SSM: Government reiterates case for denying banns
The Registrar-General cannot post marriage banns for gay couples because such unions are null and void under Bermuda's existing laws, a court heard yesterday.
Deputy Solicitor-General Shakira Dill-Francois, representing the Bermuda Government in a civil action brought against it by a same-sex couple, told a Supreme Court hearing that under section 33 of the Marriage Act 1944 it was an offence for the Registrar to authorise a marriage, knowing it was void.
She said the Matrimonial Causes Act 1974, in section 15, clearly set out the grounds on which a marriage was void, including if “the parties are not respectively male and female”.
“Why would the Registrar proceed to register a marriage that is, in fact, void?” asked Ms Dill-Francois, adding that the two pieces of legislation had to be read and understood together.
Ms Dill-Francois was giving her submissions on the second day of a case brought by Bermudian Winston Godwin and his Canadian fiancé, Greg DeRoche, who are represented by former Attorney-General Mark Pettingill.
The couple want the right to marry on the island and are seeking an order from the Supreme Court to compel the Registrar to post their marriage banns, as well as issue a declaration that same-sex couples are entitled to wed here.
Mr Pettingill told Puisne Judge Charles-Etta Simmons on Monday that the Human Rights Act 1981, which bans discrimination on the grounds of sexual orientation in the provision of goods and services, had primacy over all other laws. But Ms Dill-Francois said it was important to consider the intent of legislators when they amended the Human Rights Act in 2013 to include sexual orientation in the list of protected classes.
Quoting from Hansard, the official parliamentary transcript, she read comments made in the House of Assembly by the Attorney-General at the time: Mr Pettingill.
He had told MPs: “This government considers marriage to be between a man and a woman only. This government will not be issuing marriage licences to same-sex couples.”
In court yesterday, Mr Pettingill got to his feet to acknowledge that it was he who was being quoted but he asked Ms Dill-Francois, to read on to include a further remark he made in Parliament on the subject of same-sex marriage: “It's a different debate for a different day.”
Ms Dill-Francois said: “I'm not reading this section to in any way cast aspersions on my learned friend. The reason I am reading it is to show what the purpose of the amendment was for.”
She added: “It's the duty of the court to accept the purposes decided on by Parliament.”
The Deputy Solicitor-General argued that posting marriage banns and issuing marriage licences was not a “service” as defined by the Human Rights Act.
Ms Dill-Francois said the Act applied to civil servants as it applied to “acts done by private persons” but that was limited and did not include functions carried out by the Government only.
“Parliament did not intend for governmental functions to be considered services,” she insisted.
Earlier, the court heard from Rod Attride-Stirling, representing the Human Rights Commission as an intervener in the case.
He recalled comments made by former Progressive Labour Party leader Dame Lois Browne-Evans when the Stubbs Bill was passed to decriminalise sexual acts between men: “Human rights are for all people.”
Mr Attride-Stirling asked: “What would Dame Lois say about this case? I think it's clear.”
He turned to the United Kingdom and said since same-sex marriage was introduced there, “nothing happened, other than people in love got married”.
The former HRC chairman spoke about South Africa, where gay marriage was made legal in 2006.
He said the country knew plenty about racial discrimination and it had deemed racial and sexual orientation discrimination as “the same thing”.
His comments drew murmurs of disapproval from several people sitting in the public gallery, with one person saying “nonsense!” and another adding: “I was born black.”
Mr Attride-Stirling said: “In Bermuda, we tend to have a discriminatory view of homosexuals. Through time and education, we have evolved. Not everyone has evolved at the same pace.”
He suggested MPs had “passed the buck” on the issue by leaving it for the courts to decide and acknowledged the judge had a difficult task ahead.
He noted comments made by Donald Trump in the presidential election about appointing judges to reverse marriage equality in the United States.
Mr Attride-Stirling noted a day earlier that three previous Supreme Court judgments concluded that government-only functions were “services” as defined by the Human Rights Act,
He said an amendment to that Act passed by Parliament in 2016 “carved out” 28 exceptions, and the Registrar's marriage licensing duties were not included in the exceptions, so clearly fell within its ambit.
Ultimately, he said, the Bermuda courts would be invited to “take either the Trump view of same-sex marriage or the [Nelson] Mandela view”.
He said the rights of children needed to be considered because while it was legal for children to be adopted by same-sex couples in Bermuda, those children were now “being prejudiced [against] because they don't have the right to have two married parents and the rights that are associated with them”.
The lawyer said if there was a case where one partner was Bermudian and the other foreign and the Bermudian died, the foreign partner could be made to leave the island.
He referenced the controversy surrounding the Reverend Nicholas Tweed, who has a Bermudian daughter, but is separated from his Bermudian wife and has had a work-permit renewal refused, meaning he may have to leave the island.
Mr Attride-Stirling said at least in Mr Tweed's case, he could have chosen to stay married, adding: “Gay couples don't have that ability.”
The case continues tomorrow at 9.30am in Court Four of the Dame Lois Browne-Evans building.
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