The Tribune

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.