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Furbert’s same-sex Bill

Same-sex couples could have only a brief window of time in which to marry in Bermuda if a Bill tabled by Opposition politician Wayne Furbert passes in Parliament and gets royal assent.

The draft legislation, which can be debated and voted on by MPs after July 8 and does not need Senate approval, would restrict marriage to opposite-sex couples.

Gay people have had the right to wed one another in Bermuda since a landmark Supreme Court ruling on May 5, with at least one couple already giving notice of their intended nuptials.

But the successful passage of Mr Furbert's Bill could remove that right, meaning only same-sex marriages conducted here before the Bill was enacted into law would be valid.

Commentators were divided yesterday on whether Mr Furbert's private member's Bill was likely to succeed.

The same Bill passed in the House of Assembly last summer by 20 votes to ten, but was then blocked by the Upper Chamber, after six senators voted against it, including Mr Furbert's Progressive Labour Party colleague Kim Wilkerson.

Mr Furbert re-tabled his Bill earlier this month and, as per section 38 (2) of the Bermuda Constitution Order, there is no need this time for Senate approval before it goes to the Governor for assent.

One parliamentary source, who asked not to be named, predicted yesterday that any fresh voting in the House was unlikely to have changed from last time.

“I don't think the numbers will change much at all,” said the source. “I think everyone will vote exactly as they voted before.”

Those in favour of the Bill last year were: Jeanne Atherden, Kenneth Bascome, Craig Cannonier, Bob Richards, Sylvan Richards, Leah Scott, Wayne Scott and Cole Simons, of the One Bermuda Alliance, and Derrick Burgess, David Burt, Rolfe Commissiong, Lovitta Foggo, Mr Furbert, Dennis Lister, Diallo Rabain, Walter Roban, Lawrence Scott, Jamahl Simmons, Michael Weeks and Kim Wilson, of the PLP.

Those against were: the OBA's Grant Gibbons, Patricia Gordon-Pamplin, Trevor Moniz, Nandi Outerbridge, Mark Pettingill (who is now an independent MP), Glen Smith and Jeff Sousa, the PLP's Walton Brown and Michael Scott and independent Shawn Crockwell.

Michael Dunkley, the Premier, abstained. The OBA's Suzann Roberts and Susan Jackson could not vote as they were, respectively, acting Speaker and committee chairman. The PLP's Marc Bean and Zane DeSilva were absent, as was Speaker Randy Horton. Mr Bean's seat is now held by Opposition MP Neville Tyrell.

The source suggested MPs in marginal seats, who voted for Mr Furbert's Bill last time around, would be least likely to change their position for fear of losing support, noting the vocal opposition to same-sex marriage from some churches and the pressure group Preserve Marriage.

But lawyer Rod Attride-Stirling said: “I don't think it's certain that the vote will be the same. I understand that some people are reviewing [the Supreme Court judgment].”

He said there were a variety of reasons why it was “far from certain that the Bill will ever become law”.

Among them was the fact that the Bill can't be debated before July 8 — 12 months after it first passed in the House — and a motion of no confidence in Mr Dunkley is scheduled for June 9, leaving no guarantee that Parliament will still be sitting by then.

Even if it is, Mr Furbert's Bill may not be taken up by the House before it breaks for the summer, as the Government may have other priorities.

The Bill would amend the Human Rights Act by carving out a clause to give primacy where marriage is concerned to the Matrimonial Causes Act, which deems unions void unless between a man and a woman.

If it was to be voted on again, legislators would be expected to have carefully read the May 5 ruling by Puisne Judge Charles-Etta Simmons.

The judge found that denying same-sex couples the right to marry created a hardship for them, and any children they might have, and was a breach of their human rights. Government, which was the defendant in the civil suit, said it would not appeal.

Mr Attride-Stirling represented the Human Rights Commission as an intervener in the case. Giving his personal opinion to this newspaper, he said it would be “very difficult to vote for a change to the human rights legislation” in light of the judgment.

He added: “The judgment is sound and the legal issues that are the basis of the judgment are all correct.”

Neither political party has stated a firm position on same-sex marriage.

An OBA spokesman told this newspaper earlier this month: “At this point, the party is not going to comment.”

A PLP spokeswoman said on Sunday: “The issue of same-sex marriage is a matter of conscience for individual PLP MPs, as our members and supporters hold strong and divergent views, as they are free to do.”

If Mr Furbert is able to get enough support for his Bill to pass, it will need the assent of John Rankin, the Governor, who is on record as a supporter of same-sex civil unions. Sources said he would be highly unlikely to refuse assent.

“If he did reject [the Bill], it would create a constitutional challenge,” said the first parliamentary source. A second source said they believed it would receive assent.

The United Kingdom enacted same-sex marriage legislation in 2014 and has said it expects its Overseas Territories to meet the same high standards as the British Government with regards to human rights.

The source said the UK would likely be satisfied that Bermuda had met its obligations if it passed civil union legislation, meaning the draft civil union Bill, which was never tabled in Parliament by the Government before last year's referendum, could resurface if Mr Furbert's Bill was successful.

Opposition politician Wayne Furbert

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Published May 31, 2017 at 9:00 am (Updated May 31, 2017 at 12:30 am)

Furbert’s same-sex Bill

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