By NICO SCAVELLA
Tribune Staff Reporter
nscavella@tribunemedia.net
A VOTE against bill four may actually make it “easier to overturn the existing legal ban on same-sex marriage,” according to Constitutional Commission Chairman Sean McWeeney who has hit out at the “irony” of arguments launched by opponents of the fourth Constitutional Amendment Bill.
His comments were outlined in a letter addressed to Bahamas Faith Ministries International Senior Pastor Dave Burrows, dated May 23, 2016.
Mr McWeeney, QC, suggested that if those against bill four ultimately succeed in having it defeated, “it may indeed become a little easier – certainly not harder” for same-sex marriage to become law, something he said would be “a classic case of having to be careful about what you wish for.”
He said bill four seeks to “tie the court’s hands” when it comes to interpreting what “sex” means in the Constitution, to be defined as “meaning male or female.” And that definition, Mr McWeeney said, precludes other definitions of the word– including sexual orientation – from being applied. He also said that bill four, by extension, would also preclude claims of discrimination based not on sex, but on sexual orientation, that is, where two people of the same sex claim an entitlement to marry.
Furthermore, Mr McWeeney explained that the existing ban on same-sex marriage contained in the Matrimonial Causes Act will be “constitutionally sanctified” if bill four is approved by a “yes” vote in the referendum. He also said the law’s prohibition of same-sex marriage would be “constitutionally embraced” if “sex” were to be added as a ground under Article 26 as proposed by bill four.
To support his argument, Mr McWeeney referred to previous assertions by Dame Joan Sawyer and attorney Fred Smith, QC, both of whom have suggested that Article 15 of the Constitution already protects individuals from discrimination on the basis of sex, and as a result, a legal path to same-sex unions is already present.
Mr McWeeney said if Dame Joan and Mr Smith were correct in their assertions about Article 15 and the word “sex” is left undefined, it may end up being interpreted by the courts as including sexual orientation and consequently lead to same-sex marriage. He said then same-sex marriage “might end up being let in through the very door (opponents) thought they were closing by voting ‘no’ to (bill four).”
“The irony here seems to have escaped the ‘no’ advocates,” Mr McWeeney said. “They seem not to appreciate that if their own arguments and assumptions are correct and they succeed in defeating bill number 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.”
With regards to the Matrimonial Causes Act, Mr McWeeney said Article 26 (4)(c) of the Constitution already provides that discrimination in relation to “marriage” laws is permissible but at present it only applies where the marriage law in question discriminates based on “race, place of origin, political opinions, colour (or) creed.” However, he said if “sex” were to be added as a ground, it would mean “that marriage laws that discriminate based on sex would be constitutionally permissible as well.”
“Bottom line? (Bill four), if it becomes law, will not open the door to same-sex marriage,” Mr McWeeney said. “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.”
The referendum is slated for June 7.
Comments
jackbnimble 8 years, 6 months ago
If voting No opens the door, I'm curious to know why gays haven't tried before this point to challenge the constitution and get married. I'm sure they have intellects among them. But I guess the light bulb just came on after the proposed referendum.
sheeprunner12 8 years, 6 months ago
This is a classic "muddy the waters" argument ........... have fun Vote YES ........ the Gay Agenda is going down in flames on June 7 .......... get your case ready for the Supreme Court!!!!!
Sickened 8 years, 6 months ago
Is this the same Sean McWeeney who headed the Constitution Commission which suggested on page 37 of their report:
25.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.
Surely their suggestion above would have closed the door and Bill 4 opens that door???
B_I_D___ 8 years, 6 months ago
Well...we know voting 'No' to the gambling surely got twisted around in a big damn hurry to suit their (government) needs...not surprising that it is already coming to light that no matter which way we vote we will likely get slapped in the face with some legal angle that no commoner was privy to or informed about.
licks2 8 years, 6 months ago
I won't waste time with this man. . .he may be top notched lawyer. . .but now he is being a poor reasoned. . .or he choses not to tell the truth! Yall need to remember this man is not a litigator. . .
Publius 8 years, 6 months ago
This is a legally unsound argument put forward by Mr. McQweeny. But what does it matter. Whether it is sound or not, nothing about the way many Bahamians see each individual Bill even comes close to resembling sound thought.
