Referendum on Equal Rights in The Bahamas Is "Unnecessary" -The iPINIONS Journal

Frankly, I am stupefied that this country of my birth is holding a referendum on June 7 to decide whether men and women should enjoy the same constitutional rights – primarily with respect to citizenship.

Prime Minister Perry Christie presented the four amendments at issue during the launch of his “YES Bahamas Campaign – Equal Rights for Our Sons and Daughters” on April 10, 2016. Courtesy of The Bahamas Weekly, he presented them as follows:

Amendment One would allow children born abroad to obtain Bahamian citizenship from either their Bahamian father or mother, in those circumstances where the other parent is not Bahamian.
Amendment Two would enable a Bahamian woman who marries a non-Bahamian man to secure for him the same ability to apply for Bahamian citizenship – following the same steps, and subject to the same considerations – currently afforded to a Bahamian man married to a non-Bahamian woman.
Amendment Three would correct that provision in our Constitution that currently discriminates against men. The change would mean that an unmarried Bahamian man could pass on his Bahamian citizenship to a child fathered with a non- Bahamian woman, if he is able to prove by DNA evidence that he is the father. This right currently belongs only to women.
Amendment Four would update Article 26 of the Constitution, so that it would become unconstitutional for Parliament to pass any laws that discriminate based on sex.

The categorical imperative to vote “Yes” on each amendment should be self-evident to anyone living in a democratic country. Yet this referendum comes after almost fifteen years of political cunning, pandering, and dithering.

Meanwhile, it seems lost on virtually every commentator that constitutional rights are, by definition, rights all citizens are entitled to enjoy, equally. This is why the late U.S. Supreme Court Justice William Brennan famously opined that no citizen should have her enjoyment thereof subject to a referendum: Holding one on the age of consent, the death penalty, or Caribbean integration? Yes. On equal rights? No.

I decried this subjugation in “Petty Politics (and Homophobia) Bedeviling Equal Rights for Women in The Bahamas,” August 14, 2014. It includes the following excerpt.

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If the ruling PLP were serious about ushering in gender equality, it would have done so by an Act of Parliament (i.e., without pursing this fraught process of amending the Constitution)…

Mind you, the Constitution of The Bahamas does not expressly discriminate against women (e.g., the way the Constitution of the United States discriminated against blacks) such that constitutional amendments would be necessary to correct an ‘original sin.’ It just does not include ‘sex’ in the Article 26 at issue – along with ‘race, place of origin, political opinions, colour, or creed’ (as it does in Article 15) – as a personal attribute that should not give rise to any form of discrimination.

But any fair and just interpretation of Article 26 by a competent court would hold that sex/gender is plainly implied. For example, the U.S. Constitution does not include the term “same sex.” Yet the Supreme Court ruled that its provisions necessarily imply that same-sex marriage is as fundamental a right as traditional marriage…

[Meanwhile], religious leaders are hijacking the national debate, mostly by hurling ignorant fulminations about equal rights for women being dependent on what the meaning of ‘sex’ is… [They are] reading into the term ‘sex’ an expansion of the constitutional definition of discrimination based on ‘sexual orientation.’ Specifically, they fear the proposed update to Article 26 will provide homosexuals the same level of protection from discrimination heterosexuals already enjoy…

More to the point, in a country where religious leaders proselytize homophobia as an article of faith, this (mis)reading of the language in the tabled bills is spreading faster than the gospel at Pentecost. And whenever religion enters the house, reason hightails it out the back door.

Frankly, one could be forgiven for thinking that this referendum is more about marriage for gays than equal rights for women.

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That said, the struggle for black civil rights in the United States should be instructive. Not least because, if black civil rights were subject to a national referendum, blacks would probably still be sitting in the back of the bus … and much worse.

Congressional legislation was instrumental – as legislation on everything from employment rights to voting rights attests. But Supreme Court rulings were even more so – as rulings on everything from school desegregation to public accommodations attest.

More to the point, Supreme Court rulings were also instrumental with respect to equal rights for women – as rulings on everything from rights of citizenship to employment benefits attest; and equally so with respect to gay rights – as rulings on everything from public accommodations to same-sex marriage attest. The constitutional principle that obtained in each case is that, inherent in the fundamental rights (white) men enjoy under the U.S. Constitution, is the right of women, blacks, gays, and every other law-abiding citizen to enjoy those same rights. But I digress.

