By NICO SCAVELLA
Tribune Staff Reporter
A VOTE against bill four may actually make it “easier to overturn the existing legal ban on same-sex marriage,” according to Constitutional Commission Chairman Sean McWeeney who has hit out at the “irony” of arguments launched by opponents of the fourth Constitutional Amendment Bill.
His comments were outlined in a letter addressed to Bahamas Faith Ministries International Senior Pastor Dave Burrows, dated May 23, 2016.
Mr McWeeney, QC, suggested that if those against bill four ultimately succeed in having it defeated, “it may indeed become a little easier – certainly not harder” for same-sex marriage to become law, something he said would be “a classic case of having to be careful about what you wish for.”
He said bill four seeks to “tie the court’s hands” when it comes to interpreting what “sex” means in the Constitution, to be defined as “meaning male or female.” And that definition, Mr McWeeney said, precludes other definitions of the word– including sexual orientation – from being applied. He also said that bill four, by extension, would also preclude claims of discrimination based not on sex, but on sexual orientation, that is, where two people of the same sex claim an entitlement to marry.
Furthermore, Mr McWeeney explained that the existing ban on same-sex marriage contained in the Matrimonial Causes Act will be “constitutionally sanctified” if bill four is approved by a “yes” vote in the referendum. He also said the law’s prohibition of same-sex marriage would be “constitutionally embraced” if “sex” were to be added as a ground under Article 26 as proposed by bill four.
To support his argument, Mr McWeeney referred to previous assertions by Dame Joan Sawyer and attorney Fred Smith, QC, both of whom have suggested that Article 15 of the Constitution already protects individuals from discrimination on the basis of sex, and as a result, a legal path to same-sex unions is already present.
Mr McWeeney said if Dame Joan and Mr Smith were correct in their assertions about Article 15 and the word “sex” is left undefined, it may end up being interpreted by the courts as including sexual orientation and consequently lead to same-sex marriage. He said then same-sex marriage “might end up being let in through the very door (opponents) thought they were closing by voting ‘no’ to (bill four).”
“The irony here seems to have escaped the ‘no’ advocates,” Mr McWeeney said. “They seem not to appreciate that if their own arguments and assumptions are correct and they succeed in defeating bill number four, they may actually be making it easier for same-sex marriage to become law, not harder: a classic case of having to be careful about what you wish for. You just might get it. Only later do you discover that it had exactly the opposite effect to what you thought you were getting.”
With regards to the Matrimonial Causes Act, Mr McWeeney said Article 26 (4)(c) of the Constitution already provides that discrimination in relation to “marriage” laws is permissible but at present it only applies where the marriage law in question discriminates based on “race, place of origin, political opinions, colour (or) creed.” However, he said if “sex” were to be added as a ground, it would mean “that marriage laws that discriminate based on sex would be constitutionally permissible as well.”
“Bottom line? (Bill four), if it becomes law, will not open the door to same-sex marriage,” Mr McWeeney said. “Not even a little bit. But if it does not become law, it may indeed become a little easier – certainly not harder –“to overturn the existing legal ban on same-sex marriage.”
The referendum is slated for June 7.