On Friday, the United States Supreme Court legalised gay marriage throughout the US, overturning dozens of state and territorial laws that prohibited such unions from being legally recognised.
In the Virgin Islands, politicians and other public officials have declared gay marriage to be illegal, but the laws surrounding the issue are much less clear.
This reporter has been unable to find any VI law that explicitly prohibits same-sex marriages or that defines marriage as a union strictly between a man and a woman.
“If the law does not define marriage as between a man and woman, then there is no legal bar to gay or lesbian persons being married here,” said a VI attorney who has argued constitutional cases before the Eastern Caribbean Supreme Court.
Though constitutions in other British overseas territories include such definitions, the VI’s doesn’t, and the territory’s Marriage Ordinance prohibits only close relatives and people under the age of 16 from receiving licences.
There are gender-specific terms in schedules attached to the ordinance, but government officials have not responded to requests to clarify whether these or any other provision might constitute a ban on gay marriage in the territory.
In the absence of such a ban, same-sex marriage would be legal, according to Jamaican lawyer and gay rights activist Maurice Tomlinson.
“Under the law, what isn’t prohibited is allowed,” Mr. Tomlinson said in an interview this week.
Two VI attorneys added that even if gay marriage were prohibited in the Marriage Ordinance, such a law might be challengeable under the VI Constitution, which describes marriage as a fundamental right and bans discrimination based on sexual orientation.
Registrar General Stephanie Benn, Attorney General Baba Aziz, and government Communications Director Arliene Penn did not respond to inquiries on Tuesday, but a public officer at the Civil Registry said that the agency’s policy is to refuse marriage licences to homosexuals.
She explained that even though she’s read the Marriage Ordinance and hasn’t seen any rule strictly prohibiting gay unions, the ban is implied because sodomy is prohibited in the territory.
By KEN SILVA
When the United Kingdom issued a 2000 Order in Council that overturned the prohibition of homosexuality in the Virgin Islands and other British overseas territories, some community members expressed fears that the action might lead to legalised gay marriage.
Those fears might have been well founded. The VI’s 2007 Constitution prohibits discrimination against gays and also declares marriage to be a right, and there doesn’t seem to be any statutory prohibition against same-sex marriage in the law books.
But if the 2000 Order in Council was a step toward legalising gay marriage here, does it also apply to all the other British OTs in the region?
The answer is no, in part because other OTs have different language in their constitutions.
The Cayman Islands, Montserrat, and Turks and Caicos constitutions all declare that marriage is a right, but define it as a union between a man and woman.
“Government shall respect the right of every unmarried man and woman of marriageable age [as determined by law] freely to marry a person of the opposite sex,” states the CI Constitution.
The Turks and Caicos constitution has nearly the same wording, as does Montserrat’s.
Another British OT where the UK’s 2000 order applied, Antigua, doesn’t address marriage rights in its 2008 constitutional charter.
The VI Constitution, on the other hand, is gender neutral in declaring marriage a right: “Every man and woman of a marriageable age has the right to marry and found a family in accordance with laws enacted by the legislature.”
On this basis, two VI attorneys who declined to be named and Jamaican lawyer Maurice Tomlinson said that any denial of a marriage licence to a gay couple by the Civil Registry could be challenged in court.
“I’d say you have a more than arguable case,” Mr. Tomlinson said.
However, Jane Cross, the director of Caribbean Law Programs at Nova Southeastern University in Florida, cautioned that the Constitution actually might allow for discrimination anyway.
Ms. Cross pointed to a caveat in the Constitution’s anti-discrimination clause, which states that the clause does not apply to issues of adoption, marriage, divorce, burial, “or other like matters.”
This could mean that a statute prohibiting same-sex marriages in the VI would still be held constitutional, she said.
This information, however, is inaccurate. An Order in Council from United Kingdom authorities in December 2000 nullified anti-sodomy legislation and other laws criminalising homosexual acts in the VI and other British overseas territories.
Moreover, a VI attorney who spoke on condition of anonymity scoffed at the idea that such criminal laws would have restricted gay couples from marrying.
“That’s funny. They have no way of knowing whether you will commit buggery,” he said. “And what about lesbians?”
