Don and Maggie's Christmas Letter

 

DON AND MAGGIE MITCHELL

OWEN LANE, NORTH HILL

P O BOX 83, THE VALLEY

AI-2640 ANGUILLA, BWI

 

Cellphones: (264) 235 8654

(264) 235 7896

Emails: idmitch@anguillanet.com

mmmitch@anguillanet.com

 

 

12 December 2021

Don and Maggie wish you a Happy Christmas and a Prosperous and Healthy New Year in 2022.  Our news for the past year has not been spectacular.  If the truth be told, it is quite banal.  But for what it is worth, here it is. 

Maggie and Don in April 2021 courtesy of Rado

The year has been mercifully free of any legal work for Don.  With his failing memory and general decline in mental and physical faculties (which he will tell you all about in agonising detail if you ask) he has been spared embarrassment.  The closest thing to legal work has been his faithfully attending all the government’s constitutional reform public meetings to show his support for the reform movement.  They were mainly held in churches throughout all seven electoral districts.

 

At a Town Hall Constitutional Reform meeting (The Anguillian)

The only excitement at these meetings was provided by a reverend pastor.  He appeared confused about the purpose of the butt plug sex toy which he insisted was required to be worn by injured homosexuals.  He appeared obsessed with the prurient details and harangued each constitutional meeting, particularly those held in churches, with the need to ensure the new Constitution contains a provision limiting marriage to one between a man and a woman.  The Constitutional and Electoral Reform Commission had no view on the topic.  My preference is not to discriminate against gays and lesbians.

Maggie too is now fully retired.  We mentioned last year that when her friend Gabby retired from WISE, she retired too (for years she volunteered at this school for students with problems with conventional education).  In addition to reading, she now occupies herself with being a board member of the Anguilla Mortgage Company and helping the Secretary with the Minutes.  She also continues her Aquarobics exercise program three times a week.

Don has spent the year busying himself with the garden.  He has mainly been planting fruit tree slips.  In this his 76th year, he understands he is planting them mainly for the benefit of the grandchildren. 😊

We were mercifully spared from any hurricane visits this year, though it was forecast to be a dangerous one for the Caribbean.  The problem is that, as a result, our rainfall has been dismal.  In our area of Anguilla, North Hill Village, the rain that we have measured on our roof to today’s date totals 17.9 inches for the year.  That is nothing short of catastrophic.  Average annual rainfall for the island is 40 inches.  We have had less than half of that amount.

 

The papayas we’ll eat ourselves

The herb garden is especially productive since he has become a manufacturer of compost on an industrial scale.  Both the Orchards and the herb garden benefit from drip irrigation systems.  Now, instead of going from tree to tree or pot to pot applying scarce water, he simply turns on the tap for the requisite amount of time, and waits for the timer to sound, at which point the tap is turned off.  He grows all the herbs and vegetables in 15-gallon pots, well fertilized with compost.

 

The herb garden

The compost factory in our back yard consists of five 32-gallon bins filled with dry leaves, cardboard, cow-patties, and clippings.  A bin takes approximately 3 weeks to convert from the natural ingredients to rich, earth-smelling compost.

 

The Compost Factory

The main garden project has been the digging and planting of three Pandemic Orchards around the property.  He started in March of this year, and, as each of the Mimosa, Loblolly, and Cedar trees had to be dug out with a pickaxe, hoe and shovel, they took months to clear.  The boulders that line the beds shown in the photographs were all manually excavated by him.

 

Pandemic Orchard No 1 under construction and completed

Orchards Nos 2 and 3 are only now being populated with fruit trees (small slips, really).

The only thing that keeps our plants alive is the daily two litres of water that we measure out to each of them through our drip irrigation systems.  Do bear in mind that the only water we have in our yard is what we collect on our roofs.  There is no public water supply to our area of North Hill.

Orchard No 3: Construction begins (chicken coop in the rear)

We did a Caribbean cruise in August.  The main objective was not enjoyment but avoiding the need to host his 75^th birthday party onshore.  We could not face the exhausting prospect of having 300 people around for the festivities (the minimum that Don’s entertainment standards would have required).  So, we escaped on a Celebrity liner from Sint Maarten to Barbados, to Curacao, to Aruba, and back to Sint Maarten, for seven days.  Our friend Kathy Haskins of Shoal Bay Villas Hotel (the most sought after, reasonably priced, luxury vacation destination in Anguilla) came with us and helped organise the more difficult aspects of booking the cruise, vaccination protocols, ground tours, etc.

