Same-sex marriage in the Cayman Islands

Same-sex marriage is not currently recognised in the Cayman Islands. The island's statutory law defines marriage as between one man and one woman. A lawsuit before the Grand Court successfully challenged this ban in March 2019, however, the Court of Appeal overturned the ruling in November 2019.\

The Governor has announced plans to enact a Domestic Partnership Bill at the end of a 21-day consultation period starting 10 August 2020.

History

Homosexuality laws in Central America and the Caribbean Islands.

  Same-sex marriage

  Other type of partnership

  Unregistered cohabitation

  Country subject to IACHR ruling

  No recognition of same-sex couples

  Constitution limits marriage to opposite-sex couples

  Same-sex sexual activity illegal but law not enforced

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In 2006, the Cayman "People for Referendum" activist group began protesting against LGBT rights and same-sex marriage, after the Dutch High Court ruled Aruba had to recognise same-sex marriages registered in the Netherlands. The "People for Referendum" criticised the judgement, claiming that the British Foreign and Commonwealth Office (FCO) could force legal recognition of same-sex marriages in the Cayman Islands.[1]

The new Constitution, approved in June 2009, notes that the Government of the Cayman Islands "shall respect" the right of every unmarried man and woman of marriageable age as defined by law freely to marry a person of the opposite sex and to found a family. The Constitution does not, however, explicitly define the term "marriage" nor does it explicitly prohibit same-sex marriage.[2]

In August 2015, in light of Oliari and Others v Italy, a case in which the European Court of Human Rights (ECHR) ruled that it is discriminatory to provide no recognition to same-sex couples, the Legislative Assembly unanimously (save for four abstentions) reaffirmed its same-sex marriage ban. The ECHR has jurisprudence over the Cayman Islands.[3]

In 2015, Premier Alden McLaughlin indicated that the government was examining immigration law and regulations to find a way to allow same-sex couples who have legally married in other jurisdictions the right to have their spouse recognised as a dependant.[4] In July 2016, the island's Immigration Appeals Tribunal ruled in favour of a gay man who wished to be added to his spouse's work permit as a dependent. The two men's application was made 14 months prior and was rejected by the authorities; they subsequently filed a lawsuit. A July 2016 ruling by the European Court of Human Rights had significant implications for the lawsuit. The ECHR found that refusal to grant a residence permit to a same-sex couple in Italy on family grounds was unjustified discrimination.[4][5][6] Despite this ruling, immigration authorities later refused to grant dependency rights to two other dual Caymanian same-sex couples. The two couples were forced to leave the Cayman Islands, despite one partner being Caymanian.[7] In December 2017, Colours Cayman, an LGBT group, raised these concerns with the European Union in hopes it would address this inequality.

On 6 October 2016, the Legislative Assembly of the Cayman Islands voted against a proposal to hold a referendum on whether the territory should legalise same-sex marriage. The proposal was voted down 9-8. It was filed by MLA Anthony Eden after the Immigration Appeals Tribunal ruled to allow the same-sex partner of a work permit holder to remain in the Cayman Islands as a dependent on his or her partner's permit. Premier Alden McLaughlin expressed his opposition to the referendum proposal.[8] In the weeks prior to the 2017 elections, legal expert Dr Leo Raznovich invited same-sex couples on the island to challenge the implicit ban on same-sex marriage in Cayman law, arguing the lack of express prohibition in the Constitution and local legislation to same-sex marriage triggers sections 24 and 25 of the Constitution.[9][2] Shortly after taking office, Governor Anwar Choudhury announced his support for civil unions.[10]

Lawsuit

In April 2018, a dual Caymanian-British same-sex couple, Chantelle Day and Vickie Bodden, revealed their intention to file a lawsuit challenging the Cayman Islands' statutory same-sex marriage ban, after their application to marry was rejected by the island's Civil Registry.[11] The couple formally filed suit with the Grand Court on 20 June 2018, arguing that the section of Cayman's Marriage Law, which defines marriage as between "one man and one woman", is incompatible with various rights guaranteed under the Constitution.[12][13][12]

Oral arguments in the case were heard by the court, specifically Chief Justice Anthony Smellie, in February 2019.[14][15] During the arguments, government lawyers admitted that there was a persuasive case, under the Constitution, for same-sex couples to have a right to a civil union or domestic partnership scheme, though they argued that the creation of such a scheme should be left to legislators.[16] On 29 March 2019, the court handed down its ruling in favour of the plaintiffs, finding that the ban on same-sex marriage was a clear violation of freedoms guaranteed in the Cayman Constitution, including the right to a private and family life.[17] Justice Smellie used his judicial powers to rewrite the island's Marriage Law, ordering that the clause specifying marriage be reserved for heterosexual couples be altered to state, "'Marriage' means the union between two people as one another's spouses."[18]

