Dear Pastor Dave:
I now reply to the supplementary questions raised in your e-mail to me of June 1st but, first, allow me once again to express my appreciation to you for the measured and balanced manner in which you have dealt with the issues throughout this process. I’m particularly glad that you have raised these new questions as they are, I know, on the minds of many voters at this time. For this reason, I hope that you will allow me to share my answers more widely so that they can be of some small assistance to others as well.
I turn now to your questions which are reproduced verbatim in bold type below.
1. Why was recommendation 25 not accepted since it is THE central issue of concern to Bahamians and the very commission appointed to study the issue made the recommendation.
Let me say at the outset that the Commission’s Report does not profess to be Holy Writ. It is not infallible. It does not contain commandments, only recommendations. And even these are not engraved in stone. They were not intended to be slavishly followed. On the contrary, as our Report makes plain, certain of the Commission’s recommendations were the subject of internal disagreements and clearly called for further analysis and consideration. One such recommendation was recommendation 25 which is central to your present question.
In answering this question, permit me, firstly, to refer to para 15.63 of the Commission’s Report where the following statement appears:
“It should be noted, however, that the Commission was not unanimous in making the foregoing recommendation (viz. recommendation 25), as it was felt by several Commissioners that existing provisions in the Constitution (namely, Article 26 (4) (c) already give constitutional protection to laws prohibiting same sex unions (e.g. Matrimonial Causes Act, s.21 (1) (c)).”
After its Report had been submitted to the Government and simultaneously to the general public as well, the Commission resolved itself into smaller technical and public education committees.
Having done so, the Commission entered a new, and more technical, phase of its work, centred on the preparation, in conjunction with the drafting experts in the Office of the Attorney General, of the bills that would amend the Constitution. This work necessarily involved renewed consideration and technical analysis of the recommendations contained in the Report insofar as they were relevant to the matter of gender equality. (Note: gender equality, at the insistence of the Opposition, had been selected by the political directorate as the sole subject of the first round of constitutional reform).
However, the more the Commission examined recommendation 25 during this later and more technical phase of its work, the more the Commission became convinced that this recommendation was not, in fact, saying anything that was not already the constitutional position. Moreover, as this position was not going to be changed with the introduction of “sex” as a ground of discrimination under Article 26, the Commission concluded that recommendation 25 was really quite unnecessary after all.
More specifically, the Commission, in overseeing the preparation of the actual bills that would constitutionalize gender equality, concluded that Article 26 (4) (c) already did the work that recommendation 25 would have been aiming to do. In coming to this revised position, the Commission had effectively come round to the alternative view that had been expressed in para 15.63 of its Report (as set out above). This made the implementation of recommendation 25 unnecessary.
The correctness of this alternative view was later validated by the formal legal opinion of Lord Beloff QC, former President of Oxford University, and arguably the foremost constitutional lawyer in the United Kingdom and the Commonwealth.
The Beloff Opinion (which I shared with you earlier and has since been widely publicized) had been obtained by the Office of the Attorney General after Gregory Moss MP had argued in the House of Assembly, during the debate of the four Constitutional amendment bills, that Bill no 4 would open the door to same-sex marriage. (This, of course, was well after the Commission had issued its Report).
The Attorney General, understandably, was concerned to have the Moss arguments studied closely and opined upon at the highest expert level of the constitutional bar in the UK and Commonwealth. Lord Beloff was the constitutional expert recommended by the Government’s solicitors in London.
Lord Beloff, in his Opinion, demonstrated that Mr. Moss’s arguments were unsound and without merit. He completely dismissed Moss’s conclusion that Bill no. 4 would open the door to same-sex marriage. It would do no such thing, Lord Beloff concluded unequivocally. He pointed out that Moss had confused “sex” with “sexual orientation” and that while Bill no 4 would protect discrimination based on “sex” it would not do so at all in relation to sexual orientation. He pointed out, moreover, that the statutory prohibition in The Bahamas against same-sex marriage was discriminatory not on the ground of sex but rather on the ground of sexual orientation and accordingly Bill no 4, which was limited to discrimination based on sex, would not displace or disturb the existing ban on same sex marriage.
