In a guest post, Elijah Granet reports on an interesting case from a small Commonwealth jurisdiction on sexuality and the Constitution.
On 30 December 2019, the Court of Appeal of Belize (the highest domestic court, below the Caribbean Court of Justice) held per curiam that the Criminal Code, s 53, which prohibited “carnal intercourse against the order of nature” violated the Belize Constitution’s guarantees of free expression (s.12) and of freedom from discrimination on the basis of sex (s.16).
The case—Attorney General v Orozco & Ors Civil [2019] CA Civil Appeal № 32 of 2016—originated with proceedings by Caleb Orozco, a gay Belizean, against s.53 which succeeded at first instance. Given the politically charged subject matter, it attracted the intervention both at first instance and on appeal of esteemed British lawyers, via the Commonwealth Lawyers Association and the International Commission of Jurists; both the former Attorney General of England & Wales, Lord Goldsmith QC (of Debevoise & Plimpton LLP), and the UK’s representative to the Venice Commission, Timothy Otty QC (of Blackstone Chambers), have appeared in support of Mr Orozco’s claim.
The case involved many complex issues which are dealt with at length in the concurring judgments of Campbell & Awich JJA (who are eminent jurists from Jamaica and Uganda, respectively; Belize, like other small jurisdictions, relies in part on foreign appellate judges). However, religion plays a key role in a few parts of the ruling.
First, Awich JA relied on Reyes v R [2002] UKPC 11; [2002] 2 AC 235, [26] per Lord Bingham of Cornhill, to take a purposive approach to the interpretation of the Constitution, bringing its protections into a modern era and maturing with societal norms. This meant that, although consensual same-sex activity might be “repugnant to [C]hristian morality”, it was plainly not in the public interest to restrict the fundamental rights and freedoms guaranteed by the Constitution in deference to this repugnance [123–4].
These changing attitudes towards homosexuality were perhaps attested to by the lack of involvement of religious bodies in the appeal. Though in the trial at first instance in 2011 the Belizean Anglican, Roman Catholic and Evangelical Churches had appeared as interested parties on the side of the Government, they notably declined to involve themselves in the appeal. The Catholic Church had initially attempted to file a separate appeal but subsequently withdrew its notice [170].
Indeed, Awich JA used, inter alia on the evidence from religious leaders, to conclude that homosexuality was a protected expression under s.12 of the Constitution. The Anglican prelate in Belize, Bishop Philip Wright, had submitted evidence that “human sexuality is to be seen as a gift from God to enable human beings to express their affection, love and companionship for each other within marriage” [emphasis added]. Awich JA further noted that as the Anglican and Catholic submissions at first instance had emphasised fundamental “human dignity” and spoke of “pastoral and spiritual support” for homosexuals, those views were therefore not compatible with a criminal penalty for purportedly immoral sexual acts [158–9].
In the Caribbean context, this is a landmark ruling, albeit in the context of a rather small jurisdiction of 375,000 people. It remains to be seen if other Commonwealth Caribbean jurisdictions with laws prohibiting consensual same-sex activity follow the reasoning laid out here. Yet if, as in this case, both religious leaders and LGBT+ rights activists are apparently in agreement that sexuality is a fundamental part of freedom of expression, this ruling could herald a raft of similar judgments.
Elijah Z Granet
Cite this article as: Elijah Z Granet, “Criminalisation of same-sex relations in Belize unconstitutional: Orozco“, 8 January 2020, https://www.lawandreligionuk.com/2020/01/08/criminalisation-of-same-sex-relations-in-belize-unconstitutional-orozco/.