Furbert: same-sex Bill looks hopeful
Government MP Wayne Furbert will bring his Bill to outlaw gay marriage back to Parliament in September — and he expects it to pass.
Mr Furbert told The Royal Gazette that same-sex marriage was a key issue in the General Election, with the Progressive Labour Party's clear opposition to it, as stated in its manifesto, a factor in its landslide win.
He said he would not lobby his party members to support his private member's Bill, as it would be a vote of conscience, but believed enough of them would be in favour to ensure its safe passage through the House of Assembly.
The same Bill passed last year in the House but was blocked in the Senate. This time, if it passes in its current form, it will not need the approval of the Upper Chamber to become law.
“I think it has a good chance,” Mr Furbert said. “If you consider who voted before, I kind of have a good feeling. In theory, I think it will go through.”
The backbencher tabled his Human Rights Amendment bill in 2016, in an attempt to prevent same-sex couples who wanted to marry from taking advantage of a 2013 amendment to the Human Rights Act, which outlawed discrimination based on sexual orientation.
His proposed change to the law was to insert a clause into the Human Rights Act to say nothing in it could override the provisions of section 15 (c) of the Matrimonial Causes Act, which deems a marriage void unless between members of the opposite sex.
Mr Furbert had earlier tried — and failed — to have the Human Rights Act amendment of 2013 changed to exclude the Matrimonial Causes Act from the reach of discrimination on the basis of sexual orientation.
On July 8 last year, he was successful in getting his Bill passed, with 20 MPs voting in favour: 12 PLP members and 8 OBA. A week later, senators, whose approval was needed, rejected the Bill by six votes to five. Since then, a Supreme Court judge has ruled that denying the service of marriage to same-sex couples is a breach of their human rights and at least one gay couple has tied the knot on the island.
Puisne Judge Charles-Etta Simmons said in her judgment that parliamentary transcripts from 2013 showed “it was always accepted by Parliament that the 2013 [HRA] Amendment Act might lead a court to conclude that same-sex marriage was permissible” and that “there were no clear explanations given by the promoters of the [2013 amendment] Bill that the purpose and aim of the amendment was to shut out the possibility of same-sex marriage”.
The judge said it was appropriate for the court to declare section 15 (c) of the Matrimonial Causes Act inoperative.
Mr Furbert said if his Bill passed for a second time it would send a clear message to the judiciary as to Parliament's intentions. “Parliament has always been supreme,” he said. “The parliament represents the people, not the judges. They interpret the law.”
He suggested his enhanced majority in Hamilton West after the July 18 General Election — he took 65 per cent of the vote, compared to 56 per cent in 2012 — was directly related to same-sex marriage, with the issue also playing a part in his party's overall massive win.
The PLP's platform said: “We accept that same-sex couples should have similar legal benefits as heterosexual couples, save for marriage, and will introduce legislation to achieve this aim.”
Mr Furbert said: “A lot of people voted with the PLP based on their view. The OBA, under Michael Dunkley, failed [on the issue]. Michael Dunkley would not take a position.
“I believe there were a significant amount of people who voted on this issue and a lot of white Bermudians who voted for the PLP for the first time based on that.”
He pointed out that less people voted for the OBA in the General Election (13,832), than voted against same-sex marriage in last year's referendum (14,192).
Lawyer Rod Attride-Stirling, who represented the Human Rights Commission in the case which resulted in Mrs Justice Simmons's ruling, said Mr Furbert's bill becoming law was by no means a “done deal” and, even if it did, it was “still liable to attack”.
“There are several problems with the Furbert Bill,” he said. “Putting aside the moral problem with it and looking at the legal problems, there are a number of reasons why the Governor may not be prepared to sign it [into law]. The bill is very arguably unconstitutional.”
Mr Attride-Stirling said the biggest problem with the legislation was that it was religiously motivated. “With any legislation that's religiously based, people who don't subscribe to that religious view are discriminated against. It is bad for that reason.”
The lawyer said a further argument could be made that restricting who a person could marry based on their gender was unconstitutional, as the constitution arguably outlaws unequal treatment on the basis of sex.
