Wednesday, December 07, 2016

Gay Marriage Judgment

An Imaginary Gay Rights Trial in the High Court of Anguilla
Matthias Charles v Attorney-General of Anguilla [2016 High Court.]
[1]     Judgment:  A few weeks ago I described a scenario which is a variation on a High School moot from Grenada.  I posed the question then, if, instead of this being a Grenadian scenario it was Anguillian one, and if this were an Anguillian case brought under the Anguilla Constitution, and if you were counsel arguing for one of the parties, what would your submissions likely be?  I promised then that after a decent interval to receive your submissions, I would deliver judgment.  Well, shame on you, no one offered any submissions.  So, I have had to do the research myself.  Here, then, is my “judgment”.
The Facts
[2]     Matthias Charles was a male Anguillian who emigrated to Canada and took out Canadian citizenship.  Greyson Williams is also a male Anguillian who similarly lived in Canada.  Matthias and Greyson were married in Canada in August 2005, shortly after same-sex marriages were legalised there.  Subsequently, they frequently visited Anguilla, and jointly purchased property in here.
[3]     Greyson died in Canada in January 2016, and at his request was buried in Anguilla next to his parents in the St Mary’s Anglican Church Cemetery in The Valley.
[4]     Matthias Charles applied to the Registry for a Grant of Letters of Administration to Greyson’s estate.  He exhibited a copy of his marriage certificate evidencing his marriage to Greyson.  The Registrar refused to process the application on the basis that marriage in Anguilla is only recognised as between a man and a woman.
[5]     Matthias filed a Constitutional Motion claiming that the Registrar’s decision violates section 13(2) of the 1982 Constitution of Anguilla.  He claims that he is being treated in a discriminatory manner based on his sex.  He seeks a declaration that the Registrar’s decision violates section 13(2) of the Constitution.
The Issue
[6]     The first issue argued by the parties was whether the limitation in the Marriage Act of the right to marry to a man and a woman prevents a same-sex surviving spouse from applying for a Grant of Letters of Administration in Anguilla.
[7]     The second issue argued was, if the limitation (in the Marriage Act) of marriage to a man and a woman does prevent such an application, is the Marriage Act inconsistent with section 13(2) of the Anguilla Constitution 1982, and in need of amendment to preserve it.
[8]     The third issue, which the court on its own initiative considers applicable, is whether these facts merited a constitutional motion.
The Constitution
[9]     Matthias relies on section 13 which prohibits any law which is discriminatory. It reads:
Protection from discrimination on the grounds of race, etc.
13.-(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.
(3) In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed or sex whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
The Cases
[10]   This is the first gay-rights case to be brought in a court of the Eastern Caribbean.  There is no precedent or guidance which can be found from our court to assist us in deciding what is right in this case.  However, there are at least three leading authorities from the Western Caribbean relevant to the question whether a law that criminalises homosexuality or homosexual acts in private between consenting adults, or that discriminates against the marriage of two persons of the same sex, is constitutional.  These are:
Leonardo Raznovich v Attorney-General of the Cayman islands delivered by the Immigration Appeals Tribunal on 20 July 2016; and
Caleb Orozco v A-G of Belize [No 668 of 2010], delivered by Chief Justice Kenneth Benjamin on 10 August 2016; and
Maurice Tomlinson v The State of Belize [2016 CCJ 1], a judgment of the Caribbean Court of Justice.
[11]   Leonardo Raznovich, was a professor at the Truman Bodden Law School.  He organized a series of public lectures on human rights, including rights for homosexuals.  Subsequently, he was told that his contract with the college was not being renewed.  With the loss of his employment, the Immigration Department told him he must leave the country.
[12]   His British spouse of 16 years was also a lawyer.  He held a work permit to work for a law firm in the Cayman Islands.  Mr Raznovich’s spouse submitted an application to have Mr. Raznovich listed as a dependent on his work permit, so that he could stay in the Cayman Islands.  They were married in 2012 in Mr Raznovich’s home country of Argentina, where same-sex marriages are legal.