In refuting Mr. Moss’s arguments, Lord Beloff also made exactly the same point that had been made much earlier by the Commission at para 15.63 of its report (see above) when the alternative to recommendation 25 was stated, namely, that the Constitution already provided full protection against same-sex marriage in the form of Article 26 (4) (c) and this protection would not be removed or compromised in any way by Bill no. 4.
Article 26 (4) (c) of the Constitution, it will be recalled, gives Parliament the right to pass laws that discriminate in relation to various things, including “marriage”. The Matrimonial Causes Act is such a law. And in this law (at s. 21 (1) (c)) there is explicit discrimination against persons of the same sex. It says that they can’t marry each other. It says that if they purport to marry each other the so-called marriage will be void and of no effect.
However, what Article 26 (4) (c) of the Constitution is saying is that such discrimination is perfectly OK; that it’s OK to have a discriminatory marriage law. This would include, of course, a marriage law that discriminates against same-sex couples by declaring – as indeed our Matrimonial Causes Act declares – that any marriage between two persons of the same sex is a non-starter. It can’t get out of the gate. Instead, it is completely null and void – not voidable, altogether void.
Article 26 (4) (c) is also saying that a constitutional challenge to that statutory prohibition on same-sex marriage would be untenable if it were based on one of the prescribed grounds of discrimination (including “sex” should this be added as a result of Bill no 4 becoming law).
So, Article 26 (4) (c) is the the bulwark that insulates the existing ban on same-sex marriage from constitutional invalidation. It bears emphasis this provision is not being changed in any way whatever by Bill no 4.
The question the Commission had to re-consider in relation to Bill no 4 when it was under preparation was therefore this: if Article 26 (4) (c) already does what was proposed in Recommendation 25, what would be the point in proceeding with that recommendation? If it would not be advancing or strengthening the legal protection against same-sex marriage, what would be the point of including it. In the final analysis, wouldn’t it really amount to no more than a public-relations sop rather than a substantive reinforcement of the existing law under which same-sex marriage is already unlawful?
In addressing that question for the purpose of settling the text of Bill no 4, the Commission became satisfied that recommendation 25 should be abandoned on the ground that Article 26 (4) (c) had already taken care of the problem and that, in fact, there was absolutely nothing that recommendation 25 would be doing to fortify the existing constitutional protection against same-sex marriage. Instead, it would be a case of shutting a door that was already closed.
The Commission advised the Government and Opposition of this revised position and it was on that basis that Bill no. 4 proceeded.
It should be clearly understood that it was the Commission that came to the revised view that recommendation 25 would not serve its intended purpose since that purpose had already been met by Article 26 (4) (c). And it was the Commission that then urged the Government and the Opposition leadership to accept this revised position – as indeed they did.
It is therefore a completely false statement that the Government “rejected” Recommendation 25. On the contrary, the Government – and the Opposition – accepted the Commission’s revised position that the concern that recommendation 25 had aimed to meet had already been effectively resolved by the combination of Article 26 (4) (c) of the Constitution and Section 21 (1) of the Matrimonial Causes Act. This made recommendation 25 completely unnecessary.
Such, then, was the first reason why recommendation 25 was not reflected in Bill no. 4.
The second reason is that the Commission had in any event found another way to skin the cat so as to achieve the same purpose that recommendation 25 had been intended to serve.
Even though the Commission had come round to the view that it was completely unnecessary, as a matter of law, to go with recommendation 25 (reason 1 above), the Commission nonetheless thought that if any additional assurance was needed it could be obtained by accepting a suggestion that your late esteemed predecessor, Pastor Myles Munroe, had urged upon us.