EasternGate 8 years, 6 months ago
Vote No!
SP 8 years, 6 months ago
Constitutional Commission Chairman Sean McWeeney *STFU*
No one believes anything out of your lick ass breath face.
Nuff said!
Baha10 8 years, 6 months ago
The only irony here is how someone so intellectually starved could be appointed AG and then made a QC ... alas politics, which in turn explains this backward "D" average reasoning and why we will never solve our current issues as long as these Relics are given a voice and positions of influence.
ThisIsOurs 8 years, 6 months ago
No law will change attitudes, just listen to insufferable puffed up MPs who refuse to listen to women with CFAcertifications. These men smiling and talking about vote yes are ridiculous. They wouldn't know equal rights if it hit them in the left rounder.
What we really need is for them to tell us what they planning on selling off next.
Economist 8 years, 6 months ago
The "no Sayers" need to read the Constitution carefully. They also need to read the cases and what the judges actually said and how they ruled.
Yup, you will need to read, read, read......and comprehend what is there. It is not easy and expect it to take 5 to 10 minutes per page.
But stop making all your silly comments and become truly educated on the subject.
Also , if you have not read the Constitution from front to back, don't write anything because you clearly don't know what you are talking about.
Well_mudda_take_sic 8 years, 6 months ago
As an "Economist" you should devote more time to telling us under employed and unemployed Bahamians why you think things are going to get better for us when thousands and thousands of foreigners are given Bahamian status and come to our shores as a result of the four proposed amendments to our constitution. Many of us Bahamians and our children go to bed hungry every night and go without medicines we need, and have inadequate clothing, shoes with worn soles, etc. not to mention our inability to pay for so many other basic necessities of life; meanwhile the political elite go about squeezing the life out of us just to give citizenship for votes!!!! Come on man, we have had enough!
Economist 8 years, 6 months ago
First of all the thousands that you are so scared of are already here and working.
Secondly, when you make someone a Resident or a Citizen they will be paying the taxes that they are not now because they are not legalized.
Thirdly, as they will have a permanency in The Bahamas they will feel that it is safe enough for them to invest and keep their money in The Bahamas, instead of sending their earnings out of the country.
Fourthly, with all of that they will probably boost the economy and job opportunities for many the unemployed of whom you speak.
There is much more but the above should suffice.
Reality_Check 8 years, 6 months ago
"Economist", your very transparent attempt at the use of reverse psychology only galvanizes the "No" voters. We Bahamians are not as stupid as you or Sean McWeeney would like to think!
Well_mudda_take_sic 8 years, 6 months ago
Bahamians had better mark their "X" on the ballot next to the picture of the gate, as it represents (1) the gate to keep thousands of foreigners (wanting Bahamian status) out of our country and (2) the gate to keep same-sex marriages from happening in our country! The corrupt Ingraham-led FNM and Christie-led PLP governments of the past three decades think we are all fools. Even though many of us are either unemployed or under employed, our corrupt government is now hell bent on granting thousands of foreigners Bahamian status in exchange for their vote down the road. We can't afford to let this happen. Bahamians must show up at the polls on June 7th and vote a resounding "NO!" to all four of the proposed amendments to our constitution. Remember....just mark your "X" next to the picture of the gate on your ballot. You must vote "NO" otherwise you and your family will really be sorry when the wave of foreigners come to our shores to take your job for less pay!
Well_mudda_take_sic 8 years, 6 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.
Economist 8 years, 6 months ago
Read Article 10. Think on who is a Bahamian person. A Bahamian person can be a man or a woman.
Answer this, can a Bahamian woman who marries a foreign woman get her spouse Bahamian citizenship?
Read the comments in the paper made by Fred Smith about same sex marriage.
Your "no" well may in fact be "yes" to same sex unions, not to mention citizenships you don't want.
Reality_Check 8 years, 6 months ago
"Economist", your very transparent attempt at the use of reverse psychology only galvanizes the "No" voters. We Bahamians are not as stupid as you or Sean McWeeney would like to think!
Zakary 8 years, 6 months ago
Don't you all get tired of writing the same stuff over and over again? People will simply vote how they want to vote.
hallmark 8 years, 6 months ago
On June 7 I will be voting the WORD. Jesus says in John 10:7: I am the GATE. Amen
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