 

Maggie enjoying a guided tour in Aruba in April!

The ship’s crew treated us royally.  The Celebrity Summit was fully crewed, though only about 30% of the berths were filled.  The price was less than half of the normal, and we were upgraded from a cabin with a window to one with a balcony with sliding glass doors, all with the compliments of the captain.  Booze, internet, and tips were included, so we felt we were royally treated (in our case the booze bill is usually the equivalent of the cost of the cabin, I beg your pardon, “the stateroom”).

Don’s birthday dinner on board ship

We hope you have all had your double shots or jabs, and the boosters as well, as we have.  We can still get infected, but the likelihood of us getting seriously ill or dying from the bug becomes microscopic.  It appears that we are supposed to expect more and more variants over the coming five years at least.  Welcome to the New Normal.

Don and Maggie

Wallblake Airport and Tintamarre During WW II

 

I have been asked if the original airstrip at Wallblake in Anguilla, built in 1943 during WW II, resulted from the Lend-Lease Agreement between the British and US governments during the War.  The answer is no, but the story is complicated.

Most of my information comes from the author, Patrick Leigh-Fermor.  Bored with England, he took off as an 18-year-old in 1933 to walk from the Hook of Holland across Europe to Constantinople in Turkey.  He finally ended up in Greece where he remained until war broke out and he returned to England to join up.  Because of the fluency he had developed in Greek, he was soon recruited as an intelligence officer by the Special Operations Executive.  The SOE parachuted him into Crete behind the German lines.  His best-known exploit was his role in the kidnapping and evacuation of the German commander, Major General Heinrich Kreipe, from Crete to Mersa Matruh in British-held Egypt.  These events were the subject of the 1957 film Ill Met By Moonlight, in which he was played by the actor Dirk Bogarde.

 The Traveller’s Tree

Shortly after the end of the War, in 1948, he accompanied his friend the Greek photographer, Costa Achillopoulos, on a trip to the West Indies.  Leigh-Fermor came along as interpreter for Costa who had a commission to publish a book of Caribbean photographs.  Leigh-Fermor was to write the captions for the photographs.  For the Leeward Islands segment of their trip, they chartered the Rose Millicent from Anguillian sloop-owner, Zylphus Fleming, and explored the islands in it, with Zylphus at the helm.  He took profuse notes of what he saw, and these notes were the basis for his first book, The Traveller’s Tree, published in 1951.

 

Remy de Haenen

Leigh-Fermor appears to have had access as an ex-SOE officer to confidential intelligence files in London.  These files were the source of his description of Remy de Haenen’s leasing of Flat Island from its owner, Leo Constant Fleming of Marigot in French St Martin.  Flat Island, or Tintamarre as it is known by the French, lies two miles to the east of St Martin.  It was then uninhabited, but the previous owner, Diederick Christian van Romondt (DeeCee) of Mary’s Fancy in St Martin, lived on it in the first three decades of the twentieth century and farmed cows, sheep, and goats on it.  The ruins of his home are still visible.  DeeCee sold the island to LC Fleming in 1931.  The 500-acre Mary’s Fancy Estate is of particular interest to Anguillians.  DeeCee left it to his mistress, Miss Josie, in his Will.  She in turn willed it to Ronald Webster, who was employed by her on the Estate.  He broke it up and sold it off to fund the 1967 Anguilla Revolution.

 

Ruins on Tintamarre

According to Leigh-Fermor, De Haenen was a German intelligence officer, an agent of the Abwehr.  His mission was to secure a replenishing base for any German U-Boats that might become active in the Caribbean Sea in the event of War.  His cover was that he was a French pilot in the service of the French post office.  He obtained the contract to collect and deliver the mail by air among the French West Indies.  Leigh-Fermor describes how de Haenen delivered the mail to St Martin.  He writes, probably from first-hand observation, that there was no air strip in St Martin.  De Haenen would circle his single engine aeroplane around the football field in Marigot, playing out a rope with a hook at the end of it holding the bag of mail he was delivering.  When the bag became almost stationary in the middle of the field, the postmaster would run up to it, drop the bag and then hook up the return mail for delivery to Guadeloupe.  De Haenen would winch the bag up and fly off, job done.

