This commentary, which is the second in a series on same-sex marriage, covers the use of a referendum to resolve the issue in the Virgin Islands.
The idea of a referendum came to the fore after a female couple who had been married in the United Kingdom in 2017 sued the VI government for refusing to grant them a VI marriage licence. The case is still before the courts. The claimants contend that denying them a VI marriage licence violates the 2007 Constitution, and that Section 13 (1)(c) of the Matrimonial Proceedings and Property Act of 1995, which restricts the definition of marriage to a union between a man and a woman, should be declared void and unconstitutional. They contend in their lawsuit that various constitutional rights have been violated by the refusal to grant them a marriage licence, including the fundamental rights and freedoms of all individuals; equality before the law; the rights of an individual’s private life; the right of every man and woman to marry; freedom of conscience, thought and belief; and protection from discrimination.
Referendum
In December 2022, with the lawsuit before the High Court, Premier Dr. Natalio “Sowande” Wheatley responded to public pressure for the government to declare its position on same-sex marriage in the VI. As reported in 284 Media on Jan. 3, 2024, he announced that a referendum would be held to resolve the issue for the following reasons: issues of such great social and religious significance should not be decided in the courts; a ruling by the courts in favour of legalisation has the potential to disrupt the social and religious fabric of the society; and the people of the VI have a right to voice their opinion on the matter of marriage with the legislature being obliged to heed the wishes of the populace.
In July 2023, after the resolution for the referendum was Gazetted, Dr. Wheatley re-affirmed that the referendum would be held. He repeated his comments in a recent update in the House of Assembly in response to a question posed by the deputy speaker. He has identified three things that have been holding up the referendum: the setting of a date for the referendum to be debated in the House of Assembly; the need to reflect the process of electronic tabulation; and the progress of the ongoing court matter on the issue.
‘Got it right’
Dr. Wheatley has got it right! Regardless of how the courts may rule, what should be accepted as marriage is something to be decided by the people of the territory, not the courts. Nor should it be declared by any government unless that government is doing so on the results of an acceptable referendum. Those who genuinely wish to see justice done need to become their own philosophers and take into account the puzzle that injustice results just as much from treating “equals unequally” as it does from treating “unequals equally.” The question, therefore, is whether there is a moral consensus in the territory over what constitutes a just society.
There are some who contend that the VI has no choice but to legalise same-sex marriage since it has signed on to the European Convention on Human Rights. Article 21 of the ECHR bans numerous forms of discrimination, including that based on sexual orientation. Interestingly enough, the Constitutional Review Commission, which recently completed its work, has taken the position that (a) the ECHR does not provide any mandate for marriage rights, and (b) this allows local legislatures to make their own decisions on the matter. In Recommendation 38 in their report, under the section “Bill of Rights – Right to marry,” the CRC has proposed that section 20 of the Constitution be amended to state clearly that marriage is between “a man and a woman of opposite sex.” While it is useful to note the position of the CRC on the issue, there can be no substitute for the direct expression of the will of the people in a referendum. So let us now deal directly with the proposed referendum.
Draft resolution
Under a draft resolution prepared by the Wheatley administration, voters would be asked to answer two questions: whether they are in favour of same-sex marriage being legalised in the territory; and whether they are in favour of civil unions or domestic partnerships, which would allow same-sex couples to have certain rights. One suspects that the thinking of the government is that if the marriage option were to be rejected in the referendum (as happened in Bermuda), same-sex couples could alternatively be offered civil partnerships (as happened in Cayman Islands).
Opposition
Meanwhile, the BVI Christian Council has declared its opposition to any referendum to resolve the issue. Christianity is the dominant religion in the territory, and the council is adamant that homosexuality is condemned in the Bible. Moreover, as the council argued in a July 5 commentary, “Referendums undermine parliamentary sovereignty — and more so, biblical laws.”
It is difficult to see how a referendum in and of itself can undermine biblical laws. The council needs to elaborate on this. Again, the notion of “parliamentary sovereignty” has to be handled with care. Parliamentary decisions should always reflect the will of the people. Parliaments are supposed to represent the people, not replace them and become sovereign. When parliaments become sovereign, an iron law of tyranny can set in — the tyranny of a minority — with all kinds of untoward things being done in the name of “we the people.”
Although the government’s plan to hold a referendum deserves a round of applause, it should be acknowledged that some referenda do not yield useful results as they fail to reach high standards for acceptable referenda. To begin with, a result reflecting the choice of a thin majority should be rejected and the referendum re-done. Quite often, voter turnout in referenda is poor. To be acceptable, the turnout should be no less than two thirds of the registered voters. No more than 10 percent of the votes cast should be invalid. A two-thirds majority should be required when the valid votes are counted.
Cuban example
Cuba can serve as a model for holding the referendum. In that northern Caribbean country, same-sex marriage was legalised in 2022 after a referendum was held on the revision of the Family Code. About 74 percent of the approximately 8.4 million registered voters turned out, and 94 percent of the votes cast were valid. Those persons voting in favour were in a convincing majority: 66.85 percent to be precise. This clear and unequivocal expression of the will of the people was in marked contrast to what happened in the United States, the “leader of the free world,” where same-sex marriage was granted legal approval by fiat of the Supreme Court in 2015.
This commentary has been amended to correct the number of registered voters in Cuba.