Why not eliminate the anxiety about whether “sex” can mean sexual orientation by inserting a definition of “sex” in Bill no 4 (which was already before the House by this time but not yet passed) that would define “sex” as “meaning male or female”. That way, he argued, you would be precluding a court from applying its own, possibly more libertarian, definition of sex as including straight or gay or trans-gender.
The Commission considered that to be both a wise and elegant solution. And so, that’s what we went with. It had the effect of making recommendation 25 doubly unnecessary.
After all, recommendation 25 had only been intended in the first place to ensure that the insertion of “sex” in Bill no 4 could not result in this word being interpreted as including sexual orientation. If it could be so interpreted, it might lead to constitutional challenges to the ban on same sex marriage under the Matrimonial Causes Act.
But such a challenge could be headed off if “sex” were defined simply as meaning male or female.
And that was precisely what was done. Thus, bill no. 4 now has a definition of “sex” that meets the same concern that had motivated recommendation 25 in the first place, except that the definition in bill no 4 does it so much more efficiently, and more succinctly, than recommendation 25 would have done. Still it comes to the same thing.
The third and final reason for taking a different approach in relation to recommendation 25 was this: the Commission did not want be complicit in what appeared then – and what appears even more so now – to be a hijacking of Bill no 4. This Bill was always only ever intended to say one thing only : that men and women are, in the sight of the supreme law of the land and in the sight of all other laws, equal in every way, such that no law can treat a man better than it treats a woman, and vice versa. That’s all. But instead it has evolved into a debate on same-sex marriage which was never an issue.
The Commission, for its part, felt quite strongly that recommendation 25, quite apart from being both unnecessary (reason 1 above) and capable of being better achieved anyway via the definition of “sex” (reason 2 above), was generally undesirable because it would have taken the focus away from the male-female equality issue that is central to the bill and instead put the focus on marriage. That’s not what this about. We’re trying to correct an historical injustice here, one that reflects the inequality of women in the supreme law of the land. Sure, you can give rights by ordinary legislation but no ordinary law can amend the Constitution where it reflects this inequality. Only an amendment to the Constitution itself can remove the inequality under the Constitution.
Such, then, are the three reasons why recommendation 25 was not proceeded with.
I’m sorry for the length of my answer to your first question but it was important, I think, to set out the reasons as comprehensively as possible. Moreover, having now done so, it should be possible to give fairly concise answers to most of your remaining questions.
2. Why wasn’t the issue of marriage clarified and settled constitutionally before any other bill was presented. It seems very apparent that if this issue was first clarified and satisfied there would be no suspicion or speculation or extensive debate.
This picks up where my last answer left off. This was intended to be a constitutional reform exercise strictly limited to instituting full equality between men and women under the law. That is what the government and Opposition together decided it should be limited to. And indeed that is the common theme of all four bills. The parameters having been thus agreed, other subjects such as marriage were simply not on the radar screen.
Secondly, and more fundamentally, there is no need to clarify or settle the law concerning marriage. The law is as clear as a bell : “marriage is the voluntary union of one man and one woman to the exclusion of all others”(Hyde v Hyde 2 P & D 130 (1866), the leading case at common law which, as per the Declaratory Act of 1799 (Statute Law of The Bahamas), is still the law of The Bahamas in the absence of anything to the contrary in a Bahamian statutory enactment).
That definition of marriage – and it could not be any clearer – is reinforced by S.21 of the Matrimonial Causes Act (ante) which says that a marriage between two people of the same sex is no marriage at all. It is unlawful. It is void. A big, fat legal zero.
Further, as to the meaning of man and woman, or male and female, again the common law, as exemplified by Corbett v Corbett (1972) P. 83 is clear : trans-sexuals are out of luck : if you’re born a man you die a man, and conversely if you’re born a woman you die a woman as far as the law of marriage is concerned. So, if a man surgically “changes” his sex to that of a woman he can still only marry a woman because as far as the law is concerned he is still a man!
Thirdly, given this clarity and consistency of meaning as to what marriage is and isn’t, why is it thought that further clarification is necessary? What is in doubt?