Edgar Oliver Lake recalls that up to the early 1950s de Haenen occasionally used a similar system to deliver mail to Anguilla.  Either to save fuel or the inconvenience of a Wallblake airstrip landing, he would lower his speed and altitude over the old Courthouse/Treasury/Post Office building on Crocus Hill and no doubt compensating for wind drift drop a packet of Anguilla’s mail in the courtyard.

Wallblake airstrip in 1967

With the permission of Mr Fleming, de Haenen cleared an airstrip on Flat Island and constructed a small forge on it.  The ostensible need for the airstrip was to train learner pilots to land and take off.  The forge was used for minor U-Boat repairs carried out at night when the Boats could surface unobserved.  For the use of the crews, he collected and stored fresh Dominican fruit and vegetables and flew in tinned foodstuffs from Puerto Rico.  Fleming’s permission was subsequently formalised in 1945 in a lease, and de Haenan used Flat Island as the headquarters of his short-lived airline company, Companie Aerienne Antillaise (CAA).  He taught several young men of the region to fly using the 500-metre long dirt track until operations of CAA ceased in 1952.

An elderly Anguillian friend of mine, the hotelier David Lloyd, was a sailor before and during the War.  I knew him as one of the founders of the Anguilla Rotary Club in 1978, and we often spoke.  He told me of the many trips he and other Anguillian sloop owners made for de Haenen, fetching foodstuffs, fruit, and water to Flat Island.  He thought at the time that they were for smuggling into St Martin.  St Martin was then in French Vichy hands until the British sent four armed policemen from St Kitts to capture it.  It was only after the War that the sloop owners learned what the purpose was of their visits to Flat Island.

Eden Rock Hotel in its prime

After the War, De Haenen converted his home in St Barths into the famous hotel, Eden Rock.  He went into local politics and became Mayor of St Barths.  In the early 1980s he was my client.  When he visited my law chambers, I would press him on the truth of the stories of his exploits during the War.  He always denied them, and claimed they were invented by his enemies.  But it seems to me that Leigh-Fermor had no reason or opportunity to become his enemy, as he was just passing through the West Indies.

The details of the clandestine arrangements between de Haenen, the German Abwehr, and LC Fleming, as described by Leigh-Fermor, could only have been written by an Intelligence Officer who had access to secret files.  As a result of his agreement with de Haenen, LC Fleming reputedly became the richest man in St Martin.  His family still to this day enjoy the proceeds of the Nazi gold he was paid for the use of Flat Island.

As I recall it, this bit of Second World War history written by Leigh-Fermor was where I first read a very short account about the construction in Anguilla of the grass-covered airstrip by the US Army Corps of Engineers after the US joined the War in late 1941.  Leigh-Fermor describes it as having been built as an emergency landing strip in early 1942 for the use of US ‘planes flying on their way to and from Puerto Rico and the Coolidge Air Base in Antigua.  It was only ever intended as a place where ‘planes could land if they experienced an emergency in mid-flight.  If any of them landed in Anguilla during the War, I never heard.  There was no air service to Anguilla until LIAT started one in the 1960s.  LIAT’s founder, Frank Delisle, my mother’s cousin, told me that he was one of those taught to fly on Flat Island by de Haenen shortly after the War.  Still visible on Flat Island to this day are engines and other parts of disabled aeroplanes dating back to the time when de Haenen taught West Indians to fly.

The Anguillian air strip, originally known as Wallblake Airport, was not part of the 1941 Lend Lease program.  The 1940 Destroyers for Bases Agreement was an earlier project in which the British received moth balled First World War US destroyers in exchange for long leases of land to the US Army, Air Force and Navy for bases in Trinidad, St Lucia, Antigua, and other British colonies in the West Indies.  The US had not yet entered the War, and Roosevelt was blocked by Congress from giving the British military aid.  So, he and Churchill hit on this exchange of assets device as a way round Congress.  When the Lend-Lease Act of 1941 was passed by Congress it officially sanctioned the earlier agreement between Roosevelt and Churchill.

