The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

COURT of Appeal President Dame Anita Allen should recuse herself from potential cases about same-sex marriage in the future, Marco City MP Greg Moss said yesterday, arguing that in her speech this week she displayed an “activist” mindset that is prejudiced against the status quo.

Delivering the eighth Annual Eugene Dupuch Distinguished Lecture on Tuesday night, Dame Anita said the laws of the Bahamas do not conclusively prohibit same-sex marriage.

She drew particular attention from opponents of the recent Constitutional Referendum when she called on the country to reconsider its traditional views about marriage.

Among other things, Dame Anita said a statutory provision clarifying that gay marriage is prohibited in The Bahamas may be

necessary to conclusively rule out same-sex unions.

Responding yesterday, Mr Moss said: “My starting position is she must prepare to recuse herself from any application that comes before her because clearly she has a fixed view on this and that’s unfortunate. You cannot give that kind of lecture and then at the end of it say you haven’t made up your mind. You clearly have an activist view toward what should happen in this country.

“There are people who have an activist approach to causing the laws of the Bahamas to allow for same-sex marriage and who are antagonistic towards the expression of the will of the people in the referendum that just happened. To the extent that public policy of the Bahamas is meant to be a reflection of the will of the people, then in that referendum just held last week the will of the people and the public policy of the Bahamas must be interpreted in a way that precludes same-sex marriage.”

Regarding a statutory provision clarifying marriage entitlement in the country, Mr Moss said he does not believe it is necessary, but that it would be prudent for legislators to include such a provision in the law and eventually in the Constitution.

“It’s clear marriage is between men and women,” he said. “Common law defines man and woman as being determined by a biological test. Had we put sex in Article 26 (of the Constitution) that would have changed the common law. That said, with the activist agenda that we see out there, it would be prudent to make that clear, to start that process of making that clear by a simple statute which would have the effect of determining what the law of the land is in advance of any challenge to suggest that that law of the land is contrary to the Constitution.”

Paul Moss, a lawyer connected to one of the referendum’s vote ‘no’ campaigns, also said yesterday that Dame Anita’s comments about marriage were “wholly inappropriate”.

“As a sitting judge, her opinion should be confined to herself and not the public,” he said in an email to The Tribune.

“She has voiced an opinion and sought to give credence to the voices of the ‘yes’ vote campaign. As a member of the bench, this is non-conventional as any matter of this nature that may come before a panel that sits on, her recusal is required.”

During her speech at the British Colonial Hilton, Dame Anita emphasised that she was giving her personal opinion and was not presenting views endorsed by the Court of Appeal.

“We are now a multi-cultural and multi-faith society, in which many do not ascribe to Judeo-Christian beliefs,” Dame Anita said.

“And in determining the way forward it may well be necessary to give serious consideration to whether there is any longer any reason why the contours of contemporary secular marriage should continue to be shaped by Judeo-Christian doctrine ... Why should sexual orientation or gender identity deprive two consenting adults of the right to enter into a contract of marriage?”