The attorney was one of two VI lawyers who said that there appears to be a strong legal case to be made for suing the government if a gay couple were denied a marriage licence – both for constitutional and statutory reasons – but they declined to be named due to the controversy that surrounds the issue of homosexuality in the territory.
One of the attorneys said that the issue was often discussed in law school at the University of the West Indies, and that a constitutional challenge could force the territory to grant licences to gay couples, even if there exists a statutory law prohibiting same-sex marriage.
There are several clauses in the Constitution that indeed seem to imply that a ban on same-sex marriage might be overturned by the courts: Section 20 declares that marriage is a right; Section Nine states that fundamental rights apply to all persons, regardless of sexual orientation; and Section 12 states that “everyone is equal before the law.”
Mr. Tomlinson, an open homosexual, said that such clauses mean that there’s “more than a strong case” to be made for challenging the territory’s anti-gay marriage policies.
“I cannot give legal advice in the BVI, but the logical approach would be for a person to get denied a licence and then make a constitutional claim,” he said. “It would have to work its way through the system.”
However, Jane Cross, a US law professor and director of Caribbean Law Programs at Nova Southeastern University in Florida, pointed to a provision that may allow for discrimination in marriage: Though Section 26 of the Constitution prohibits discriminatory laws, there is a subsection that states that discrimination can still be constitutional “with respect to adoption, marriage … or other like matters.”
There is another provision that might allow for discrimination against gays, she said: a subsection that states that public officers can discriminate in performing the area of “marriage … and other like matters” as long as they’re “expressly or by necessary implication authorised to be done by any such provision of law.”
And while the Marriage Ordinance does not explicitly authorise discrimination, there is a form attached to the law that specifies that the “bachelor/widower” should sign one part of the application, and the “spinster/widow” the other.
It could be argued that the form’s language is the “necessary implication” the government needs in order to discriminate, though it “would be a stretch,” Ms. Cross said.
The argument would likely come down to analysing the intent of the legislators who drafted the bill, she said: Did they draft the schedule just for convenience, or specifically to ban gay marriage?
The fact that the law and accompanying form were drafted in 1925 might work in favour of someone challenging discrimination, she said, given the fact that lawmakers likely didn’t even consider gay marriage at the time.
“That could be your opening,” she said.
Finally, Ms. Cross pointed to a “public morality” clause in the Constitution, which states that the right to marry can be limited in the interests of “public order, public morality, or public health.”
Since there is a strong anti-gay sentiment in many Caribbean countries, Ms. Cross said, the government may be able to make a strong argument for discrimination.
“It’s kind of interesting because there’s a broad protection [in the Constitution] for everyone, but there are little loopholes here and there,” she said.
The two VI attorneys and Mr. Tomlinson all said they aren’t aware of any legal cases regarding the issue going to the Eastern Caribbean Supreme Court, and no cases are posted on the ECSC’s website.
Mr. Tomlinson – who is now working for the Canadian HIV/AIDS Legal Network after reportedly having to leave Jamaica because of death threats due to being “exposed” as gay – is currently advocating for other rights for gay people in the Caribbean.
In March, he argued in front of the Caribbean Court of Justice that laws in Belize and Trinidad and Tobago that restrict homosexuals from entering the respective jurisdictions are contrary to the Caribbean Community’s freedom-of-movement provision established by the Treaty of Chaguaramas.
Mr. Tomlinson also reportedly challenged Jamaica’s anti-sodomy laws in the Inter-American Commission on Human Rights in 2011 on behalf of two gay men allegedly discriminated against by Jamaican police, but those laws are still on the books.
He said he continues to fight for homosexual rights not only because he is a gay man, but also because homophobia has detrimental public health effects.
Obama touts gay marriage decision as
By KEN SILVA
Before Friday, gay marriage was prohibited in the United States Virgin Islands and 14 US states.
Now, it is a right throughout the nation of some 319 million people.
The US Supreme Court’s decision on the matter was five to four, with the majority explaining that discrimination on the basis of sexual orientation violates the US Constitution’s 14th Amendment, which says that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.”
The four dissenting justices, however, voiced concerns that such sweeping changes by the judiciary were anti-democratic.
“When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say,” wrote Chief Justice John Roberts. “But today, the court puts a stop to all that. By deciding this question under the Constitution, the court removes it from the realm of the democratic process.”