[13]   The Immigration Board indicated it did not have the power to accommodate the request, which was routinely approved for married couples of a different sex.  The lecturer faced the prospect of being deported.
[14]   Mr. Raznovich and his partner appealed the decision on the grounds that the differing treatment of same-sex couples is discriminatory and contrary to the Cayman Islands Constitution.
[15]   The Immigration Appeals Tribunal (IAT) heard the case.  On 22 July 2016, it found that the Cayman Islands Constitution leaves no room to discriminate against same-sex married couples.  It granted Mr Raznovich’s application to be added to his spouse’s work permit as a dependent.  The Cayman Islands Government decided that there was no hope of success in filing an appeal.  It made a public announcement to that effect, thus ensuring that this was a final decision binding on the Immigration Department.
[16]   In the Caleb Orozco case from Belize, Mr Orozco was a Belizian gay rights activist.  He brought an action in the Belize High Court for a declaration that the section 53 of the Criminal Code which provided that “Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years” contravenes his constitutional rights under sections 3, 6 and 14 of the Belize Constitution and is accordingly null and void and of no effect to the extent that it applies to carnal intercourse between persons.
[17]   Mr Orozco claimed that he was a homosexual male and a health educator.  He testified about his experiences up to the age of 15 years when he accepted that he was a homosexual.  He spoke of being aware from the age of three years that he was regarded as different from other boys and his non-tradition traits, interests and behaviour were the subject of ridicule.  Conflict arose between him and his father and siblings.  At school, he was taunted and called disparaging names.  He was the object of constant harassment mocking and stigmatisation which cause him to be angry and very depressed as a teenager.  As an openly gay man in Belize he was the victim of violence, hostility and discrimination.  He described four incidents involving vulgar abuse and menacing threats of violence.
[18]   Additionally, there was evidence that many gay men shunned being tested for HIV/AIDS because of the stigma and discrimination against gay men in the society which was reinforced by criminalisation of sex between consenting adult men.
[19]   At their own request, the Roman Catholic Church of Belize, the Belize Church of England, and the Belize Evangelical Association of Churches were joined to the action as Interested Parties.  They gave evidence and made legal arguments through counsel seeking to counter the claims of Mr Orozco.
[20]   After hearing argument on behalf of the parties, Chief Justice Kenneth Benjamin ruled that Mr Orozco had been discriminated against on the basis of his sexual orientation by virtue of section 16(1) and (3) of the Belize Constitution, and that there was an ongoing violation of his right under section 6(1) to equality before the law and the equal protection of the law without discrimination.  He found that the constitutional prohibition against discrimination on the basis of sex extends to one’s sexual preference.  He concluded that section 53 contravened sections 3, 6 and 16 of the Belize Constitution to the extent that it applied to carnal intercourse against the order of nature between persons.  He ordered the government to pay his legal costs.  The Belize government has indicated it has no intention of appealing Chief Justice Benjamin’s judgment.  This judgment is therefore conclusive of the legal position in Belize.
[21]   I also considered the 10 June 2016 judgment of the Caribbean Court of Justice in the gay rights Maurice Tomlinson case, but it does not appear to assist with any of the issues raised in this dispute.
[22]   How do the first two cases apply to Anguilla?  It may be argued that neither of these decisions is binding on us, as they are foreign judgments.  But as C-J Benjamin put it at paragraph [59] of his judgment,
In construing the human rights provisions of the Constitution in these proceedings, I have taken the liberty of examining the jurisprudence of international bodies as an aid to interpretation.  It cannot now be gainsaid that the streams of domestic law and international law ought to flow in the same direction in establishing the fundamental norms applicable to the rights conferred by the Constitution. 
