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Jamaica: Evicted, gay man aims to overturn buggery law

Jamaica: Evicted, gay man aims to overturn buggery law

Javed Jagahi
Javed Jagahi

Last year, Javed Jaghai, a young gay Jamaican, was evicted from his home by his landlady when she discovered his sexual orientation.  The landlady alleged that Javed’s homosexuality meant that he would be engaging in an illegal activity on the premises.  While homosexuality is not illegal in Jamaica, the country’s1864 British colonially imposed anti-buggery law criminalizes all acts of intimacy between men, even if they take place behind closed doors.

Javed has therefore filed the first-ever legal challenge to Jamaica’s anti-sodomy law, which will have the initial hearing on June 25.  Javed is seeking a court order that the law violates his rights to privacy and equality, which were significantly enhanced under the country’s 2011 Charter of Fundamental Rights and Freedoms.

The hearing on June 25 was expected to be purely procedural: to settle such matters as the trial date and what forms of evidence would be admitted.  However, the religious group Jamaica Coalition for a Healthy Society (JCHS) has since applied to be joined as interested parties in the claim, on the ground that, inter alia, decriminalization of sodomy would adversely affect the freedom of religion of Jamaican Christians who would no longer be able condemn homosexuality as a sin.  jchs-logo-BIGGERThis argument is, of course, patently silly.  Christians can and do preach that many acts, such as adultery and pre-marital sex, are immoral, even though those activities have been legal for decades.  Another expressed concern of the JCHS is that churches will be forced to perform same-sex marriages.  Not only is this highly speculative and irrelevant to this claim, but the fact is that Anglican and Catholic churches do not perform marriages for divorced persons as that runs counter to their faith traditions.  Similarly, in jurisdictions that have recognized marriage equality, churches are allowed to decide if/when they wish to celebrate same-sex unions.

The full reasons the JCHS provides for opposing the decriminalization of sodomy are listed below:

1)    Homosexual activities would be facilitated and encouraged;
2)    It will not be long before marriages between two persons of the same sex will be facilitated, encouraged and adopted;
3)    The public promotion of the homosexual lifestyle will be permitted;
4)    The right to freedom of expression, to freedom of thought, conscience, and belief will be adversely affected;
5)    The right to seek, receive distribute or disseminate information, opinions, and ideas through any media will be adversely affected;
6)    The right to equality before the law will be adversely affected;
7)    The right to enjoy a healthy environment will be adversely affected;
8)    The right to respect for and protection of private and family life, and privacy of the home, will be adversely affected;
9)    The protection of privacy of communication will be adversely affected;
10)    The right to manifest and propagate religion in worship, teaching, practice, and observance will be adversely affected;
11)    The right to freedom from discrimination on the ground of religion will be adversely affected.

We fully intend to resist the application of the JCHS to be joined to this suit, as we find their arguments spurious and a waste of the court’s time.  We also feel that the Attorney General’s Chambers can and should be able to adequately represent their interest.  After all, the Solicitor General, who heads the AG’s Chambers, is a high-ranking member of the Lawyers Christian Fellowship, one of the groups that founded the JCHS.

It is also clear that the JCHS does not represent the views of many Christians when it comes to the issue of decriminalization of sodomy.  They certainly don’t represent the views of the island’s most established churches: the Anglican and Roman Catholic.

The Rt. Rev. Dr. Howard Gregory, Anglican bishop of Jamaica. (Photo courtesy of the Jamaica Gleaner)
The Rt. Rev. Dr. Howard Gregory, Anglican bishop of Jamaica. (Photo courtesy of the Jamaica Gleaner)

Appearing on the popular Jamaican radio programme “Beyond the Headlines” on April 26, 2013, the Anglican Lord Bishop of Jamaica and the Cayman Islands, the. Rt. Rev. Dr. Howard Gregory, stated that the country’s 1864 British colonially imposed anti-buggery law should be repealed.