But the five justices who handed down the majority decision stated that the issue was a constitutional one on which the democratic process should have no bearing.
“It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process,” Justice Anthony Kennedy wrote. “The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry.”
USVI on board
While President Barack Obama hailed the legalisation of gay marriage as a “victory” and “progress,” others in the US government were strongly opposed to it, with Texas Senator Ted Cruz going as far as calling for states to ignore the ruling.
In the USVI, however, officials announced that they will comply, and Superior Court Presiding Judge Michael Dunston said that changes will have to be made to the territory’s laws, according to the Virgin Islands Daily News.
The newspaper reported that the USVI’s laws define marriage as a civil contract between male and female, and explained that certain statutes using gender-specific language such as “inheriting debts incurred by the wife” will need to be amended.
In the VI
As in the US, there was a mixed reaction in the VI when the announcement was made.
In an online discussion on the Facebook page BVI National Forum, one commenter suggested that this territory should also legalise gay marriage.
But a detractor replied, “Just because other countries folded, does that mean the BVI should automatically follow suit?”
Some of the territory’s social commentators also came out against same-sex unions, and Premier Dr. Orlando Smith reportedly told BVI Platinum that the territory has no plans to legalise gay marriage.
But while such legislation might not happen anytime soon, it’s possible that a court challenge could bring change.
The VI Marriage Ordinance does not define marriage as a male-female relationship, nor does it specifically prohibit same-sex marriages. Meanwhile, the Constitution prohibits discrimination on the basis of sexual orientation, though there may be exceptions to that provision (see main story).
“I concentrate in the area of human rights and HIV, and work to tackle homophobia because it’s proven to increase HIV,” he said.
At least one study seems to back up Mr. Tomlinson’s assertion. The US National Institutes of Health published a study in 2006 that found that of 2,881 gay men, those in domestic partnerships or marriages with their partner have a “statistically significantly” lower rate of HIV and other sexually transmitted diseases.
The study suggested that a more socially tolerant community leads to a healthier population because gay men, for example, are less likely to resort to tactics such as marrying women to hide their homosexuality – thus putting the women at risk of contracting the disease in the process.
“Societal and legal recognition have an impact on the maintenance of safer sex behaviours,” wrote Dr. Jeffrey Klausner, a professor of medicine in the Division of Infectious Diseases and the Program in Global Health.
Arguments against same-sex marriage often hinge largely on assertions that it undermines the “traditional” family, hurting children and parents in the process.
An article by the Washington DC-based Christian advocacy group Family Research Council, titled “Ten Arguments From Social Science Against Same-Sex Marriage,” cites studies that suggest girls without fathers are prone to early teen pregnancy; children raised by same-sex couples are more likely to experience “gender and sexual disorders;” and traditional marriages “domesticate” men, leading to lower rates of alcoholism and higher age expectancies among males.
In the VI, many residents have come out strongly against gay rights — so much so that one of the VI attorneys interviewed for this article said that he did not want to be named because he feared backlash from community members who oppose homosexuality.
When the UK Order in Council decriminalised gay sexual activity in 2000, Methodist Reverend Charlesworth Browne offered strong words.
“We have to ensure the floodgates of decadence do not open to this,” he said. “Evils are all around us, not just this one thing.”
Last year, another pastor, Reverend Bentley Thomas, spoke out against homosexuality during the annual Emancipation Service at the Sunday Morning Well, which was attended by Premier Dr. Orlando Smith, Education and Culture Minister Myron Walwyn, Communications and Works Minister Mark Vanterpool, and other leaders.
At the service, Mr. Thomas said slavery has deconstructed gender roles in black society, leading young people to become gay.
This week, Bishop John Cline, the senior pastor at New Life Baptist Church, said the US ruling is not a good thing for VI culture.
“This will impact the moral fibre of our community because a lot of tourists come from the US mainland,” he said. “If they think it’s okay there, they’ll come to the BVI thinking open behaviour as far as same-sex activities is okay.”
Mr. Cline said he wouldn’t go as far as banning gay people from entering the territory, but he added that the government should make it clear that they should “adhere to our moral code.”
“The government needs to come out and make a statement that even though it’s legal in the US, this is not the US: This is the BVI,” he said. “Similarly to when you go to places such as Saudi Arabia, you have public morals you need to adhere to.”