By 1941, Britain and its Empire was the sole holdout against the Nazi armed forces.  More British shipping was being sunk in the Caribbean Sea by U-Boats than was sunk around the entire coast of Europe.  This was due to the importance of the Panama Canal to the British for trade, and the oil fields and the oil refinery of Trinidad for fuel.  The Texaco oil refinery in Trinidad was at the time the largest in the Empire.  Indeed, the Battle of Britain was fought on Trinidadian aviation fuel.  Wallblake and Flat Island were part of these wartime events, not that you will read about them in any official account of World War Two.

Gender Studies

 

Gender studies is a perfectly respectable area of social study in academia, first coming to prominence in West Indian intellectual circles in the 1970s and 1980s and continuing.  It approaches our deep-rooted gender inequalities in the Caribbean demonstrated, for example, in the types of jobs women are in.  It studies and explains sexism, racism, classism, and other systemic inequalities.  It attempts to explain the irony of the patriarchy coexisting within a system of matriarchal families, and our long tradition of female economic autonomy.

Distinguished Caribbean academics such as Christine Barrow, Edith Clarke, Keith Hart, Donna P Hope, Patricia Mohammed, Rhoda Reddock, Olive Senior, Catherine Shepherd, Raymond Smith, and Kevin Yelvington, to mention a few, have researched how sexual orientation and gender in the West Indies are conceived, studied, discussed, and experienced.

There are hundreds of books and dozens of academic journal articles on the subject.  “The Caribbean Review of Gender Studies”, is a highly thought of journal of the University of the West Indies, focusing on publishing research on gender studies.

Perhaps the most threatening area of all this research has been the study of how dominant masculinity has persisted and resisted the extending of civil rights to women.  The patriarchy is not happy with gender studies.

The result in recent years has been a public onslaught on the so-called “gender ideology”.  These attacks are backed by extremist Christian and Muslim clerics and organisations.  The one thing these groups agree on is that the traditional family is under attack.  They believe children in the classroom are being indoctrinated to become homosexuals, and that “gender” is a dangerous, if not diabolical, ideology threatening to destroy families, local cultures, civilization, and even “man” himself.

Evangelicals and other fundamentalists make such incendiary claims to defeat what they see as “gender ideology” or “gender studies”.  They object to “gender” because it is said to deny biological sex, and it undermines the natural or divine character of the traditional family.  They fear that, if we start thinking along gender lines, men will lose their dominant positions.  They believe that children are being told to change genders.  They preach that our children are actively being recruited by gay and trans people, and our boys and girls are being pressured to declare themselves as gay in educational settings where an open discourse about gender is caricatured as a form of indoctrination.

These extremists worry that if something called “gender” is socially accepted, a flood of sexual perversions, including bestiality and paedophilia, will be unleashed upon the earth.  Anyone who listened to or participated in the Constitutional Reform Town Hall Meetings held in Anguilla over the past several weeks, will recognise this language.  It captures the rhetoric and the reasoning used by the Christian fundamentalists who addressed the meetings.  Our Christian fundamentalists make the outlandish demand that any new Constitution must contain a clause confirming that the only marriage that will ever be recognised in Anguilla is one between a man and a woman.

The principal aim of this woman-hating and homophobic movement is to oppose progressive legislation won in the last decades by the gay, lesbian and feminist movements all over the world.  In attacking “gender” they oppose reproductive freedom for women and the rights of single parents.  They oppose protection for women against rape and domestic violence.  They deny the legal and social rights of homosexuals.  They oppose legal and institutional safeguards against gender discrimination.  They support conversion therapy, forced psychiatric internment, brutal physical harassment, the killing of gays, and the criminalisation of abortion.

It is easy enough to debunk and even ridicule many of the claims that are made against gender studies or gender identity, since they are based on thin caricatures.  The truth is there is no single concept of gender.  Gender studies is a complex and internally diverse field that includes a wide range of scholars.  It does not deny sex, nor does it threaten any unbigoted male.  It tends to ask how sex is established, through what medical and legal frameworks.  It explains how our understanding of sex has changed through time.  It examines what difference it makes to the social organization of our world to disconnect the sex assigned at birth from the life that follows, including matters of work and love.

