I was wrong. Pastor Philip Gumbs was right.
The European Convention on Human Rights does not oblige the UK government to force us to make gay marriage compulsory in all participating States, and their Dependencies, as I wrote in my article on The Right to Marriage. I was misadvised. And then I misadvised myself.
It is what we were told by the visiting UK team at the conference in November 2019. I did not bother to look it up for myself. I accepted their assurance as gospel. After all, two of the three UK delegates were lawyers. I assumed they knew their own law. How wrong was that?
Nor does the UN Declaration of Human Rights oblige the UK government to force us to recognise gay marriage in our Constitution. I was misadvised. I then misadvised myself on that too by not double checking the law for myself.
Having reviewed my opinion, I filed an appeal. I heard the appeal. I have now decided the appeal in favour of the Appellant. The original opinion was wrong. It is overruled and set aside. I now declare that the United Kingdom is not obliged by either the UN Declaration or the EU Convention to force us to recognise gay marriage in our laws or Constitution.
However, that does not mean that I have changed my opinion on the need to have gay and lesbian marriages recognised in Anguilla. The arguments in favour of extending the civil rights that flow from marriage to homosexuals far outweigh the sectarian and homophobic arguments against.
The right of gays to get married has never in my opinion been better expressed than by Supreme Court Justice Kennedy, who delivered the decision of the Court in the case of Obergefell v Hodges which legalised gay marriage in the USA. What follows is mainly my attempt to precis his learning and his elegant language.
The annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions. Marriage offers unique fulfilment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. This wisdom was echoed centuries later and half a world away by Cicero, who wrote, “The first bond of society is marriage; next, children; and then the family.” There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding at that time that marriage is a union between two persons of the opposite sex.
It is the enduring importance of marriage that underlies the claim of homosexuals to equal treatment under the law of marriage. Far from seeking to devalue marriage, same-sex couples seek it for themselves because of their respect — and need — for its privileges and responsibilities. And the immutable nature of homosexuality dictates that same-sex marriage is their only real path to this profound commitment.
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution — even as confined to opposite-sex relations — has evolved over time.
For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns. But, by the mid-eighteenth century, it came to be understood as a voluntary contract between a man and a woman. As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.
These new insights have strengthened, not weakened, the institution of marriage. Changed understandings of marriage are characteristic of a country where new dimensions of freedom become apparent to new generations.
A first principle upheld by the courts is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why the Court in Loving v Virginia invalidated interracial marriage bans. Indeed, the Court has noted it would be contradictory
“to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.”
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because
“it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.”
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. As the Court held in Loving,
“The freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”.
[We will conclude next week with an examination of the two remaining principles of the US Supreme Court’s jurisprudence on marriage.]
