Can Parliament Impose Gay Marriage?

 

Kinisha Forbes and Kirsten Lettsome of the British Virgin Islands (BVI) are two brave women.  Anguilla seems to have none like them.  In 2011 they entered a civil partnership in the United Kingdom.  They were issued a marriage certificate once the UK’s same-sex couples law came into effect.  The couple are now back in the BVI.  They began a court action against the Attorney-General for a declaration that their marriage is valid under BVI law and that prohibiting same-sex marriage in the Territory is unconstitutional.

The BVI Christian Council applied to the Court to be added to the case as a third party so it could file briefs and argue against the claimants.  After initially allowing the Council to intervene, the judge has now struck them from the case, ruling that their application had no realistic prospect of success.  Besides, given the pressure on the court system in the BVI, it is important to make the best use of its resources.

The matter is complicated by two recent developments.  First, the Privy Council on 14 March 2022 in two appeals from Bermuda and the Cayman Islands ruled that the prohibitions on same-sex marriage in those two Territories were compliant with their Constitutions.  So, unless there is some major difference between the Constitutions of the BVI and those other two Territories, the precedents are against Ms Forbes and Ms Lettsome.

The second complication is the recent Private Member’s Bill laid in the House of Lords by Labour Party peer and gay-rights activist, Lord Michael Cashman.  The Bill seeks to make same-sex marriage lawful in all British Overseas Territories where it is currently unlawful.  That would include the BVI and Anguilla.

No one has asked for my opinion, but I am going to give it anyway.  The Privy Council has the power to pass any law it wishes for the Overseas Territories without being obliged to consult them.  However, all right-thinking Anguillians are opposed to the UK imposing domestic laws on the Overseas Territories without our express consent.  If we are really in a partnership for progress with the United Kingdom, such a unilateral step seems a little offensive.

If our Territories are backward in respecting human rights, someone among us needs to engage our people in a campaign of public information.  We must raise the levels of social consciousness and general education among our people.  It is our responsibility to encourage more liberal attitudes of live and let live.  It is not appropriate in the twenty-first century for Britain to dictate to us in this way, no matter how well-meaning the impulse was.

Additionally, it is for our gays and lesbians to agitate for their rights if they want them.  Freedom, democracy, and human rights cannot be taken for granted.  They must continually be fought for.  If our LGBTQ community came out of the closet and demanded equality, they would get it – albeit perhaps only after an almighty struggle.  If they prefer to keep silent, they will continue to be marginalised and discriminated against.

It is true that the UK has used legislation and Orders in Council in the past to amend our domestic law.  For example, within the last twenty-five years they decriminalised anal intercourse and abolished the death penalty in the Overseas Territories including Anguilla.  However, the difference there was that we asked them to do so.  They took this action at the request of our Heads of Government.  It was not unilaterally imposed on us.  The Minutes of the relevant Heads of Government meetings in London reveal that the Heads in effect told the FCO that they did not dare bring up these two reforms in their local parliaments.  The evangelicals and other extremists would raise a political storm.  It would create major problems if local politicians attempted to usher such Bills through the local Assemblies.

So, as a favour to, and at the request of, our Heads of Government, the FCO put the relevant Orders in Council before the Privy Council.  Once signed, anal intercourse became no longer a matter for the Criminal law, and the sentence of hanging was no longer available for a local court to impose.  There was no outcry from any of the Overseas Territories.  At our request, the Privy Council had intervened to assist us in two touchy matters we were afraid to address.

What is the source and origin of our backward attitude to gay marriage?  On what basis do the self-righteous among us fight so vehemently against our gay and lesbian brothers’ and sisters’ desire to have a normal family life?  The answer is that some of us in the British Overseas Territories are stuck in a time warp.  The barbaric moral rules of the Middle Eastern Bronze Age as adumbrated in the Old Testament Books are still taught in many of our third millennium churches and schools as God’s sacred word.  In many of our infant schools, “creationism” is taught instead of evolution of species.  Instead of elementary geology, our primary schools teach that God created the earth on 23 October, 4004 BCE.  At odd times during the day, our ears are assaulted on the airwaves by religious extremists preaching that Sodom and Gomorrah are about to rain down on us.

