Two women sued the government last year, claiming that the registrar general denied them a marriage licence on Feb. 2, 2021 because they’re of the same sex. (Photo: DANIEL JAMES/Unsplash)

The first challenge to the territory’s same-sex marriage ban was scheduled to be heard last month in High Court, but the case was delayed after last-minute legal manoeuvring by the BVI Christian Council found favour with Appeals Court Justice Gerard Farara.

Last year, claimants Kinisha Forbes and Kirsten Lettsome — who have been legally married under United Kingdom law since 2019 — sued the Virgin Islands government, claiming that the registrar general improperly denied them a VI marriage licence because they’re both women. They’re asking the court to declare that their marriage is valid under VI law and that prohibiting same-sex marriage is unconstitutional, among other requests.

The case was scheduled to be heard before acting Commercial Court Justice Adrian Jack on Sept. 29-30, but on Sept. 16 Attorney General Dawn Smith requested an adjournment.

Ms. Smith — who as the government’s attorney is listed as the respondent in the case — also asked Mr. Jack for permission to provide further evidence by Oct. 7.

In support of her request, Ms. Smith explained that her chambers had struggled to obtain instructions from the VI government and that it had been busy in the aftermath of former Premier Andrew Fahie’s arrest in Miami and the publication of the Commission of Inquiry report, according to a Sept. 20 judgment from Mr. Jack.

She also explained that for further evidence her office was seeking notes from the UK Foreign, Commonwealth and Development Office on the negotiations leading up to the territory’s 2007 Constitution, according to the judge.

The adjournment request was supported by the BVICC — which is listed as an “interested party” in the case — but opposed by the claimants, Mr. Jack stated.

Adjournment denied

Ultimately, the judge found the attorney general’s arguments unconvincing.

“The [attorney general] disputes that the claimants would suffer prejudice from any adjournment,” Mr. Jack wrote in a Sept. 20 judgment. “I disagree. They give evidence of the ongoing difficulties they suffer from the non-recognition of their marriage. Ms. Forbes says, ‘Our marriage not being recognised is stressful and feels like an added weight on our shoulders.’”

Accordingly, Mr. Jack refused the application to adjourn the case. The attorney general accepted this decision, and on her behalf Crown Counsel Maya Barry provided a skeleton argument required in advance of the Sept. 29-30 hearing, according to a separate judgment Mr. Jack handed down on Sept. 30.

However, three days before the scheduled start date, BVICC attorney Lorraine La Rose of Vigilate Law applied for leave to appeal Mr. Jack’s refusal to adjourn the case, Mr. Jack stated.

Ms. La Rose’s application — which included a sworn affidavit from BVICC Vice President Rosemarie Flax — also asked for the proceedings to be stayed in the meantime.

Two days later, Appeals Court Justice Gerard Farara granted both BVICC requests at about 3 p.m., according to Mr. Jack.

As a result, the judge noted, the BVICC’s manoeuvring succeeded in delaying the hearing the afternoon before it was scheduled to start.

Questions raised

Mr. Jack, however, raised questions about how the BVICC went about securing leave to appeal, suggesting that Ms. La Rose may have failed to bring pertinent legal points to Mr. Farara’s attention.

The BVICC, for instance, didn’t first seek a rehearing from his court, he stated, referencing a separate case where the appeals court found that a similar failure had led to an “abuse of process.”

“I have seen no evidence that Ms. La Rose brought this point to [Mr. Farara’s] attention,” Mr. Jack wrote.

The judge also noted that the BVICC was not the original applicant for the adjournment.

“The applicant was the attorney general, who had decided not to challenge my refusal of her application,” he stated.

He added that Ms. La Rose didn’t notify the other parties or the High Court itself about her request for leave to appeal.

The judge also noted her apparent indifference towards the costs incurred by the delay.

“The adjournment of the hearing of [Sept. 29-30] by the order communicated to the parties at about 3 p.m. on [Sept. 28] resulted in a significant waste of legal costs. This was readily foreseeable,” Mr. Jack stated in the judgment. “I regret to say that when I asked Ms. La Rose about this yesterday, she treated this matter flippantly and as a matter of no concern.”

He added that Ms. La Rose stated that the BVICC didn’t accept liability for costs wasted by the late adjournment.

“The costs burden may well be a hardship [to the claimants],” he wrote. “Further, the Attorney General’s Chambers are, as is well-known, under extreme pressure. The attorney can ill afford to have Ms. Barry’s efforts to present the case wasted in this way.”

In the judgment, Mr. Jack noted that he couldn’t make any order because of Mr. Farara’s stay of the proceedings.

However, he suggested that the Court of Appeal could make an order giving the attorney general until Oct. 21 to file further evidence and listing the hearing for Nov. 10-11.

The lawsuit

Messes. Lettsome and Forbes sued the government last year, claiming that the registrar general denied them a marriage licence on Feb. 2, 2021 because they’re of the same sex.

Besides seeking legal recognition of their marriage, they’re asking for the court to void and declare unconstitutional section 13(c) of the 1995 Matrimonial Proceedings and Property Act, which states that marriage will be void if “the parties are not respectively male and female.”

The claimants are arguing that the prohibition of same-sex marriage contravenes several sections of the Constitution, including sections nine, 12, 19, 20, 21, and 26. These sections declare fundamental rights and freedoms of all individuals regardless of sexual orientation, equality be- fore the law, rights of an individual’s private life, the right of every “man and woman” to marry, the freedom of conscience, and protection from discrimination, respectively.

Related cases

The case was originally scheduled to be heard in June 2021, but both sides agreed to adjourn it to await the outcome of two Privy Council appeals relating to same-sex marriage in Bermuda and the Cayman Islands, according to Mr. Jack’s Sept. 30 judgment.

“The Privy Council gave its advice on [March 14] and held that the constitutions of Bermuda and the Caymen [sic] Islands did not mandate same-sex marriage,” Mr. Jack stated. “The claimants in the current case indicated that they nonetheless wished their claim to proceed to a final hearing.”

The attorneys

The claimants are represented by former VI Director of Public Prosecution Terrence Williams of the Jamaica-based firm Public Law Chambers, as well as Karlene Thomas-Lucien of the VI-based firm Chase Law.

Mr. Williams declined to comment because the case is ongoing. BVICC representatives and the attorney general did not respond to messages.