Former Attorney General Allyson Maynard-Gibson.
AMID growing concern that the fourth Constitutional Amendment Bill could lead to same-sex marriage if passed in next month’s referendum, the Office of the Attorney General released a statement last night to allay those fears.
The statement said it is not possible for judges to interpret bill four as giving people the legal right to same-sex marriage in the future.
“While it is the role of judges to interpret the Constitution and statutes, they must do so according to established legal rules,” the statement said.
“They are not free to ignore the language of the amendment or the will of Parliament.
“In the case of amendment four, Parliament made sure to define ‘sex’ as ‘male or female’, so no future court could interpret ‘sex’ as ‘sexual orientation’.
“And members of Parliament stated on the record, repeatedly, that their only intent in passing these amendments was to give men and women equal rights.”
The fourth bill seeks to end discrimination based on sex from the Constitution, by inserting the word “sex” into Article 26. However several groups, pastors and even politicians oppose this bill and have accused the government of trying to advance the gay “agenda” under the guise of gender equality. The other three bills deal with issues of citizenship.
In response to the argument that amendment four could be used to “overrule the Bahamian law that says marriage is between a man and a woman”, the statement from the Office of the Attorney General said this bill cannot change the Matrimonial Causes Act.
“The Matrimonial Causes Act says that in the Bahamas, in order to be legal, a marriage must be between a man and a woman. Nothing in amendment four could or would change this law.
“Amendment four would prevent new laws and action by the state that discriminates against men and women, but it would not affect the Matrimonial Causes Act because it is a pre-independence law that was expressly ‘saved’ by the Constitution. Article 26(4)(c) of our Constitution states that the non-discrimination provisions of Article 26 do not apply to laws from before 1973.”
Some staunch opponents of bill four believe if a case in support of gay marriage is taken through the courts all the way to London’s Privy Council, this country’s highest court of appeal, the English court would rule in the favour of same-sex marriage.
However, the statement dismissed this theory as well.
“Although nearly every country in the Commonwealth already has the right to non-discrimination on the basis of ‘sex’ in their Constitutions, the Privy Council has never interpreted this provision to create a right to same-sex marriage in any of those countries for which it remains the final court of appeal.
“All countries in the Commonwealth that do allow same-sex marriage have very different constitutional provisions from the Bahamas or passed specific laws permitting it.”
The statement also addressed worry that the fourth bill would allow transgender people to marry those of the same gender they were assigned with at birth.
“Sex in amendment four is defined as ‘male or female,’ and that means male or female at birth. There are settled cases in the United Kingdom and the Commonwealth that state that the law only recognises a person’s sex at birth for the purposes of marriage. Thus, a person born a male cannot marry another person born a male. What matters is what is on your birth certificate.”
The Office of the Attorney General urged people to attend the public information sessions being conducted by the Constitutional Commission.
The referendum is set for June 7.