An apt response to these fanatics of the airwaves comes to mind.  It is an old one, but a good one.  It is worthy of repetition.  A reminder may even help to bring home that it is nonsense they are preaching:

Dear Evangelical Association,

Thank you for doing so much to educate people regarding God’s Law.  I have learned a great deal from you, and I try to share that knowledge with as many people as I can.  When someone tries to defend the homosexual lifestyle, for example, I simply remind him that Leviticus 18:22 clearly states it to be an abomination.  End of debate.

I do need some advice from you, however, regarding some of the specific laws and how to best follow them.

When I burn a bull on the altar as a sacrifice, I know it creates a pleasing odour for the Lord (Lev 1:9).  The problem is my neighbours.  They claim the odour is not pleasing to them.  Should I smite them?

I would like to sell my daughter into slavery, as sanctioned in Exodus 21:7.  In this day and age, what do you think would be a fair price for her?

I know that I am allowed no contact with a woman while she is in her period of menstrual uncleanliness (Lev 15:19-24).  The problem is, how do I tell?  I have tried asking, but most women take offense.

Lev 25:44 states that I may indeed possess slaves, both male and female, provided they are purchased from neighbouring nations.  A friend of mine claims that this applies to Kittitians but not St Martiners.  Can you clarify?  Why can’t I own a St Martiner?

I have a neighbour who insists on working on the Sabbath.  Exodus 35:2 clearly states he should be put to death.  Am I morally obligated to kill him myself?

A friend of mine feels that even though eating lobster is an abomination (Lev 11:10), it is a lesser abomination than homosexuality.  I don’t agree.  Can you settle this?

Lev 21:20 states that I may not approach the altar of God if I have a defect in my sight.  I have to admit that I wear reading glasses.  Does my vision have to be 20/20, or is there some wiggle room here?

Most of my male friends get their hair trimmed, including the hair around their temples, even though this is expressly forbidden by Lev 19:27.  How should they die?

I know from Lev 11:8 that touching the skin of a dead pig makes me unclean, but may I still play football if I wear gloves?

My uncle has a farm.  He violates Lev 19:19 by planting two different crops in the same field, as does his wife by wearing garments made of two different kinds of thread (cotton/polyester blend).  He also tends to curse and blaspheme a lot.  Is it really necessary that we go to the trouble of getting the whole town together to stone them? (Lev 24:16).  Couldn’t we just burn them to death at a private family affair like we do with people who sleep with their in-laws? (Lev 20:14)

I know you have studied these things extensively, so I am confident you can help.

Thank you again for reminding us that God’s word is eternal and unchanging.

Our problem in Anguilla is that we jumped from the childish credulity of worshiping Bronze Age barbaric gods of circa 1350 BCE, revitalised by the Gospels and the Koran, into the electronic and digital age without having stopped off at the Enlightenment Period of the seventeenth and eighteenth centuries.

The enlightened among us must confront religious extremists whenever they stick their faces above the parapet.  We must oppose their twisted rantings for the sake of the mental health of our children and grandchildren, if for nothing else. 

The barbaric knifing of Salman Rushdie in New York at the command of the late Afghan Ayatollah is not peculiarly Muslim behaviour.  Christians among us in earlier centuries behaved in the same murderous way.  During the Reformation period in Europe (1500 to 1700 approximately), Catholics murdered millions of Protestants while Protestants murdered millions of Catholics in retaliation.  In the same way, for centuries the Sunni majority militants murdered Shia minority Muslims.

Most of us who were brought up Christian, Muslim, Hindu, Sikh, or Buddhist, have culturally evolved away from such madness.  Only Catholics, Baptists, Pentecostalists, and Suni Muslims are left today to wallow in ancient, murderous, religion-inspired hatreds.

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.

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.

Conclusion

[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: http://www.royalgazette.com/news/article/20170505/landmark-same-sex-ruling