Mr Furbert's Bill was also problematic, he said, because it did not mention the fact that gay couples had now legally married here.
This is a very material change from the time when the Furbert Bill was first presented to Parliament. This change in circumstances must be addressed.
“If section 15 (c) is resuscitated, does that mean that those existing marriages that were lawful, are now going to be made unlawful overnight? The Bill is now wholly unclear and, therefore, now inadequate.
“Alternatively, if existing marriages will remain lawful, then you have to go back and make changes to deal with divorce.
For these reasons, the Governor may require the bill to be amended to include a ‘grandfathering clause'. This would be normal given the change in position, ie that we now have existing lawful marriages in Bermuda and crystalised rights should not be taken away retroactively.
“The PLP should realise this and not allow the bill to proceed. The party could make a decision to vote against a private member's Bill.
“It would be a shame if it was left to the Governor to force the issue of the need for a grandfather clause.”
Mr Attride-Stirling said if the Bill was substantially changed it would need to go before the Senate, where anything might happen.
Down to the numbers
• The Bill will need the support of a majority of the 36 MPs in the House of Assembly to pass. The PLP has 24 MPs and the OBA has 12.
• Twenty MPs voted in favour of it last year. They were the PLP's David Burt, Derrick Burgess, Rolfe Commissiong, Lovitta Foggo, Wayne Furbert, Dennis Lister, Diallo Rabain, Walter Roban, Lawrence Scott, Jamahl Simmons, Michael Weeks and Kim Wilson; and the One Bermuda Alliance's Jeanne Atherden, Kenny Bascome, Craig Cannonier, Bob Richards, Wayne Scott, Sylvan Richards, Leah Scott and Cole Simons.
• Ten MPs voted against: the PLP's Walton Brown and Michael Scott; the OBA's Grant Gibbons, Patricia Gordon-Pamplin, Trevor Moniz, Nandi Outerbridge, Mark Pettingill, Glen Smith and Jeff Sousa; and independent Shawn Crockwell.
• Post-election, 17 of the MPs who supported the Bill remain in the House, along with five of those who voted against. Supporters of the Bill who are no longer in the House are Mr Bascome, Mr Richards and Mr Scott. Opponents of the Bill who are no longer in the House are Ms Outerbridge, Mr Pettingill, Mr Smith, Mr Sousa and the late Mr Crockwell.
• The PLP's Renée Ming is now an MP and she voted for the Bill when it went before the Senate last year. That means the PLP now has 18 MPs in the Lower Chamber who have supported the Bill in the past. PLP MP Zane DeSilva was absent for the ballot last year but has stated his opposition to same-sex marriage. His likely support for the Bill takes the number of expected yes votes to 19.
• The other new PLP MPs are Kim Swan, Tinee Furbert, Chris Famous, Wayne Caines, Neville Tyrrell, David Burch, Dennis Lister III and Scott Simmons. It will be a conscience vote but the new MPs may vote in accordance with their party's election platform, which stated that “same-sex couples should have similar legal benefits as heterosexual couples, save for marriage”.
• The OBA's Jeff Baron is now an MP and he voted against the Bill last year in the Senate. His opposition to the Bill takes the number of expected no votes to six (the other five being Mr Brown, Mr Scott, Mr Gibbons, Ms Gordon-Pamplin and Mr Moniz).
• The OBA has one other new MP, Ben Smith.
• Two other unknowns are the OBA's Michael Dunkley and Susan Jackson. Mr Dunkley abstained last year, when he was Premier. Now the Opposition's sole backbencher, he is a supporter of civil unions for gay couples but has never publicly backed same-sex marriage. Ms Jackson could not vote last time as she was committee chairman. She has voiced support for civil unions but has not publicly supported same-sex marriage.
• If the House approves the Bill in its current form, it will not need to go before the Senate, but will need the assent of the Governor to become law.
• If the Bill is substantially changed, it will have to go before the Upper Chamber, and will need the support of a majority of the 11 senators to pass.