The point is that, with respect to codifying the equal rights at issue, Parliament has devolved its prerogative to a plebiscite. But civic leaders in The Bahamas would do well to query why Court of Appeal rulings have not been more instrumental.

Dame Joan Sawyer is the former president of this highest court in the land. She incurred professional censure and public ridicule in equal measure for dismissing this referendum as “unnecessary” and a “waste of time.”

But I would like to think this was just her way of lamenting the ironic silence of the Court of Appeal in resolving these fundamental constitutional issues. This, notwithstanding the arrogant ignorance she displayed by declaring her intent to vote “No” while admitting that she hadn’t even bothered to read the proposed amendments.

Which brings me to the only thing that explains the government seeking political cover under a referendum: religious bigotry.

This referendum clearly provides political cover. But national leaders are bending over backwards to pander to this bigotry. They are trying to reassure an extremely religious nation that voting “Yes” will not “provide a legal back door for the authorisation of same-sex marriage in The Bahamas.”

Except that this reassurance is politically, morally, and legally specious; not least because, like the constitution of all democratic countries, ours is based on the democratic imperative of equal rights for all citizens. As such it provides a legal front door – not only for women to enjoy the same rights men do, but also for homosexuals to enjoy the same rights heterosexuals do, including the right to marry.

Incidentally, with enactment of the Marriage (Same Sex Couples) Act 2013, the UK Parliament finally exercised its prerogative and codified the right of homosexuals in England and Wales to marry. It is instructive that the government did not subject their fundamental right to marry to a referendum.

No doubt if (like men and women in The Bahamas) men and women in the UK did not enjoy the same rights of citizenship, the government would have redressed that inequality with an Act of Parliament too.

Of course, national leaders in The Bahamas are pandering to religious bigots because homophobia carries even more cultural currency than male chauvinism in our island paradise. Indeed, it speaks volumes that retired Anglican Archbishop Gomez is chastising other church leaders for using the specter of same-sex marriage as a poison pill to deny equal rights for women:

Please note that, if you vote ‘No’, you will be telling the world that you are happy and content to be the recipient of certain constitutional rights while your Bahamian sister is denied these same rights under identical circumstances. Surely, your conscience should lead you to recognise that such a position is unfair and unjust.

(Tribune, May 13, 2016)

It just so happened that I chastised Archbishop Gomez in similar fashion 10 years ago with respect to the ordination of women and gays in the Anglican Church. In ‘Internecine Battle for the Soul (and Property) of the Anglican Church,” December 18, 2006, I remarked that:

What is ironic and, frankly, disappointing is that Archbishop Peter Akinola and Archbishop Drexel Gomez are misleading African and Caribbean blacks, respectively, into using perverse religious and cultural rationalizations to discriminate against women and gays. After all, white bigots used similar rationalizations to discriminate against blacks not so long ago.

Alas, as the son of a preacher man, I know firsthand the scourge of religious bigotry. Time and again I have seen it mislead otherwise intelligent people (like Dame Joan Sawyer) to fear the immutable constitutional symmetry between civil rights, equal rights, and gay rights.

I decried this bigotry in “Gay Cruise Passengers: Welcome To You Too,” January 31, 2006, when it reared its ugly head with respect to gay and lesbian cruises making ports of call in The Bahamas. The commendable efforts of the then FNM government did little to quell the homophobic hysteria these cruises incited. I decried it again in “Banning Marital Rape in The Bahamas,” August 14, 2009, when it reared its ugly head with respect to proposed legislation criminalizing marital rape.

The way I summed up my lamentation in this latter commentary could serve as a lamentation for all Bahamians with respect to the religious bigotry fueling opposition to this pending referendum.

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This proposed legislation has incited such widespread moral condemnation, one might think Bahamians are living in a Taliban paradise. Indeed, this condemnation exposes the fact that Christian fundamentalists, in many respects, are every bit as fanatical as Islamic fundamentalists. … [O]pposition to this proposed ban on marital rape is being stirred up primarily by religious leaders. …

Accordingly, I implore political leaders to ignore the blandishments of religious leaders who not only condone but actually champion marital rape — based on their reading of the Bible and their chauvinistic concept of traditional family values.

I rather suspect, though, that self-preservation would preclude these religious leaders from supporting legislation calling for all adulterers to be put to death – as the Bible also commands.

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Hypocrisy, thy name is religion.

Still, my reservations and concerns thusly expressed, I urge my fellow Bahamians to vote Yes!