While debating the Marriage (Amendment) Act, 2017, last Thursday, At-large Representative Archie Christian rose to make a suggestion. 

The bill in question is designed in part to promote matrimonial tourism by allowing for weddings at sea and same-day marriage licences, attractive provisions for the charter yacht and cruise industries, respectively.

It also updated the “prohibited degrees” of marriage, outlawing incestuous weddings with a parent, grandparent, sibling or former spouse’s parent.

Mr. Christian, however, wanted to take the prohibited degrees a step further.

“I know this is going to spark a lot of debate in our society, but that’s why I’m here —  to spark debate and to get the public to think,” said Mr. Christian, the junior minister for tourism. “The section that we will perhaps discuss in committee is ‘same-sex.’ What about that category of person?”

His comments drew audible chortles from some members of the House, and opposition member Julian Fraser (R-D3) even jokingly asked, “You in church?”

Still, Mr. Christian continued.

“Are we waiting for someone to tell us when it’s convenient for us to do it?” he asked. “Or we going to be bold and courageous enough to say, ‘We will never [allow same-sex marriage].’ That’s the category I want to see added to this list.”

Already in law?

After Mr. Christian’s contributions, Opposition Leader Andrew Fahie explained why he believes the junior minister’s suggestion was not necessary.

“I must state to be clear: It’s not for any of us to decide whether we’re for or against marriage of the same sex, because our laws already made it clear,” Mr. Fahie (R-D1) said, adding, “The substantial law already states clearly: In the BVI laws, speaking legally, it’s not a recognised marriage in the British Virgin Islands.”

While concluding the debate minutes later, Premier Dr. Orlando Smith voiced his agreement with the opposition leader’s assessment. As he did this, Dr. Smith glanced to Attorney General Baba Aziz, who appeared to nod his head in confirmation.

The assessment apparently agreed upon by these three men, however, may be unsupported: The Beacon has not been able to find any law in the territory explicitly banning same-sex marriage or defining marriage as being between a man and a woman.

And when asked about this apparent disparity, none of the trio — the premier, the attorney general, nor the opposition leader — responded with any legislative proof that same-sex marriage is forbidden here.

A grey area

A Civil Registry official said yesterday that it is the registry’s policy to refuse marriage licences to same-sex couples because same-sex marriages are “not provided for” in the territory’s laws. That statement may not be correct, however, and a same-sex couple could challenge that refusal in court.

“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,” a VI attorney who has argued constitutional cases before the Eastern Caribbean Supreme Court told the Beacon in 2015.

The VI’s Marriage Ordinance includes some gender-specific terms, though oftentimes they are interchangeable and don’t indicate that there needs to be a “wife” in one spot and a “husband” in the other.

The law’s first schedule, however, does include spaces where one person is supposed to fill in their name as either “bachelor” or “widower” and the other fills out as either “spinster” or “widow.”

It could be argued that the form’s language is the “necessary implication” the government needs to prohibit same-sex marriage, though it “would be a stretch,” Jane Cross, a United States law professor and director of Caribbean Law Programs at Nova Southeastern University in Florida, told the Beacon in 2015.

In the absence of a legal 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 told the Beacon in 2015.

Two VI attorneys also noted that even if there was an explicit ban, a same-sex couple might be able to challenge it under the 2007 VI Constitution, which describes marriage as a fundamental right and generally bans laws that discriminate based on sexual orientation.

Mr. Fahie may have alluded to this while speaking during the debate last week.

“Now, if it is challenged, that’s a different case,” the opposition leader said. “That can either be won or not won in the courts.”

Whether that argument would win is uncertain: Though the Constitution prohibits discriminatory laws, Ms. Cross pointed to a subsection that states such legislation can still be constitutional “with respect to adoption, marriage … or other like matters.”

Marriage (Amendment) Act

After their debate last Thursday, lawmakers passed the Marriage (Amendment) Act, 2017. It is unclear if the bill was passed with amendments, and Dr. Smith did not respond to requests for comment regarding that question.

In addition to the provisions designed to promote wedding tourism, the law also drops the age of consent for marriage from 21 to 18.  

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