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Island’s ‘inexorable’ march to equality

A gay couple seeking permission to marry in Bermuda are highly likely to succeed if their case goes before the courts, according to a human rights expert.

Lawyer Mark Diel said recent court judgments regarding same-sex couples in Bermuda showed the Island was “moving inexorably towards equality where there is no distinction between same-sex marriage and traditional marriage”.

“It's just a natural progression,” he told The Royal Gazette, adding that there had been a “rapid progression” in human rights in recent years, which some people might struggle to accept.

Ijumo Hayward and Clarence Williams III filed notice of their intended marriage with the Registrar-General on Tuesday and their lawyer Mark Pettingill warned that if it was not posted in the Official Gazette within three days, as per the Marriage Act, he would take the matter to the Supreme Court.

Mr Pettingill said marriage was a service and the Human Rights Act outlawed the withholding of “goods, facilities or services” due to a person's sexual orientation. Further, according to Mr Pettingill, the HRC Act takes precedence over all other laws.

Mr Diel said the argument “made perfect sense” and was likely to find favour with the Chief Justice, who ruled last week that same-sex partners of Bermudians should have the same rights as heterosexual spouses.

“The Chief Justice has made a number of rulings,” said Mr Diel. “You can see the trend.”

He said he expected the Bermuda Government to do nothing about the couple's application and wait for Mr Pettingill to apply for an order of mandamus, which would require the Registrar to post the marriage banns.

“I'd be very pleasantly surprised if the AG's Chambers made a decision that was in keeping with the progression of the law,” he said. “But government, whether OBA or PLP, has been unbelievably slow in recognising these issues in the development of human rights because for them it's a political hot potato.”

He said Mr Pettingill was likely to win the order of mandamus and if the Government did not appeal that decision, Mr Hayward and Mr Williams would be able to wed.

Another lawyer, Paul Harshaw, who has chaired human rights boards of inquiry, said he didn't think it was so straightforward.

“I think there is a duty on the Registrar-General to consider whether or not he can properly issue a licence in accordance with the law,” he said.

“The problem is that the marriage legislation in Bermuda affirms the common law definition [of marriage] as being between a man and a woman.”

Mr Harshaw said the court was unlikely to “usurp the function” of the Registrar-General but may declare certain parts of the law which discriminate based on sexual orientation inoperative.

Natural progression: lawyer Mark Diel said court judgments regarding same-sex couples showed the Island was moving towards marriage equality

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Published December 04, 2015 at 8:00 am (Updated December 04, 2015 at 8:16 am)

Island’s ‘inexorable’ march to equality

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