The purpose of this multi-part commentary is to help raise the level of public discourse on the issue of legalisation of same-sex marriage in the Virgin Islands. This issue has not been the subject of a great deal of public debate, and the little discussion that has taken place has generally been conducted at the level of gossip. Since Premier Dr. Natalio “Sowande” Wheatley has stated on several occasions his administration’s commitment to holding a referendum on whether same-sex marriage should be legalised in the territory, the people of the VI need to be as informed as possible in order to make a sound decision if the referendum is indeed held.
This commentary does not seek to discuss the personal view of this writer on whether same-sex marriage should be legalised here in the VI or anywhere else. It seeks to shed some light on three important matters which voters in the promised referendum should bear in mind. These matters are: (1) where the legalisation of same-sex marriage stands in the world as a whole; (2) the use of a referendum to resolve the issue in the VI; and (3) how legalisation of same-sex marriage would affect the definition of marriage in the territory.
The global situation
Across the globe, marriage has traditionally been defined as a legally binding and socially approved union between a man and a woman. In the VI, this definition of marriage as a relationship between heterosexuals is enshrined in Section 13 (1)(c) of the Matrimonial Proceedings and Property Act of 1995, which is currently being challenged in court.
Over the last two decades, however, the conventional notion that marriage is something which takes place only between a man and a woman has been challenged by the LGBTQ+ movement. This minority but increasingly powerful movement has made legalisation of marriage between persons of the same sex an item at the top of its global political agenda. The first country to grant legal recognition to marriage between persons of the same sex was the Netherlands, in the year 2000. With the Netherlands blazing the trail, there are now about 36 countries in which same-sex marriage is legal.
The push to legalise same-sex marriage gained momentum in 2010. That was the year in which Argentina, Portugal and Iceland passed their enabling legislation. The push became even more forceful when same-sex marriage was made legal in the United Kingdom in 2013 and in the United States in 2015.
However, it is only in certain parts of the world that legal recognition has been given to same-sex marriage. The countries that have legalised same-sex marriage are found predominantly in Western Europe and parts of the Americas. Let us elaborate on this.
Same-sex marriage is legal across the vast majority of countries in Western Europe, with Italy being a notable exception. According to the respected Pew Research Center, majorities of adults in 15 countries in Western Europe support same-sex marriage, with those majorities reaching their highest levels in Sweden (88 percent), Denmark (86 percent), and the Netherlands (86 percent). But unlike what has been happening in Western Europe, same-sex marriage has been rejected by governments throughout Central and Eastern Europe.
When we examine the Americas, we find that Canada was the first country in that region to legalise same-sex marriage, in 2005. Since that time, the list of jurisdictions that have legalised same-sex marriage has grown to include Argentina (2010), Uruguay (2013), Brazil (2013), the US (2015), Colombia (2016), Ecuador (2019), Costa Rica (2020) and Cuba (2022).
In the Caribbean, which may be of immediate interest to voters in the promised referendum in the VI, legal recognition of same-sex marriage exists in all the jurisdictions which fall under the Netherlands and France. Except for the USVI and Puerto Rico, it does not exist in any of the English-speaking countries or territories, even though most of them no longer ban homosexuality.
Africa and Asia
Moving further across the globe, it is evident that same-sex marriage does not meet the favour of almost all countries in Africa and Asia. South Africa is the only country in Africa that has legalised same-sex marriage. It took that step in 2016. When we look at Asia, it is only Taiwan that has legalised this type of union, as recently as in 2019.
The information presented above relates essentially to same-sex marriage and not to homosexuality itself. Many countries that do not permit same-sex marriage have legalised homosexuality. A highly informative study by the Pew Research Centre across 34 countries found that there was an increasing acceptance of homosexuality in those countries, especially the wealthier ones. The people who were found to be more accepting were younger, more educated, more “left-wing” in their political views, and not possessing any particular religious affiliation. In spite of becoming legal in more and more countries, homosexuality is still officially illegal in about 71 countries and punishable by death in 13.
‘Seriously divided’
The increasing zeal of LGBTQ+ organisations in promoting homosexuality, the legalisation of same-sex marriage, and “marriage equality” under the banner of “diversity, equity, and inclusiveness” (DEI), has led to a backlash in some countries that view marriage between persons of the same sex as a major threat to their normative order. There are now 35 countries with constitutions in which same-sex marriage is explicitly banned. LGBTQ+ organisations have received strong backing from human and civil rights groups, the medical and scientific communities, and some powerful individuals and groups in the so-called “developed” countries, but the world remains seriously divided on the question of same-sex marriage. This division exists within countries and territories as well as between geographical regions of the world.
At the root of all the controversy and conflict are three questions which require clear and morally defensible answers. Firstly, what precisely are “human rights”? Secondly, are human rights absolute or do they have limits? Thirdly, to what extent does the protection of particular human rights serve to advance or undermine the development of a society?
There needs to be agreement on what development means — i.e., on what the society should become — before one makes a decision on whether to support or oppose the legalisation of same-sex marriage or any other policy measure to be implemented in the name of “we the people.” We will return to this at the end of the commentary.
In the OTs
Let us conclude this part of the discussion by saying a brief word on the relations between the UK and its Caribbean overseas territories (OTs) on the issue of same-sex marriage and its legalisation. In this connection, it should be mentioned that homosexuality itself was legalised in the UK in 2001, and that the UK government immediately imposed that change on its OTs in that year by way of an order in council. However, marriage of same-sex couples was not legalised in the UK before 2013. The UK has expected its OTs to follow its lead on same-sex marriage but only some have done so.
The OTs in the Caribbean and neighbouring Bermuda refused to toe the line even though a select committee of the British House of Commons in 2019 urged the UK government to take action to force those recalcitrant OTs to get in line. Specifically, the select committee recommended that the OTs in question be given a deadline to implement the change and that failure to meet the deadline should result in an order in council to force them to comply. Thus far, the UK government has not acted on the recommendations of the select committee.
Special mention should be made of Cayman Islands and Bermuda, where the Privy Council has ruled that the constitutions of those OTs do not allow for same-sex marriage. It remains to be seen what will prevail in the UK’s other four Caribbean OTs (Anguilla, the VI, Montserrat, and Turks and Caicos Islands).
It should be emphasised that the UK government has “reserve powers” which allow it to pass an order in council to determine how it will administer the affairs of its OTs. Those powers were invoked three years ago when the governor of Cayman Islands used them to legalise “civil partnerships” in that OT.
There, the Civil Partnership Act was signed into law on Sept. 4, 2020. It made such partnerships de facto marriages in that it allows for essentially the same rights as marriage, including those related to adoption and inheritance.
At the same time, some influential politicians in the UK such as Lord Michael Cashman have not given up on the idea of having the UK government use its power to force its OTs to legalise same-sex marriage. Mr. Cashman is also a co-founder of Stonewall, one of the leading LGBTQ+ organisations in the world.
Just as the people of the VI need to agree on the type of society which they wish to create, so too they must recognise that powerful interest groups are in conflict over the sensitive issue of marriage between persons of the same sex.
To be continued.