Two same-sex couples are expected to apply to wed in Bermuda in the coming days and are likely to appeal directly to the courts if they are not given permission to marry.
The couples — one female and one male — will be represented by former Attorney-General Mark Pettingill, the lawyer and MP who has vowed not to rest after last week’s referendum result until there are equal human rights for all.
The marriage applications and the likely court proceedings that could follow may settle the same-sex marriage issue without legislators getting involved, as many have predicted. The referendum on June 23 failed to officially answer whether Bermudian voters were for or against same-sex marriage or civil unions, as the turnout was less than 50 per cent.
Mr Pettingill told The Royal Gazette he could not comment on the “anticipated” marriage applications but said: “I have always believed that marriage is a legal issue and not a religious issue. I believe that in light of that, it’s a matter that will be best addressed by the courts.
“Consequently, I take the view that the Human Rights Act has primacy and that the Registrar[-General] must provide services in accordance with the Marriage Act.”
The Marriage Act requires the Registrar-General to post notice of any intended marriage in the Registry-General for two weeks and to advertise the nuptials in a newspaper within three days of receiving notice of it.
Mr Pettingill previously represented a different couple, Bermudian Ijumo Hayward and his American partner, Clarence Williams III, when they applied to wed here in December.
The One Bermuda Alliance backbencher sent a covering letter with their application to Registrar-General Aubrey Pennyman, which said if their intended marriage was not advertised in accordance with the law, the couple would seek a Supreme Court order to force him to perform his statutory duty.
Mr Pennyman did not issue the required notices and Mr Pettingill was told that the Registrar was taking advice from the Attorney-General’s chambers. Mr Hayward and Mr Williams are already married in the United States and it is understood that their application is unlikely to proceed any farther.
The two new couples to be represented by Mr Pettingill are not married and are likely to argue, if their cases come to court, that the Registrar-General is in breach of the Human Rights Act for denying them “goods, facilities or services” based on their sexual orientation.
But the timing of any court proceedings relating to their applications could be critical since the Bermuda Government has already tabled legislation — an amendment to the Matrimonial Causes Act — which would allow discrimination on the basis of sexual orientation in relation to weddings.
The proposed amendment, which is on the order paper of the House of Assembly, would remove the supremacy of the Human Rights Act in relation to section 15 of the Matrimonial Causes Act, which says a marriage is void if the parties are not male and female.
Michael Dunkley would not comment yesterday on whether the Government would proceed with that piece of legislation, or with the draft Civil Union Act 2016, which was tabled for consultation purposes in February.
The Premier told this newspaper: “I and my parliamentary colleagues continue to deliberate on [the] matter.”
The turnout for the referendum was 46.89 per cent, meaning the two questions on the ballot paper were deemed to be unanswered. Of those who voted, 69 per cent were against same-sex marriage and 63 per cent were against same-sex civil unions.
Mr Dunkley said last week of the referendum: “Any outcome is the will of the people and will guide their elected officials accordingly. As we have said in the town hall meeting[s], if there is a ‘no’ vote, it will potentially open up challenges in the courts and the courts will ultimately decide.”
Mr Pettingill, meanwhile, told Parliament on Friday: “I won’t rest until this issue is addressed.”
• To read the Matrimonal Causes Amendment Act and the Civil Union Bill, click on the PDF links under “Related Media”