Sean McWeeney QC, chairman of the Constitutional Commission, with Attorney General Allison Maynard-Gibson as the House of Assembly debated bills for constitutional reform.
Constitutional Commission Chairman Sean McWeeney, QC, replies to Pastor Dave Burrows, of Bahamas Faith Ministries International, seeking to quell concerns about the Constitutional Referendum.
IN reference to your open letter to the Prime Minister (which you kindly copied to me), I’m wondering whether you have fully considered the implications of a no vote on bill number four.
Let’s assume that Dame Joan Sawyer and Fred Smith, QC, are correct that Article 15 of the Constitution already provides protection against discrimination based on sex. Article 15, it will be recalled, includes “sex” as a specific, albeit undefined, ground in relation to fundamental rights, along with race, place of origin, political opinions, colour and creed. (Article 26, by contrast, mentions all these latter grounds but does not include “sex”. Indeed that is precisely what bill number four aims to add).
Let’s also assume that what Greg Moss and others in the no campaign have been saying is correct, namely, that the word “sex”, if left undefined, may end up being interpreted by the courts as including sexual orientation. If that were to happen, the argument goes, same-sex couples could then claim that the ban on same-sex marriage under the Matrimonial Causes Act discriminates against them based on sex and that it must accordingly be struck down as unconstitutional, leaving them free to marry.
So, if you accept those assumptions, the choice you face when you go into the voter’s booth on June 7 is this: either vote yes to bill four so that the word “sex” can be added to Article 26, along with a definition of “sex” as “meaning male or female” (not straight, lesbian or gay or any other term of sexual orientation).
Or vote no to bill four, thereby leaving the Constitution exactly as it is. You will still have the word “sex” in Article 15 and it will still be undefined. And if the “no” advocates are correct that the word “sex”, if left undefined, could end up being defined by the courts as including sexual orientation, then same-sex marriage might end up being let in through the very door you thought you were closing by voting no to bill number four!
Once again, do you vote yes to the addition of the word “sex” in Article 26 along with a definition of “sex” that limits its meaning to “male or female”, or do you vote no, thereby leaving the law unchanged, thereby leaving the courts free to define the word “sex” in Article 15 as including sexual orientation so that same sex couples might then have the same protection under the law that straight couples have (including the right to marry)?
The irony here seems to have escaped the no advocates. They seem not to appreciate that if their own arguments and assumptions are correct and if they succeed in defeating bill 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.
Be that as it may, the truth of the matter is that the arguments and assumptions of the no campaign are wrong to begin with, dead wrong!
Firstly, Article 15 does not, in point of law, give any protection against discrimination based on sex (or any other ground for that matter). The Privy Council has consistently held that Article 15 does not create enforceable legal rights; that instead it is only a preamble. (Newbold v Commissioner of Police [2014] UKPC 12 at paragraphs 27 to 33; Campbell-Rodriques v Att Gen [2007] UKPC 65 at paragraph 12.)
Secondly, Article 26, in contrast to Article 15, is the constitutional provision that creates enforceable rights to redress discrimination. However, discrimination based on “sex” is not included in Article 26. Bill number four seeks to correct this by adding it as a ground. In doing so, however, bill four aims to tie the court’s hands when it comes to interpreting what sex means. “Sex” is therefore defined in bill four as “meaning male or female”. This precludes other definitions - based on sexual orientation - from being applied.
By extension, it would also preclude claims of discrimination based not on sex (male vs female or female vs male) but on sexual orientation (eg where two people of the same sex claim an entitlement to marry). The latter type of claim would not be covered by the definition of “sex” in bill four and thus a claim based upon it would fail.
Thirdly, the existing ban on same-sex marriage in the Matrimonial Causes Act will be constitutionally sanctified, as it were, if - but only if - bill four is approved by a yes vote in the referendum. Art. 26 (4) (c) already provides that discrimination in relation to “marriage” laws is permissible but at present this only applies where the marriage law in question discriminates based on “race, place of origin, political opinions, colour (or) creed”. These are the only grounds that the anti-discrimination provisions of Article 26 can apply to at present. However, if “sex” were to be added as a ground (as it will be if bill four passes), it would mean that marriage laws that discriminate based on sex would be constitutionally permissible as well. The Matrimonial Causes Act is such a law. Accordingly, its prohibition of same-sex marriage would be constitutionally embraced if “sex” is added as a ground under Article 26, as proposed by bill four.
Bottom line? Bill four, if it becomes law, will not open the door to same-sex marriage. 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.
Finally, returning the spotlight to where it really should be, what bill number four will accomplish is this: it will give women a right to go to court to obtain justice where a law treats them less favourably than men; and conversely, it will give men the right to go to court to obtain justice where a law treats them less favourably than women.
If anyone has a problem with that, he should vote “no’. If he doesn’t have a problem with it, you should vote “yes”.
When you shut out all the noise, bill number four is as simple as that.
Comments
hallmark 7 years, 10 months ago
John 10:7 - Jesus said, "I AM THE GATE."
croberts6969 7 years, 10 months ago
I have a lot of respect for Mr. McWeeney, QC but I am unsure of the point he is trying to make. No matter what happens with Bill 4, the government could legalize gay marriage tomorrow with a simple act of parliament. Bill 4 will not help or impede this fact. Defining sex as male or female does not strengthen any argument against gay marriage. If a man wants to marry a man that would squarely fall within that definition. Both parties involved are a male or female. Just so happens they are both male. But for the Marriage Act there is nothing in law or the constitution that prevents gay marriage. But for the proviso in the constitution that allows discrimaitiin on matters of marriage the Marriage Act would be unconsituional if Bill 4 passes as a man wanting to marry a man would be discriminatory based on their sex being male or female.
viewersmatters 7 years, 10 months ago
why havent anyone tried to challenged same sex marriage act if the gates are already opened? maybe if we have a fair public knowledge most people would not be as confused as they are. surely if you add no discrimination into the constitutional this would no doubt have to bring new changes to the law and if sex is a male OR female but not a male and female if a male willing to marry a male or female wanting to marry a female wouldnt the constitutional grant them legal rights because rather they are a male who wants to get marry or a female they can not be discriminated being marry base on the sex that they are? sex being define as a male or a female clearly and no doubt mean rather your a male or rather your a female it would be unlawfully to discriminate, but if it rejects sex to be of the same sexual organs based at birth then we would surely know that gate wouldnt be opened.
Well_mudda_take_sic 7 years, 10 months ago
No righted minded Bahamian would ever a trust a word coming out of the mouth of smooth talking disingenuous Sean McWeeney. The corruption running rampant in our country today is directly attributable to this despicable man's willingness to do the bidding of the corrupt Christie-led PLP government no matter what its hidden and hideous agenda may be. Here are the facts McQueeney doesn't want voters to know. The amendment proposed by Bill#4 would prevent discrimination of any kind based on the word "sex" which means our parliamentarians would then be free to legislate same-sex marriages with the simple stroke of their pen once the courts latch on to the word "sex" (aka sexual orientation) in their rulings against discrimination. This is why the corrupt Christie led-PLP government and the detestable likes of Sean McWeeney, Rubie Nottage, Sharon Wilson, Lynn Holowesko, etc. have steadfastly refused to support the drafting of 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. Most Bahamians now know they need to do the right thing and vote a resounding "NO!" on June 7th to all four of the proposed amendments given that each of them contains serious flaws of one kind or another that would prove most harmful to our society and way of life.
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