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Campaigners against SSM ‘will feel shame’

Landmark ruling: Lawyers for the plaintiffs, left to right, Ronald Myers, Sean Dunleavy, Rod Attride-Stirling, Mark Pettingill and Katie Richards outside Supreme Court on June 6, 2018 (Photograph by Akil Simmons)

People who campaigned against marriage equality will come to feel “shame and regret” in the future, former Attorney-General Mark Pettingill predicted yesterday.

Mr Pettingill, who represented gay Bermudian Rod Ferguson in a successful Supreme Court bid to have the ban on same-sex marriage reversed, told The Royal Gazette: “Twenty years from now, some people’s children are going to, at dinner, say: ‘how could you?’

“It’s going to be, in years to come, for some of those people, a position of shame and regret, like it is with many people in our society on the race issue. They are ashamed of what they didn’t do.

“It’s the old classic, isn’t it? Bad things happen because good people stand by and do nothing.

“History is made by people having the courage to bring about change and we have, in many instances, lacked that courage.”

Mr Pettingill was speaking after the island’s top judge, Chief Justice Ian Kawaley, upheld a constitutional challenge to the new Domestic Partnership Act on Wednesday.

Mr Justice Kawaley declared that sections of the Act designed to revoke the right to same-sex marriage were invalid.

He made the ruling after the Act was challenged by Mr Ferguson, Maryellen Jackson and gay rights charity OutBermuda.

The case was brought against Attorney-General Kathy Lynn Simmons.

Walton Brown, the Minister of Home Affairs, said the Government would appeal “subject to any legal advice we receive” just after the judgment was made.

Mr Pettingill asked the Government not to go down the expensive appeal route and instead to draw a line under the debate.

He said: “The judgment is so legally sound, that it would be folly for the Government to launch an appeal. It should be over. If common sense prevails, it should be.”

He added the judgment, which ruled that the DPA went against a constitutional right to freedom of conscience and a provision against discrimination on the basis of creed, as “one for the ages”.

Mr Pettingill said the decision reflected Bermuda’s “excellent judicial process” and a “democratic system that is working very well”.

He added he was pleased that Mr Justice Kawaley picked up on a comparison he made to the days of racial segregation when black people were allowed to enter theatres but had to sit in different seats to white people.

Mr Pettingill said: “This was always the crux of my case. What the Crown tried to argue was ‘but you still have ... all of the same legal rights, what are you complaining about?’.

“The argument back then was: ‘you still get to see the movie, we just don’t want you sitting in the same place’.

“This was ‘you still get to have a legal relationship that the state is calling a domestic partnership but you can’t have marriage, even though other people can’. It’s a perfectly analogous situation.”

Mr Pettingill praised Mr Ferguson for his courage as the face of the marriage equality campaign and said he took personal pride in the case, which he argued for the plaintiffs alongside lawyers Rod Attride-Stirling and Ronald Myers.

He added: “You want, as a lawyer, to have a legacy to what you do. You want to have done something really meaningful. It’s not just about winning cases — we all want to do that and earn a good living.

“It’s the ability to do something that means something in such a tremendous way on a human rights issue.

“It’s something your kids can be proud of. That is, kind of, what I’m most pleased about because my youngest children — not just the older ones, but the younger ones, aged 8 and 6 — get it.”

Mr Pettingill said the DPA was a compromise Bill from the Progressive Labour Party administration drawn up because so much of its support base opposed marriage equality.

He criticised the three independent senators who backed it — Joan Dillas-Wright, James Jardine and Michelle Simmons.

Mr Pettingill said: “These are the people who are supposed to be sitting in the middle, looking at things sensibly and not guided by any kind of political persuasion.

“So for them — en masse, as they did — to come out and say ‘oh, Bermuda is not there, we are not ready for this’, was appalling.

“If I had been the Governor, they would have been fired, just for even that approach to it. I thought that was shameful from the independents.”