‘Same-Sex Marriage Is Already Constitutional’

Fred Smith

Fred Smith


Tribune Chief Reporter


LAWYER Fred Smith, QC, yesterday claimed that the constitutional backing for same-sex marriage has been available for decades as he criticised opponents of the upcoming gender equality referendum.

Mr Smith, president of the Grand Bahama Human Rights Association (GBHRA), said the view that the referendum would pave the way for same-sex marriage was a damaging myth that displayed a fundamental misunderstanding of the law.

He explained that Article 15 of the Constitution already protected individuals from discrimination on the basis of sex, and as a result, a legal path to same-sex unions was already present.

“The simple truth, however, is that the bills couldn’t possibly have the effect they claim, as the path to such unions has been enshrined in our supreme law since independence,” he said in a statement.

“This was decided by the Supreme Court and the Court of Appeal in the Bahamas in 1996 in a case argued by myself and Maurice Glinton, QC, before Dame Joan Sawyer in Harbour Lobster and Fish Co and Jeffrey Butler vs. Attorney General, when the courts held that discrimination on the grounds of “sex” and “gender” were unconstitutional.

“Therefore, any couple denied the right to be married can mount a constitutional challenge on the basis of this protection and have the courts ratify their union.”

Mr Smith noted that London’s Privy Council, the country’s highest court of appeal, has recognised same-sex unions since 2013.

The fourth Constitutional Amendment Bill has been mired in controversy due to belief from some quarters that a yes vote would lead to same-sex marriage. The proposed change seeks to update Article 26 of the Constitution to outlaw discrimination based on sex.

Bill one as written would give Bahamian women who are married to foreign men the right to pass on their Bahamian citizenship to any child of that union no matter where that child is born.

The Constitution currently says that only Bahamian male citizens by birth have that right.

Bill two as written would allow a Bahamian woman married to a foreign man the right to secure for her husband the same access to Bahamian citizenship as a Bahamian male has in relation to his foreign wife.

Bill three would grant any unmarried Bahamian man the right to pass on his Bahamian citizenship to any child he fathers with a foreign woman with proof of paternity.

Mr Smith added: “So this referendum has nothing whatsoever to do with same-sex marriage and everything to do with ending discrimination against Bahamian women, and in some cases men, solely on the basis of their gender.

“There is nothing hidden or even controversial in what the government is trying to do; the intention is simply to amend another section of the Constitution so as to bring it in line with the protections outlined in Article 15.”

Mr Smith also commended the government for following through on its promise to hold the gender equality referendum, as he pledged his organisation’s full support of the YES Bahamas campaign.

He also cautioned that his comments were not to be interpreted as support of discrimination against gay rights or the LGBT community.

Mr Smith underscored that while gender equality and gay rights were separate issues, both struggles were supported by the GBHRA. He said his organisation believed that the LGBT community should benefit from all rights and privileges, including the right to marry.

“The GBRHA will push for the success of this referendum, even as we continue to fight discrimination in all its forms – whether based on race, gender, ethnicity, nationality, sexual preference, or any other arbitrary, morally indefensible consideration,” he said.

The referendum will be held on June 7.


sheeprunner12 3 years, 11 months ago

There are those who say Article 15 has no legal weight and now Red Fred is saying that Article 15 is all-powerful ....... I guess the British Privy Council will rule on this eventually and settle it for our colony (like hanging) .......... what a jokey "country" we are!!!!!!!!!!!


Voltaire 3 years, 11 months ago

I concur sheeprunner - we are dead jokey.


Publius 3 years, 11 months ago

What would have been a more correct argument legally on Fred's part would be that the Constitution gives Parliament the authority to legislate marriage, and it does not restrict Parliament from legislating marriages such as same sex marriage or any other type of marriage because the Constitution is silent on the definition of marriage. The Constitution (Article 26) gives Parliament authority to discriminate in a number of laws - including marriage and divorce laws. Parliament does not have to discriminate, but it is explicitly given the authority to do so if it so chooses, and Article 26 (which is the Article under Bill#4) says nothing in that Article shall pertain to marriage and divorce laws. This means that whether Bill#4 passes or not, nothing now in nor added to that Article shall pertain to marriage laws or divorce laws. It is not correct on Fred's part to say the Constitution gives persons the right to same sex marriage. That is false and I don't know whether Fred knows that or not - with him you can never tell re: motive of commentary. The Constitution does not list marriage as a right at all, nor does it define marriage, nor does it restrict Parliament from legislating one type of marriage over another. Parliament has full authority to decide.


Well_mudda_take_sic 3 years, 11 months ago

Nice try, but you are dead wrong! The amendment proposed by Bill#4 would prevent discrimination of any kind based on sex which means our parliamentarians would then be free to legislate same-sex marriages with the simple stroke of their pen. This is why the corrupt Christie led-PLP government and the detestable likes of Sean McWeeney, Rubie Nottage, Sharon Wilson, etc. have steadfastly refused to draft a proposed amendment that would unequivocally define "marriage" as the legal union through wedlock of a man and a woman to the exclusion of all other forms of union whether they be between man and man, woman and woman, man and sheep and woman and sheep. The Bahamas is not America; we have our own culture and identity and the vast majority of Bahamians want our constitution to be amended in a way that would respect and protect the institution of marriage as we have known it for centuries.


Lsheltonbrock 2 years, 1 month ago

Well, tell me this........so heterosexual marriage has been the tradition and law for centuries, but so was slavery of black people. Was it a bad thing that slavery was ended? Was the legalizing of interracial marriage a poor decision? Just guessing of course, but I would think likely you probably favor both of the major social changes. Just because we have done something one way for a long time in my view is no reason to not do something differently. One would want the change to be made to benefit humanity in one way or another. Usually allowing ofor greater freedom and equality is considered to a step forward for humanity. If the population were equality straight and gay marriage equality would have been the rule from the beginning. The fact is this issue exists because its about majority control as in the majority is where the power and money lie. So tell me what is so wrong with including all human beings in the family? Straight marriage and "the family" is in no way negativity effected by allowing other the right to be married and form a family. Religious straight people claim that marriage is a good thing for society in that it encourages mature behaviors and responsibilities. So why not broaden that concept to include more of society?


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