April 17, 2016
Some of the people against question four on the ballot for the June 7 constitutional referendum are not genuinely concerned about the amendment possibly leading to same-sex marriage, but are in their hearts opposed for another reason, which they simply are too embarrassed to admit, according to former Attorney General Sean McWeeney, who chaired the Constitutional Commission.
"My own view fundamentally is that this is a smokescreen," McWeeney told National Review on Saturday.
"I think there are a lot of people in this country who just do not accept the fundamental truth that men and women are equal, but I think they're too embarrassed to say it, so they look for an issue like same-sex marriage to hang their hat on. That's my honest view."
McWeeney did not reference any group in particular, but he said it is unfortunate that what was intended to be a debate on gender equality has morphed into a debate on same-sex marriage.
On the weekend, a group of pastors expressed concerns about question number four, which would make it unconstitutional to discriminate against someone based on sex -- sex being defined as male or female.
"We see this as opening that door [to same-sex marriage]," said Pastor Mario Moxey of Bahamas Harvest Church.
"Once we allow this to happen, as you know, our high courts are not in The Bahamas. Our high courts are in England where the social philosophy in England right now is they're very liberal and they're proponents of same-sex marriage, so there is no doubt in our own hearts and minds about whether they would rule in favor of same-sex marriage."
The proposed amendment was one of the recommendations made by McWeeney's commission, which reported in 2013.
While the government adopted that recommendation -- recommendation 24 -- it did not adopt an accompanying recommendation.
Recommendation 25 states, "As a corollary to the recommendation at 24, the commission also proposes that an amendment be made to Article 26(4) to provide that no law which makes provisions prohibiting same-sex marriage or which provides for such marriages to be unlawful or void shall be held to be inconsistent with the constitution".
Asked why the government ignored recommendation 25, McWeeney said the commission's report is not the Holy Writ.
"People elevate this almost as if it's the Holy Bible," he said.
"They interpret it quite literally and strictly, but the fact of the matter is these are just recommendations. That's the first thing to note. These are recommendations.
"The only reason we put that in there is because there were some people in the community who were really troubled by this whole same-sex marriage thing, and they wanted something that would go the extra mile, as it were, to meet their concerns because they were concerned that the word 'sex' might encompass sexual orientation."
McWeeney insisted, "We're still meeting those concerns; we just took a different approach.
"What the bill number four ended up doing is including a definition of 'sex', which was not a part of the original recommendations, but it covers the same ground because 'sex' is being defined as meaning male or female and that implicitly precludes sexual orientation."
McWeeney also pointed out that his commission did not have the benefit of a legal opinion of prominent UK barrister Michael J. Beloff, QC.
In his opinion which the attorney general received subsequent to the commission's report, Beloff said, "I do not consider that the proposed amendment to Article 26 raises the prospect of a constitutional right to same-sex marriage for several reasons.
"First, discrimination on the grounds of sex is distinct from discrimination on the grounds of sexual orientation."
He then outlined a number of decisions supporting this point.
Beloff concluded that the denial of the right to marry to same-sex couples is discrimination on the grounds of sexual orientation.
He said, "Discrimination on grounds of sexual orientation is not prohibited by the Constitution of The Bahamas, nor will it be if the amendment is enacted."
Beloff said unless and until the Bahamian legislature chooses to enact laws legitimizing same-sex marriages, such marriages will not be recognized in law in The Bahamas.
McWeeney told us it is regrettable that the approaching referendum has developed into a debate on same-sex marriage.
"We have all along thought that this should not be converted into a debate on same-sex marriage because it's a phony issue; it's a phantom issue," he said.
"Nobody came before the commission and recommended same-sex marriage, not a single soul, not in person or in writing.
"This is supposed to be a referendum on a very simple question: Do you believe that men and women should be treated equally under the law, such that it should be constitutionally unlawful to discriminate against a male because he is a male or discriminate against a female because she's a female?
"Same-sex marriage goes beyond that. That's not within this thing. Same-sex marriage raises the question based on sexual orientation and that is not a protected ground (in the constitution).
"It has never been a protected ground. It is not a protected ground now and it won't be a protected ground if bill number four goes through."
But the government, which is pushing a yes vote with the backing of the Official Opposition, might have a difficult time convincing some people of this.
"I had a meeting with my church and laid things out and I didn't do a head count, but the spirit in the room is 'absolutely not' for bill number four," said Pastor Lyall Bethel of Grace Community Church.
"We had our legal team present. We had observations given from around the country and our congregation felt better informed rather than only hearing one side. They felt, no.
"The only thing to do with the ambiguity with that word 'sex' being thrown around is no is the safest vote to vote."
McWeeney thinks that even if recommendation 25 is incorporated in the referendum, there is a segment of the electorate who would never support question four.
"I can absolutely assure you that the great majority of people who are now out there agitating over this issue, that there is no formulation that would meet with their satisfaction," he said.
"I think the problem is that there is great distrust, this suspicion, paranoia in my view, that there is some kind of LGBT international agenda or some conspiracy, and this is all a part of it, so if that's your starting point, no matter what language someone comes up with you're going to find fault with it."
Guardian Managing Editor
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