Fourthly, countries around the world are not in the habit of defining social institutions or social compacts, such as marriage, in their constitutions. That is invariably left to ordinary legislation.
Fifthly, as I have already pointed out, our Constitution, via Article 26 (4) (c), already gives Parliament the freedom to pass discriminatory marriage laws without thereby offending the Constitution. And indeed Parliament has already done do by declaring same-sex marriage to be void. This is an acceptable form of discrimination under Article 26 (4) (c) and will remain so if Bill 4 is passed. So where is the problem as far as clarity is concerned?
I suspect, however, that what you may be driving at is putting something in the Constitution that would tie the hands of both Parliament and the courts – especially the Privy Council – such that they would be “locked into” a definition of marriage from which no deviation would be possible.
A number of countries have attempted to do this, most notably the United States where the initiative, however, has been stymied by the failure to get the legislative votes needed to secure a constitutional amendment. I am not aware of any Commonwealth countries with similar constitutional systems that have to date introduced a definition of marriage into their constitutions. Constitutions are generally not the place to define social compacts such as marriage, parent-child relationships, and so on.
However, I take your point. I just don’t think a case exists for it to be done now.
Let me explain what I mean by comparison with similar concerns that have been expressed over the way the Privy Council has effectively ended capital punishment in The Bahamas through a series of decisions. It’s precisely because these decisions were actually made by the Privy Council that it has become virtually impossible to carry out the death penalty in The Bahamas. And because of that, there are now pleas from various quarters for a constitutional amendment that would tie the hands of the Privy Council such that they would have to uphold the death penalty in cases that the Constitution itself would define as “the worst of the worst”. Such a constitutional amendment would also seek to prevent the PC from standing in the way of the imposition of the death penalty where there have been lengthy delays in local court proceedings, etc.
Indeed the Commission itself, in Recommendation 29, recommended precisely such an amendment to our Constitution as well. It did so with a view to tying the hands of the Privy Council such that they would not be able to prevent the death penalty from being carried out in cases declared by the Constitution itself to be “hanging cases”.
It would seem, at first blush, that a similar approach should be be taken in relation to the issue of same-sex marriage by having a constitutional definition of marriage.
However, the difference is this: unlike the death penalty question where the calls for a constitutional amendment were sparked, and continue to be sustained, by actual “real world” decisions handed down by the PC showing that they are hellbent on abolishing the death penalty in The Bahamas, there has been nothing in the jurisprudence of the PC to date to justify any concern that they will be undertaking, or are even thinking about undertaking, a liberalization of our marriage laws such as to make same-sex marriage possible.
That this has been a complete non-event to date makes a pre-emptive constitutional amendment inadvisable, not least because you wouldn’t even know how or where to mount a proper defence to an attack that has not come and indeed may never come.
In the death penalty cases, we would know how to frame a constitutional amendment because the decisions handed down by the PC give us a clear and detailed roadmap. But in the case of the marriage issue there is nothing that has come out of the Privy Council that would give any real clue as to whether and if so how how they would frame their invasion.
Until or unless it happens, I really don’t think a constitutional amendment would be an advisable thing to do.
3. Why proceed with bills knowing that possible controversy lurks ahead because of the marriage issue not being constitutionally clarified?
Please refer to my answers above. I think the law is clear as a bell already.
As to the decision to proceed, that was a political decision made by the Government, with the publicly pledged support of the official Opposition and, I should add, with the unequivocal support of the heads of religious denominations statistically representing the vast majority of the Christian community in The Bahamas.
They all evidently thought that the time to proceed was now.
Moreover, the referendum that will take place just two days from now has been preceded by unprecedented coverage of the entire Bahamas by the Constitutional Commission.
