Closing Arguments Heard In SSM Legal Case

May 28, 2018

[Written by Don Burgess]

“This saga will one day form part of our history, win or lose and there is a right side and wrong side of history.”

Those were part of lawyer Rod Attride-Stirling’s closing arguments in Supreme Court in the case regarding the Domestic Partnership Act.

The case is being brought in response to the legislation of Parliament last year that took away the right of gay couples to get married in Bermuda, and instead gave them rights through the Domestic Partnership Act [DPA], which is scheduled to go into effect on June 1st.

Roderick Ferguson has filed legal action, as has OUTBermuda and Ms Jackson, and as both actions deal with the same matter, the court ordered that the two actions be heard together.

Mark Pettingill, from Chancery Legal, spoke on behalf of Mr Ferguson while Rod Attride-Stirling, from ASW Law, represented Ms Jackson.

Mr Attride-Stirling said, “This saga will one day form part of our history, win or lose and there is a right side and wrong side of history.”

He said our forbearers would look back at us “as barbarous ancestors who for a moment took a bizarre step backwards…we must do the right thing here.”

Earlier he said in order to establish his case, all he needed to do was prove the probability the DPA was founded with a religious purpose in mind. He added that the PLP ran on an electoral promise to revoke same-sex marriage, which the DPA accomplishes.

“The key part was to get rid of same-sex marriage; the rest is window dressing.”

Mr Sttride-Stirling said even though he was bringing this on behalf of OUTBermuda and Ms Jackson, there were others who were affected by the DPA, and it is a “large and significant group.”

“It is a very small step to link the Furbert Bill [MP Wayne Furbert’s Private Members Bill] to the DPA revocation purpose. It is the only logical step. Minister [Walton] Brown said…one simple reason for the revocation provision.”

Mr Attride-Stirling added Minister Brown stated the only objects to same-sex marriages were religious ones, saying the only objections he heard were religious ones.

He doesn’t refer at all to other objections he may of heard, only religious ones. He goes on to say ‘The Bill, the DPA, will accomplish what a Private Members Bill would have accomplished.’ He doesn’t refer to other things in the Bill as the Bill does other things. Everyone understood what this was about.

He continued, “This was all about same-sex marriage. This was all about religious objections to same-sex marriages.”

Mr Attride-Stirling said the Preserve Marriage group “lobbied for a particular definition of marriage, and they got exactly what they asked for.”

He added this gave those that were a part of the Preserve Marriage group a distinct advantage over other creeds, such as Wesley Methodist Church, who did not get their definition of marriage. He said the DPA takes away their right.

Mr Pettingill said this is clearly a case of discrimination.

“The significant element of this case is taking away an existing right.”

The lawyer added Mr Ferguson has the right to get married to a same-sex partner today, but that next month he doesn’t. It’s unlikely he will find someone before the deadline, but he deserves to have that same right in the future so “he knows that it’s there for him. It’s so bizarre that gay people have until June 1st. I don’t know if they expect gay people to line up around the block and try to crowd their way into the registry.”

He also pointed out the religious nature of the DPA.

“It’s fundamentally disingenuous to try to say that there was no religious basis for what transpired. Thousands of people marched on the Hill, with not so flattering signs at times as well, and they were all religious based, and they were littered with religious Biblical verses from Leviticus to everything else.”

Mr Pettingill says this prevents Mr Ferguson from acting on his freedom of conscience. He pointed out that Mr Ferguson may want to someday get married and this Act “is the destruction of hopes and dreams,” and the right of happiness and to pursue that.

“It is significant,” Mr.Pettingill said. “The fact of the matter of the matter is embracing of what a Constitution must do. It must protect hopes and dreams.”

He said it becomes worse when you have a right and then have it taken away.

“I don’t conceive this as being slight, and even if it is, it is still a manifestation. It’s in our Constitution. It’s there, and It’s quite eloquent. Except with his consent, no person should be hindered of his freedom of conscience. It includes freedom of thought and freedom of religion.

“How does one narrowly define the word freedom?”

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