[23]   The Courts of the Eastern Caribbean similarly permit foreign judgments to be produced for the assistance of the Court.  So, while neither of these judgments is binding on the administrative tribunals and courts of Anguilla, it is likely that they will be found to be of strong persuasive authority.  They both relied on constitutional provisions that are similar to those in the Anguillian Constitution.  The fundamental rights sections of the Belize Constitution may be said to be more developed than Anguila’s in that it contains sections specifically protecting Belizians’ rights to privacy, human dignity, as well as to equality of the sexes and freedom from discrimination.  But, the Anguillian discrimination section on which Greyson relies is similar to both the Belize and the Cayman Islands sections of their Constitutions.
Application of the law
[24]   One may well query whether Matthias has any need to apply for Letters of Administration.  If all Matthias and Greyson’s property in Anguilla is owned jointly by them, then, by the “Law of Survivorship”, on Greyson’s death all Greyson’s property will continue to be owned in its entirety by Matthias.  No Grant of Letters of Administration is needed by Matthias.  The Grant will not give him anything he does not already own by the Law of Survivorship.
[25]   There is perhaps an even more important procedural point that stands in the way of Matthias making a claim of this sort.  Assuming there was some need for Matthias to apply for Letters of Administration, which there is not, a refusal by a Registrar to process an application for Letters of Administration is not final.  Under the non-contentious probate rules, when a Registrar wrongfully refuses to process an Application for a Grant of Letters of Administration, the law provides a right of appeal to the Judge.  From the facts before us, it appears that Matthias has not exercised his right of appeal to the Judge.  It may well be considered by a court to be a waste of court time to hear argument, and to rule on this constitutional motion, before Matthias has exercised his right of appeal to the Judge and argued the merits of his case there.
[26]   Entirely as an aside, as it is not properly before me for decision, I accept that the Marriage Act of Anguilla permits marriage in Anguilla only between a man and a woman.  The consequence of that is that, if two men applied in Anguilla to be married to each other, such a marriage would be in breach of the provisions of the Marriage Act, unless the Marriage Act itself was declared by a Court to be unconstitutional.
[27]   There is no reason to believe that the Courts of Anguilla would come to a different conclusion to the Cayman and Belize courts if an anti-discrimination case were to be brought today challenging the legality of the Marriage Act, and obliging the governor to issue a marriage licence and obliging marriage officers to perform gay marriages without any further amendment to the Constitution of Anguilla.
[28]   In other words, it may well be open to a gay couple one day to claim that the Marriage Act of Anguilla contravenes section 13 of the Constitution of Anguilla which guarantees their right to equal treatment under the law.  This imaginary gay couple may well seek a declaration that it is illegal for a Marriage Officer in Anguilla to refuse to marry them.  A High Court in Anguilla may well find itself guided by the Raznovich case and the Orozco case.  The Court may proceed to find the provision in the Marriage Act unconstitutional.  It may even award damages against any Governor who refused to issue a marriage licence.  It might also award damages against any marriage officer who refused to conduct their marriage.  However, that is not the question before us today.  There is no constitutional challenge to the Marriage Act.  The only challenge is to the Registrar’s refusal to grant Letters of Administration.
[29]   In conclusion, and for the reasons given above, I would dismiss the Constitutional Motion before the court on the ground that the allegedly wrongful act of the Registrar in refusing to process the Application for Letters of Administration was subject to an appeal to the High Court Judge which appeal was not taken up.  It is an abuse of the constitutional motion process for this process to be used as a substitute for the proper process of appeal to the judge.  As I have not heard any argument on the merits of an appeal to the judge against the decision of the Registrar, I decline to order the Registrar to process the Application for Letters of Administration.  Matthias Charles must apply to the judge to overrule the Registrar’s refusal to deal with his application.
[30]   The Attorney-General has not asked for costs.  If he had asked for costs, I might be minded to make an order for costs to be paid personally by counsel for the Claimant, for having wasted the court’s time on this constitutional motion.  As it is, the motion is dismissed with no order as to costs.
Revised 5 May 2017 to reflect the same-sex judgment of the High Court in Bermuda, an account of which can be read here: