By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

CONSTITUTIONAL Commission Chairman Sean McWeeney said yesterday he does not believe a statutory provision clarifying that same-sex marriage is illegal in The Bahamas is necessary to prevent successful legal challenges to the status quo.

His statement came after Court of Appeal President Dame Anita Allen suggested during a speech on Tuesday that without such a provision, one cannot conclusively say same-sex marriage is currently illegal in The Bahamas.

Mr McWeeney said he found Dame Anita’s controversial and highly anticipated presentation, “erudite, balanced, provocative and above all else intellectually honest.”

But on the issue of a clarifying statutory provision that says marriages not involving a man and a woman are void, he said if Prime Minister Perry Christie were to seek his advice on the matter he would recommend not implementing such a provision.

“Where statute is silent,” he said, “a basic principle is a common law fills the vacuum and common law is extremely clear that the only marriage that is valid is one between a man and a woman. So even if a statute is not clear about an issue, one would look at what the common law says to determine what to do.”

Nonetheless, in its report in 2013, the Constitutional Commission recommended to the government that it include such a provision to note explicitly that laws prohibiting same-sex marriage in the country would not be inconsistent with the Constitution.

“It was a specific proposal from various elements of the religious community,” he said yesterday. “Persons like Pastor Rex Major appeared before the commission with that recommendation. But ultimately, the Constitution is not the place to define marriage. That should be left over to the legislature. And in any case, it wasn’t necessary.”

Mr McWeeney maintained his belief that the failure of the fourth referendum bill will make it easier to argue that prohibiting same-sex marriage is unconstitutional.

That bill sought to end discrimination based on sex, which was defined as being male or female.

“What has happened now is the Bahamian people have missed the opportunity to narrow the meaning of sex,” he said.

If a same-sex couple were to seek marriage in this country, Mr McWeeney expressed confidence that the challenge would be vigorously opposed by the Office of the Attorney General.