GEORGE TOWN, Cayman Islands (CNS) – Premier Alden McLaughlin welcomed the decision made by the Cayman Islands Court of Appeal on Thursday allowing his government’s appeal against the chief justice’s ruling earlier this year, which legalised gay marriage. But despite the unequivocal direction from the panel of judges who heard the appeal that the government must introduce same-sex unions that are legally equivalent to marriage, the premier has acknowledged the declaration but did not commit to it. Nevertheless, the governor has said it will be acted upon quickly.
In a short statement from his office following the appeal court decision, the premier said, “While I do appreciate the ruling, I am mindful that it comes with a declaration that requires immediate action from the government. The Court of Appeal declared that ‘Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage’.”
But McLaughlin did not indicate how his government proposes to deal with the issue, given that a significant number of the Unity government members not only oppose marriage equality but do not support the rights of LGBTQ people to access any kind of legal union. Instead, the premier stated, “The government will carefully consider the full judgment to determine how best to proceed.”
But the appeal court made it clear that the government must proceed with a framework that would allow same-sex unions immediately. In the ruling, the appeal court concluded that it would be wholly unacceptable for the government to ignore the order, as it has known for some time that it is in violation of its own constitution and in breach of the European Convention on Human Rights.
The judges said it was hard not to conclude that the legislative assembly was doing all it could to avoid its legal obligations and they supported the chief justice in his concerns that Day and Bodden and their child were suffering as a result.
Directing the government to act immediately on their declaration, as it still remains in breach of the law, they pointed out that the courts are an arm of the government, and both the executive and the legislature must obey the law and respect court decisions. The judges said that if the legislative assembly does not address the issue immediately, the UK government should “recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end”.
CNS has contacted all 19 representatives and asked them if they now intend to support the introduction of same-sex legal civil unions or if they would prefer the legislation to be imposed from London.
Opposition members Ezzard Miller (NS) and Kenneth Bryan (GTC) have both previously made it clear that they believe the government should introduce the necessary legislation and not wait until it is imposed on them by the UK.
Miller said the judgment did not surprise him and he urged the Unity government to act and present a bill to the legislative assembly for debate and passage into law, providing civil unions for same-sex couples and for churches to back it.
“The premier has my full support for such legislation and I encourage him to act before the UK intervenes and passes legislation through Orders in Council that allows marriages of same-sex persons. I call on all the religious organisations in the Cayman Islands to lean on their Christian tolerance and compassion to support legislation allowing civil unions between same-sex persons.”
All other members have failed to comment publicly to date or have made it clear they are opposed to both.
CNS also contacted the governor’s office, given his role now in ensuring that the court’s direction is followed. The office released a short statement from governor Martyn Roper which gave a much clearer commitment to addressing this breach of the law by the government.
“I recognise that this issue generates strong opinions, however, we should treat everyone equally and with respect,” Roper said. “I have carefully noted the decision and the comments that have been made and I will work closely with the Cayman Islands government to ensure that the declaration that the Court of Appeal has made is acted upon as quickly as possible.”
Meanwhile, the Foreign and Commonwealth Office called on the government here to act and provide equal rights for the LGBTQ community. “We believe that all love is equal, which is why the UK government changed our legislation to allow same-sex marriage. We hope that the Cayman Islands legislative assembly will act swiftly and take a decisive lead on this issue to ensure same-sex couples are granted equal rights,” an FCO spokesperson said.
In the ruling, it is clear that the appeal court sympathised with the chief justice’s position and the reasons for his decision because the government’s inaction had lead to the suffering of the family at the heart of this case.
But the appeal succeeded in relation to the government’s interpretation of section 14 of the Bill of Rights, which protects the right to marry only for opposite-sex couples. This addresses one of the government’s grounds for appeal, as the premier said it had concerns that the chief justice’s decision could have also legalised polygamous marriage. But the government’s other major complaint, that the had overstepped his powers by legislating from the bench, was not addressed by the appeal court in the ruling, as they allowed the appeal on different grounds.
McLaughlin [had] said the chief justice had brought into question the appropriate separation of powers under the Constitution and whether or not the court had exceeded its mandate, an issue that remains unanswered.