Court reserves judgement in gay rights suit against TV stations

BY PAUL HENRY Co-ordinator - Crime/Court Desk henryp@jamaicaobserver.com

Friday, May 31, 2013

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THE Constitutional Court yesterday reserved judgement in the case of a gay rights activist who brought suit against three national television stations which refused to air an advertisement promoting tolerance of homosexuals.


Judgement was reserved by the panel of three judges — Justices Paulette Williams, Bryan Sykes and Leighton Pusey — in the Supreme Court following four days of arguments and submissions from the parties involved. 


The fuss made by the gay community and rights groups over the refusal by the television stations to air the advert drew condemnation from several quarter of the society, including the religious circle.


The claim was brought against TVJ, CVM and the state-run Public Broadcasting Corporation of Jamaica (PBCJ) by Maurice Tomlinson, a Jamaican attorney who married another man, Tom Decker, in Canada last year January.


News reports and photographs of the wedding was carried by several media outlets across the region.


Yesterday, after the court reserved it's judgement in the matter, Rev Al Miller, who pastors the Fellowship Tabernacle in Kingston, issued a strongly worded press release on behalf of "scores of concerned pastors & leaders" in which he condemned the lawsuit and any push towards gay rights.


"As Christians leaders and the large contingent of believers that we serve directly, numbering over 500,000 (not including all denominations) and the general sentiment of the majority of the rest of the citizens of our nation, we register our full support of the position taken by the media houses not to have carried the advertisement being proposed by Mr Maurice Tomlinson," said the release.


Added the release: "It was indicated to the stations by some of us that had those advertisements been carried, we would have registered our strongest objections. We had registered our objections then and remain resolute to uphold the fundamental values and moral principles of our faith and that of the founding fathers of our nation. We declare that we will mobilise and resist any attempt to tamper with the constitution as it relates to the buggery law. Our present Charter of Rights sufficiently covers and protects the rights of all citizens."


Miller said that they would not support any politician or political party that seeks to promote and "foist on our nation, in any shape or form, the gay rights agenda which is alien to our culture as a people", while noting that recent information shared by the Children's Advocate indicates that there has been a 74 per cent increase in reported buggery acts against children.


"We will not sit by and allow the thinking of less than one per cent or any weak-willed Government to lead us into simply following other nations along a path that is not in our best interest," said the release.


During the hearing of the case in the Supreme Court, arguments were made by Queen's Counsel Lord Gifford that the stations violated the Charter of Fundamental Rights and Freedoms by refusing to broadcast the advertisement.


The Charter, it had been argued, guarantees the right of Jamaicans to seek, receive, distribute, or disseminate information, opinions and ideas through any media.


But those arguments were rebutted by Queen's Counsel Hugh Small, representing CVM; Solicitor General Nicole Foster-Pusey, who is representing the PBCJ; and Georgia Gibson-Henlin, TVJ.


The attorneys asked the court to dismiss Tomlinson's claim.


For his part, Small told the court that the advertisement could be viewed as support for homosexuality, some of which were illegal in Jamaica. He said also that CVM ran the risk of losing revenue if it was viewed that the station was in support of homosexuality.


Gibson-Henlin argued, in part, that Tomlinson did not have the legal standing to bring the claim as he was acting on behalf of an overseas based group — the New York-based AIDS-Free World — which made the advert. As such, the attorney said Tomlinson has not suffered from the advertisement not being aired.


The attorney also argued that freedom of expression doesn't give persons the right to use the property of others to spread their message.


Meanwhile, Foster-Pusey, argued that the stations have editorial control over what they air and noted that the court has to exercise a balancing act between the freedom of expression and human dignity.


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