March 5, 2009 — Changing what was characterized as a clerical error in a recorded vote from Wednesday, the 5th V.I. Constitutional Convention Thursday reversed the outcome of a Wednesday vote and put a ban on gay marriage into the draft constitution.
"Yesterday when I came in a vote was in progress and I noticed this morning it was noted I was absent," said Gerard "Luz" James, the convention president. "I came in to make my vote yes, but it was not recorded, it was recorded as absent.
The passage bans gay marriage by declaring the definition of "marriage as between man and woman."
The language is left without the words "a" or "one" because of an amendment offered by delegate Adelbert Bryan, specifically to keep the ban focused on gays and prevent it from extending to polygamous marriages.
The recorded vote on the passage Wednesday showed the motion failing with 12 yea and 12 nay votes. Voting yea were delegates Bryan, Douglas Brady, Mario Francis, Stedmann Hodge Jr., Frank Jackson, Clement Magras, Wilma Marsh Monsanto, Mary Moorhead, Kendall Petersen, Lawrence Sewer, Elsie Thomas Trotman and Alecia Wells. Voting nay were delegates Craig Barshinger, Rena Brodhurst, Douglas Capdeville, Gerard Emanuel, Arnold Golden, Violet Anne Golden, Lois Hassell-Habtes, Myron Jackson, Thomas Moore, Eugene "Doc" Petersen, Claire Roker and Robert Schuster.
James, delegates Richard Schrader, Michael Thurland, Charles W. Turnbull, Arturo Watlington Jr., and Lisa Williams were marked absent. Changing James' recorded vote from "absent" to "yea" changed the outcome from not banning gay marriage to banning it.
Superintendent of Elections John Abramson, who is advising the convention on parliamentary procedure, said afterwards that several individuals saw James at the time of the vote and two said they heard James vote yes, and under Robert's Rules of Parliamentary Procedure, in circumstances where there is clearly a clerical error, it is proper to change the outcome of a vote. The motion could be reconsidered, but only if at least one of the 13 delegates who voted for the ban agrees to reconsider, he said.
Wednesday, the convention took the definitions of an ancestral Virgin Islander, native Virgin Islander and Virgin Islands resident out of the preamble and re-inserted them into the body of the document, changing the definition slightly so that an ancestral Virgin Islander, a person whose family goes back to before 1927 when U.S. citizenship was first conferred on the black, native Virgin Islands population, would be a "Native Virgin Islander," while a person native to the Virgin Islands, in the dictionary sense of the word would be defined as a "Virgin Islander." The remaining majority of the population of the territory are now defined in the draft constitution as "Virgin Islands residents."
(See: "Constitutional Convention Shifts 'Virgin Islander' Definitions.")
Thursday, two Virgin Islands residents testified, one for and one against the notion of defining "Native Virgin Islanders" and giving them unique rights.
"It appears that the primary motivation for the creation of this controversial term is to get some type of special benefit or privilege for a group of people," said Jerris T. Browne of a group called V.I. Restore Hope. "If their objective was to be achieved, it would definitely be a pivotal setback for the social unification of the various ethnic groups in our community."
Later, Lawrence "Scott" Liburd, a native Nevisian who has lived on St. Croix for more than 20 years spoke about why he felt he should not have the same rights as those born in the territory.
Liburd used to train workers in Puerto Rico for Crowley Caribbean Services, he said.
"One of the young fellows I trained asked me, 'Scott, how come you taught me, and I'm your foreman," Liburd said. "I say, I don't have a problem with that. … Puerto Rico is for Puerto Ricans, and I don't have a problem with that."
At another point, Moorhead moved to have the convention put discussion of whether or not native Virgin Islanders should have a constitutionally enshrined right to pay the minimum property tax rate on their personal residence. While the motion was to discuss the topic at a later date, it engendered a heated discussion along predictable lines immediately.
Bryan compared constitutionally enshrined ethnic tax privileges to the territory's Economic Development Authority tax benefits, arguing if rich, white outsiders are getting tax breaks, so should Native Virgin Islanders. Under Virgin Islands and federal law, the EDA offers tax breaks to encourage new, outside, investment in the territory. In contrast to the proposed constitutional tax advantage, the EDA program does not base its benefits on the ethnicity of recipients, though the recipients are predominantly wealthy and white.
Other delegates saw the issue differently.
"We are now doing what many of us always feared may be done," Jackson said. "That is giving certain rights and privileges to one category of people and not another. I object, we should be treating all the people equally and not giving special rights and privileges to any specific group."
Brady argued the EDC benefits mentioned by Bryan were not constitutional but set up in territorial law, and by the same token, any special tax benefits should be placed in the law, rather than the constitution.
The convention voted to formally consider the matter of property tax benefits at the next plenary session. Voting yea were: Bryan, Capdeville, Emanuel, Francis, Arnold Golden, Habtes, Hodge, James, Monsanto, Moorhead, Kendall Petersen, Roker, Sewer, Trotman, Wells and Williams.
Voting no were: Brady, Violet Anne Golden, Jackson, Moore and Schrader. Absent were: Brodhurst, Myron Jackson, Magras, Eugene Petersen, Schuster, Thurland and Watlington. Barshinger abstained.
The U.S. Congress passed a law in 1976 to allow the people of the Virgin Islands and Guam to adopt territorial constitutions. Any constitution has to be consistent with federal law and with the U.S. constitution. The government must be republican in form, with executive, legislative and judicial branches, and it must have a bill of rights. But there are few other restrictions.
There have been four previous constitutional conventions, but no territorial constitution yet. The most recent convention was in 1980. For a detailed history of previous conventions and extensive background information on the subject, see V,I, Constitutional Conventions: Background.
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