We generally think of sex assignment as happening once.  But what if it is a complex and revisable process, reversible in time for those who have been wrongly assigned?  To argue this way is not to take a position against science, but only to ask how science and law enter the social regulation of identity.  “But there are two sexes!”  Generally, yes, but even the ideals of two distinct forms of male and female that govern our everyday conceptions of sex are in many ways disputed by science.  Research has shown how vexed and consequential sex assignment can be.

Fundamentalists and extremists claim that the very concept of “gender” is an attack on Christianity or traditional Islam.  They accuse those who discuss “gender” of discriminating against their religious beliefs.  And yet, it is evident that the enemies of freedom do not come from the outside.  Acceptance of blind dogma is to be found on the side of the would-be censors.

Opponents of “gender” seek recourse in the Bible and Koran to defend their views about the natural hierarchy between men and women.  They push the distinctive values of masculine and feminine (although progressive theologians have pointed out that these are based on debatable readings of the early texts).  They claim that assigned sex is divinely declared, suggesting that contemporary biologists and medical doctors are curiously in the service of 13th-century theology.

Chromosomal and endocrinological differences complicate the binarism of sex.  The evidence is that sex assignment is sometimes revisable.  The anti-gender advocates wrongfully claim that “gender ideologists” deny the material differences between men and women.

The anti-gender movement is not a conservative position with a clear set of principles.  It is a fascist trend.  It mobilizes a range of rhetorical strategies from across the political spectrum to maximize the fear of infiltration and destruction that comes from a diverse set of economic and social forces.  It does not strive for consistency, for its incoherence is part of its power.

It is depressing to see that there are even a few women who have joined this homophobic, misogynistic, and anti-liberal movement.  No freedom loving Anguillian should be opposed to gays and lesbians having the same marriage rights as we heterosexuals.  Thankfully, there is hope in the coming generation of leaders.  They generally do not subscribe to two-thousand-year-old views on sex and gender.  As always, the youth are the future.[1]

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[1]     With thanks to an article by Judith Butler, visiting distinguished professor of philosophy at the New School University in New York, and published in the Guardian Newspaper of 23 October 2021, the source of much of this article:  (https://www.theguardian.com/us-news/commentisfree/2021/oct/23/judith-butler-gender-ideology-backlash).

The Right to Marriage

 

The right for gay people to marry is a fundamental human right, recognized by dozens of countries around the world.

I am confident that if a poll were taken today in Anguilla, most persons would be in favour of giving gays and lesbians the same right to marry as heterosexuals presently enjoy.  Yet, a voluble minority still oppose it.

Many liberal church members, in all religions, have been outspoken supporters of gay rights.  Movements within churches, have been aiming for a wider acceptance of gay rights.  However, some religious leaders have been accused of sparking hatred and violence by arguing against gay rights.

Because of their very verbal opposition, some church leaders are guilty of causing suicides, murders, and great suffering for members of the gay and lesbian community.  By preaching against gay rights, church leaders have furthered discrimination and vengeance upon the gay community.  In addition, by turning away from gays and lesbians, churches have added to the alienation felt by same sex couples.

We can obtain some guidance on how to view the question of gay marriage by looking at what happened in the United States.  There, in 2015, in the case of Obergefell v Hodges, the Supreme Court clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples.[1]  It held that the Constitution requires a State to license a marriage between two people of the same sex.  In so holding, the Court recognized marriage as being an institution of both continuity and change.  Recent shifts in public attitudes respecting gay individuals necessarily informed the Court’s conceptualization of the right to marry.

The Court recognized that the right to marry is grounded in four principles and traditions.  These involve the concepts that

(1) marriage (and choosing whom to marry) is inherent to individual autonomy;

(2) marriage is fundamental to supporting a union of committed individuals;

(3) marriage safeguards children and families; and

(4) marriage is essential to the nation’s social order because it is at the heart of many legal benefits.