This statement is in line with one made by the spiritual head of the Anglican Church, the Archbishop of Canterbury, the Most Reverend Justin Welby during the June 3 same-sex marriage debate in the UK House of Lords.  While maintaining the church’s opposition to marriage equality, Archbishop Welby said:

“…[I]t is also absolutely true that the church has often not served the LGBT communities in the way it should. I express my sadness and sorrow for that considerable failure. There have been notable exceptions, such as my predecessor, the late Archbishop Ramsey, who vigorously supported decriminalisation in the 1960s. It is also necessary to express, as has been done already, total rejection of homophobic language, which is wrong and, more than that, sickening.”

The recently concluded national census indicated that only about 2.7 percent of Jamaica’s population identify as Anglicans.  However, on March 28, 2012, the Jamaica Observer reported that the Anglican Church is one of the island’s most powerful entities. The church founded several educational institutions, which have developed into some of Jamaica’s foremost centres of learning.  The Anglican Church also has major community outreach programmes, which have, over the years, benefited thousands of Jamaicans.  Several members of the country’s elite also belong to the church.  The church’s influence on shaping national policy therefore far outstrips the size of its population.

The support for decriminalization of private consensual same-gender intimacy is repeated by the Roman Catholic Church:

Since at least 2008, the Vatican has gone on record as calling for the elimination of anti-buggery laws.  At the 63rd session of the General Assembly of the United Nations on the Declaration of Human Rights, sexual orientation and gender identity, the Holy See stated its intention “to condemn all forms of violence against homosexual persons, as well as to urge all States to take necessary measures to put an end to all criminal penalties against them.”

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In March of 2012, the head of the Roman Catholic Church in Antigua and Barbuda, Jamaican-born Bishop Kenneth Richards, also supported decriminalization of buggery.  Bishop Richards said in an interview to the Antigua Observer that decriminalizing buggery would also help to reduce the discrimination against individuals perceived to be homosexual.

Most recently, the head of the Roman Catholic Church in Dominica,
Bishop Gabriel Malzaire, has called for the elimination of criminal penalties for homosexuality and an end to “all forms of violence” against LGBT people.
Bishop Malzaire’s position, which he stated in Dominica News Online, is consistent with the Catholic Church’s overall position.  He said:

Bishop Gabriel Malzaire
Bishop Gabriel Malzaire

I wish to make it clear that the Catholic Church in Dominica adheres to the call of the Holy See in its statement to the 63rd session of the General Assembly of the United Nations on the Declaration of Human Rights, sexual orientation and gender identity, “to condemn all forms of violence against homosexual persons as well as to urge all States to take necessary measures to put an end to all criminal penalties against them. …”

The Catholic Church maintains that free sexual acts between adult persons must not be treated as crimes to be punished by civil authorities.

In light of the foregoing, and mindful of the strict vow of obedience that Catholic churches around the world have to the Holy See, I would expect that the Catholic Church in Jamaica similarly supports a repeal of Jamaica’s anti-buggery law.  Two weeks ago we wrote to the Archbishop of Kingston who heads the most powerful Roman Catholic diocese in Jamaica, to get clarification on the Jamaican Roman Catholic church’s views on decriminalization.  The Archbishop advised that he will provide a response.

One reason for maintaining a law that infringes on the rights of others is to protect public morality. This is certainly not the case with the anti-buggery law.  It is certainly clear that getting rid of the provisions in the law that criminalize private acts of intimacy between consenting adults, would do no violence to the sense of morality of well-thinking Jamaican Christians.  Therefore, a few fanatical fundamentalists as represented by the JCHS should not be allowed to hold the country to ransom in their desperate desire to discriminate.  We fully expect the court will agree with us on this point.

View Comment (1)
  • I believe that there are an awful lot of old colonial laws that need repealing. Someone needs to take the time to sort through all those laws enacted in slavery times which are patently irrelevant in the 21st century.e.g.that idiotic swearing in public law that was used to excuse a policemans murderous intent last September . I guess an awful lot of religious bigotry will finally be eradicated
    !time now for Jamaica to make it’s own laws. Out of many One People.People of diverse ethnic origins and sexualities
    Be braveJamaica! X

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