Release by the Office of the Attorney-General
Clarification of Legal Points: Amendment Four
On June 7, 2016, Bahamians will participate in a referendum in which they will be asked to vote on four amendments to our nation’s Constitution.
Many Bahamians have sought clarification on legal questions that have arisen in the course of debate regarding Amendment Four.
Is it possible that in the future, judges could interpret Amendment Four as giving people the right to same-sex marriage?
While it is the role of judges to interpret the Constitution and statutes, they must do so according to established legal rules. They are not free to ignore the language of the amendment or the will of Parliament.
In the case of Amendment Four, Parliament made sure to define “sex” as “male or female”, so no future court could interpret “sex” as “sexual orientation”. And members of Parliament stated on the record, repeatedly, that their only intent in passing these amendments was to give men and women equal rights.
If the Constitution is “supreme” over other laws, couldn’t Amendment Four be used to overrule the Bahamian law that says marriage is between a man and a woman?
No. The Matrimonial Causes Act says that in The Bahamas, in order to be legal, a marriage must be between a man and a woman. Nothing in Amendment Four could or would change this law.
Amendment Four would prevent new laws and action by the state that discriminate against men and women, but it would not affect the Matrimonial Causes Act because it is a pre-independence law that was expressly “saved” by the Constitution. Article 26(4)(c) of our Constitution states that the non-discrimination provisions of Article 26 do not apply to laws from before 1973.
"What about the Privy Council? Although nearly every country in the Commonwealth already has the right to non-discrimination on the basis of "sex" in their Constitutions, the Privy Council has NEVER interpreted this provision to create a right to same-sex marriage in any of those countries for which it remains the final court of appeal. All countries in the Commonwealth that do allow same-sex marriage have very different constitutional provisions from the Bahamas or passed specific laws permitting it."
The word “sex” may mean male or female, but what if people change genders in order to marry?
“Sex” in Amendment Four is defined as “male or female,” and that means male or female at birth. There are settled cases in the United Kingdom and the Commonwealth that state that the law only recognizes a person’s sex at birth for the purposes of marriage. Thus, a person born a male cannot marry another person born a male. What matters is what is on your birth certificate.
The Office of the Attorney General urges persons to attend the public information sessions being conducted by the Constitutional Commission.