions” within two days in relation to whether he would post notice of their marriage.

“If we have not heard from you within that said timeframe we will assume you are unwilling to immediately act in accordance with section 13 [of the Marriage Act 1944] and we will proceed to institute proceedings in the Supreme Court of Bermuda for the appropriate relief,” wrote Mr Pettingill.

The One Bermuda Alliance MP and former Attorney-General told The Royal Gazette: “We don’t want to waste any more time. Enough time has been wasted on this issue. We have asked the Registrar to please indicate promptly if they intend now to abide by the provisions of the legislation and post the banns. We have also put the Attorney-General’s Chambers on notice.”

Mr Pettingill vowed after last month’s referendum that he would not rest until there were equal human rights for all.

He said his aim was to have the issue of how Bermuda should recognise same-sex relationships decided by the courts, rather than the legislature.

The backbencher previously represented a different gay couple who applied to be married here last year: Bermudian Ijumo Hayward and his American partner Clarence Williams III. Mr Pennyman did not post notice of their intended marriage, telling Mr Pettingill that he was taking advice from the AG’s Chambers.

In the covering letter for Mr Godwin and Mr DeRoche’s application, Mr Pettingill wrote that his clients were of the view they were legally entitled under the Human Rights Act to have the service of marriage provided to them and that failure to post notice of their marriage would breach that law. He asked Mr Pennyman to enter the details of the intended marriage in the Marriage Notice Book, post notice in the Registry-General for two weeks and ensure a notice of marriage was published in the newspaper, in accordance with the Marriage Act.

“In the light of your reluctance in the past to perform these services and [having] deferred the matter to the Attorney-General, with the consequential delay, kindly inform us of your intentions with the next two days,” wrote the lawyer.

Mr Pettingill told this newspaper that if Mr Pennyman did not post notice of the marriage, he would apply for an order of mandamus in the Supreme Court, which, if issued, would order the Registrar to perform his statutory duties.

“Our position will be that the Human Rights Act has primacy and sexual orientation isn’t a bar to being provided with services,” he said. “That’s clearly what conducting a marriage is. Consequently, they have the right, under the law as it stands, to marry.”

A lesbian couple represented by Mr Pettingill are also expected to file a notice of marriage in the coming days. The Bermuda Government tabled an amendment to the Matrimonial Causes Act earlier this year which would allow discrimination on the basis of sexual orientation in relation to weddings.

It remains on the order paper at the House of Assembly but if it is not debated before Parliament breaks for the summer, it could simply “fall off” the list, as some have predicted.

Asked whether the Registrar would post notice of the intended marriage of Mr Godwin and Mr DeRoche, a Ministry of Home Affairs spokeswoman said: “We do not comment on individual applications. Any queries about an application may be directed by the couple or their agent directly to the Registrar-General.”

It was not possible to reach the couple for comment yesterday. The turnout for the June 23 referendum was 46.89 per cent. Of those who voted, 69 per cent were against same-sex marriage and 63 per cent were against same-sex civil unions.