The right for gay people to marry is a fundamental human right, recognised 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.
This right is embedded in the Universal Declaration of Human Rights. This was drafted by representatives of different legal and cultural backgrounds from all regions of the world. Among the women and men who drafted the Declaration, there were Christians and Jews, Hindus and Muslims, Buddhists, and Taoists. It was proclaimed by the United Nations General Assembly in Paris on 10 December 1948. It set out, for the first time, a list of fundamental human rights to be universally protected. On the UK accepting the Declaration, it was made binding on Anguilla, and any Anguillian law that contravenes it is illegal. The UK Government is prohibited from enacting a new Constitution for Anguilla that is in breach of the Declaration.
Article 16 provides among other things that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution. It is universally accepted that this right is not limited to marriage between a man and a woman but extends to same-sex marriage.
The 1950 European Convention on Human Rights extended the rights that are to be recognised beyond those adopted by the United Nations. On Britain acceding to the European Union and accepting the Convention as part of its own law, the Convention was extended to Anguilla. Any Anguillian law contravening the Convention is illegal. The UK government is prohibited from making any new Constitution for Anguilla that contravenes the Convention.
It provides at Article 12 that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.” It is universally accepted that this right extends to gay marriage.
Article 14 buttresses and supports the right of gays and lesbians by prohibiting discrimination. It provides that “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The right of homosexuals and others to have their marriage recognised is further supported by the Article 8 right to respect for private and family life. This provides, among other things, that “Everyone has the right to respect for his private and family life, his home and his correspondence.”
Paragraph 2 goes on to explain that “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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 the gay rights movement, church leaders have furthered discrimination and vengeance upon the gay community. In addition, by turning away from the gay and lesbian community, churches have added to the alienation felt by same sex couples.
We can obtain some guidance in 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. It held that the Constitution requires a State to license a marriage between two people of the same sex. In so holding, the Court recognised marriage as being an institution of both continuity and change. Recent shifts in public attitudes respecting gay individuals necessarily informed the Court’s conceptualisation of the right to marry.
The Court recognised 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 conceptualisation 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, concluding that a denial of marital recognition to same-sex couples ultimately demeaned and stigmatised 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 Anguilla ought to embrace the opportunity of the coming new Constitution and to ensure that it includes language that does not stop gay and lesbian Anguillians from 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 hell than to a homophobic heaven. All freedom-loving people everywhere would happily join Archbishop Tutu wherever he is going to end up.