This is a democracy, so controversy is not only inevitable, it is generally good and healthy too. Having said that, neither of us should harbour any illusions about one thing : while religious leaders of integrity like yourself are sincerely motivated in the search for answers, I can assure you, to an absolute certainty, that there are some persons out there for whom nothing in any of the four bills would be acceptable for the simple reason that they do not accept the premise that men and women are equal. This is not something that I am speculating about. I know it to be an incontrovertible fact. Indeed some of these persons have admitted as much publicly and in large group meetings and without the slightest trace of embarrassment either. For such persons, no matter what you come up with they will beat it down. Such persons are fortunately few in number but they are persons of influence all the same.
4. Has it been certified and guaranteed that if presented the privy council will not interpret the word sex according to the what is being speculated (beyond simple male and female as we know them to be originally) based upon their previous actions with regard to the Bahamas request for the resumption of capital punishment and other developments around the world including granting of birth certificates to adults who have had gender alteration surgery and countries now having seven genders to choose from for their citizens?
I have addressed the several parts of this question in the preceding answers so you will forgive me if I do not repeat myself. However, let me be entirely frank with you : no one can give you the “certification and guarantee” you have queried just as you would not be able to come up with, say, a definition of marriage that you could ” certify and guarantee” the Privy Council would not be able to weave its way through. There is never absolute certainty in any matter of any kind that comes before any court. If there was, we wouldn’t need the courts, would we? We could just plug the case into a computer and it would spit out the pre-certified, pre-guaranteed result.
What I can say though is that if Bill no 4 is approved in the referendum and becomes law there is nothing in the jurisprudence of the Privy Council to date that would give me concern that it would open the door to same-sex marriage. As stated in my last letter, I would actually have a greater concern about that happening if Bill no 4 is NOT passed..
5. While it appears that the addition of the word sex being defined as male and female makes our position stronger, does leaving out the words at birth weaken that position and leave a door open for manipulation by legal prognosticators?
Lawyers will always think of something! There is no limit to their ingenuity. That said, for reasons already explained above, defining sex as “meaning male or female” – as proposed in Bill no 4 – would preclude other definitions based on sexual orientation or sexual preference from creeping in. That’s the whole intention of the definition.
Adding the words “at birth” to the definition of “sex” in Bill no 4 (so that it would read “male or female at birth”) would have been aimed squarely at transsexuals. I have already discussed this above but if, for example, a born male were to surgically “change” his sex and present himself as a woman for marriage to another born male, there could be no valid marriage because it would be, in the sight of the law, a case of two born males presenting themselves for a marriage, and such a marriage would be unlawful and void under S. 21 of the Matrimonial Causes Act. As explained in Corbett v Corbett, to which I have already referred, the sex one is born with is, as a matter of law, unchangeable. Accordingly, for the purposes of our marriage law, no account is taken of transsexual changes.
But that is already the law! Corbett v. Corbett makes this clear. Adding the words “at birth” would not make it any easier, nor any more difficult – for a transsexual to marry someone of his own original sex.
Nor would the words “at birth” be of any help at all in relation to what I understand to be the main area of concern, viz., two people of the same unchanged sex presenting themselves for marriage, e.g. two men who are both admittedly and unquestionably male “from birth” and who present themselves for marriage on that basis. How would the addition of the words “from birth” be of any use in meeting – or repelling – a case such as that? The words “at birth” would be supremely irrelevant to such a pairing.
Finally, the addition of the words “at birth” would be inadvisable for an altogether different and more serious reason. What would it do to the rights of unborn children if we were to give protection from discrimination based on sex but then define sex as male or female at birth? What if you’re not born yet? What about the constitutional right-to-life of an unborn child? What about the other rights of a child between conception and birth? Do you really want to define “sex” in a way that might deny such rights. And yet you might end up doing precisely that if you were to add the words “at birth”. You would be giving protection from discrimination based on sex but only from birth. Not a good idea!
6. If the words “at birth” would have given the populace a greater level of comfort, why weren’t they included?
For the reasons just explained.
I hope that you will find the foregoing answers to be of some help to you as you continue to ponder the questions that will be put to the electorate in Tuesday’s referendum.
With deep respect and all best wishes,
Sean McWeeney QC
The Constitutional Commission