With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles.  It concluded that a denial of marital recognition to same-sex couples ultimately demeaned and stigmatized those couples and any children resulting from such partnerships.  Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Constitution.

It is my view that Anguillans ought to embrace the opportunity of the coming new Constitution and to ensure that it includes language that does not stop gays and lesbians from enjoying the right to marry.

In support, we recall the words of Archbishop Desmond Tutu, the prominent anti-apartheid campaigner, Nobel Prize laureate, and Chairperson of the Truth and Reconciliation Commission.  In 1984 he wrote

“Apartheid’s most blasphemous aspect is … that it can make a child of God doubt that he is a child of God.  For that reason alone, it deserves to be condemned as a heresy.”

More than a decade later, he used very similar words to denounce homophobia and heterosexism.  He wrote that it was “the ultimate blasphemy” to make lesbian and gay people doubt whether they truly were children of God and whether their sexuality was part of how they were created by God.

After he retired in 1996, he campaigned actively and successfully for the post-apartheid Constitution to be non-discriminatory in relation to marriage.  In 2013 he made headlines with the clear and succinct statement that he would rather go to “the other place” than to a homophobic heaven.  All freedom-loving people everywhere would happily join Archbishop Tutu wherever he is going to end up.

A second principle in the US Supreme Court’s jurisprudence on marriage is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.  This point was central to Griswold v. Connecticut, which held that the Constitution protects the right of married couples to use contraception.[2]  Suggesting that marriage is a right “older than the Bill of Rights,” Griswold described marriage this way:

“Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.  It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.  Yet it is an association for as noble a purpose as any involved in our prior decisions.”

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.  The Court has recognized these connections by describing the varied rights as a unified whole.  It held that the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Constitution.[3]

Marriage also confers more profound benefits.  By giving recognition and legal structure to their parents’ relationship, marriage allows children

“to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Excluding same-sex couples from marriage conflicts with a central premise of the right to marry.  Without the recognition, stability, and predictability that marriage offers, their children suffer the stigma of knowing their families are somehow lesser.  They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life.  The marriage laws at issue here thus harm and humiliate the children of same-sex couples.

Fourth and finally, jurisprudence and traditions make it clear that marriage is a keystone of our social order.

In Maynard v Hill, (1888), the Court explained that marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress.”[4]  Marriage, the Maynard Court said, has long been “‘a great public institution, giving character to our whole civil polity.”  This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential.

While government is in general free to vary the benefits it confers on all married couples, it has made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities.  These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.

There is no difference between same- and opposite-sex couples with respect to this principle.  Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the government has linked to marriage.  This harm results in more than just material burdens.  Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.  As government itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.  It demeans gays and lesbians for the State to lock them out of a central institution of society.  Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning.

The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.  With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.

New insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. Notwithstanding the gradual erosion of the doctrine of coverture, invidious sex-based classifications in marriage remained common through the mid-20th century.  These classifications denied the equal dignity of men and women. One State’s law, for example, provided in 1971 that

“The husband is the head of the family, and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit.”[5]

Responding to a new awareness, the Supreme Court invoked equal protection principles to invalidate this law which imposed sex-based inequality on marriage.[6]

The present law governing marriage in Anguilla burdens the liberty of same-sex couples.[7]  It abridges central precepts of equality.  Same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right.  Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm.  The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.

These considerations led the Supreme Court in Obergefell v Hodges to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and couples of the same sex may not be deprived of that right and that liberty.  The Court therefore held that same-sex couples may exercise the fundamental right to marry.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than they once were.  Marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  Any new Anguilla Constitution must grant them that right.

 

 

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[1]              https://www.law.cornell.edu/supremecourt/text/14-556

[2]     381 U. S. 479, 484–486 (1965)

[3]     Zablocki, supra, at 384.

[4]     125 U. S. 190, 211 (1888).

[5]     Ga. Code Ann. §53–501 (1935)

[6]     Kirchberg v Feenstra, 450 U. S. 455 (1981)

[7]     This is principally section 13(4)(b) of the 1982 Constitution which permits the House of Assembly to make a discriminatory law on marriage based on the sex of the parties.  The Marriage Act contains no language specifically limiting the right to marry to members of the opposite sex, but it is implied in the language use throughout.