The ruling went into effect immediately and did not require ratification by the Legislative Assembly or the Governor.[18] On 3 April 2019, Premier Alden McLaughlin announced that the PPM Government would appeal the decision and seek a stay of the judgement.[19][20] The ruling was met with dismay by the Assembly, which unanimously passed a motion expressing disagreement with the ruling and commending the decision to appeal. Several Assembly members vociferously objected to the ruling, with Representative Anthony Eden decrying "what is the difference between the Cayman Islands and Sodom and Gomorrah?" and Education Minister Juliana O'Connor-Connolly inviting members of the public to violently object to and disrupt the petitioners' marriage, saying "attend the marriage...[and] make sure you object" in person.[21]

The Court of Appeal granted the request to stay the ruling on 10 April 2019, thereby preventing the judgement from taking effect.[22][23] The court heard the case on 28-30 August 2019,[24][25][26] and on 7 November 2019 it overturned the Chief Justice's previous judgment. It called on the UK to step in and ensure that civil partnerships or a legal equivalent are implemented if the Cayman Islands Government fails to do so.[27][28] In January 2020, lawyers for the petitioning couple announced they had begun the process of filing an appeal with the UK-based Privy Council.[29]

A domestic partnership bill was introduced to the Legislative Assembly on 26 June 2020. The legislation would allow same-sex and opposite-sex couples to register a domestic partnership, and enjoy several of the rights and benefits of marriage. Governor Martyn Roper called it "a welcome step on the path to ensuring that the rights of everyone in the territory are upheld and that Cayman law is compliant with the recent ruling of the Cayman Islands Court of Appeal".[30][31] The bill was rejected by a 8-9 vote on 29 July. MLA Kenneth Bryan who had previously expressed support for the bill changed course and voted against it, causing it to fail.[32] Premier McLaughlin repeatedly indicated during the bill's debate that failure to pass it would very likely result in the Government of the United Kingdom stepping in and imposing domestic partnerships or same-sex marriage.[33]

29 July 2020 vote in the Legislative Assembly of the Cayman Islands[33]

Party	Votes for	Votes against	Abstained or Absent (Did not vote)
People's Progressive Movement	5 Alden McLaughlin David Wight Joey Hew Moses Kirkconnell Roy McTaggart	1 Julianna O'Connor-Connolly	1 Barbara Conolly
Cayman Democratic Party	-	2 Bernie Bush Eugene Banks	1 McKeeva Bush
Independents	3 Austin Harris Ezzard Miller Tara Rivers	6 Alva Suckoo Anthony Eden Arden McLean Chris Saunders Dwayne Seymour Kenneth Bryan	-
Total	8	9	2

Reacting to the partnership bill's defeat, the Cayman News Service newspaper wrote that "it is extremely likely that Governor Martyn Roper or the Foreign and Commonwealth Office will intervene directly and either impose this legislation or even re-impose the chief justice's original ruling legalising same-sex marriage."[32] On 30 July, Shadow Minister for Foreign and Commonwealth Affairs Stephen Doughty wrote to UK Overseas Territories Minister Baroness Sugg urging Her Majesty's Government to step in.[34] On 10 August, Governor Martyn Roper published a new version of the Domestic Partnership Bill, along with consequential amendments to eleven other laws, that he would enact into law using his reverse powers under the constitution following a 21-day consultation period.[35]

See also

• LGBT rights in the Cayman Islands
• Recognition of same-sex unions in the Americas
• Same-sex marriage in the United Kingdom
• Recognition of same-sex unions in the British Overseas Territories
• Same-sex union court cases

References

1. Gay Life in Cayman Islands
2. "The Cayman Islands Constitution Order 2009, Section 14, 'Marriage'" (PDF). Cayman Constitution. Retrieved 20 May 2016.
3. Cayman Islands reaffirms ban on gay marriage in wake of European court verdict (Gay Star News)
4. European Court ruling paves way for gay marriage case in the Cayman Islands
5. Cayman Islands immigration tribunal finds in gay couple's favour
6. Gay couple wins work permit appeal
7. Activists raise more concerns over discrimination
8. UPDATED: Bid for referendum on gay marriage fails Cayman Compass, 6 October 2016
9. Same-sex couples urged to test Cayman marriage law
10. Governor gives views on civil unions, Cayman Compass, April 3, 2018
11. "Women plan legal action after marriage rejection". Cayman News Service. 18 April 2018.
12. "Couple files legal challenge to gay marriage ban". Cayman Compass. 20 June 2018.
13. "Court gives green light to same-sex marriage case". Cayman Compass. 25 July 2018.
14. "Gay marriage trial set for early next year". Grand Cayman, Cayman Islands: Cayman News Service. 5 October 2018. Archived from the original on 6 October 2018. Retrieved 6 October 2018.
15. "Arguments conclude in landmark same-sex marriage case". cayman27.ky. 12 February 2019.
16. James Whittaker (11 February 2019). "Government lawyer acknowledges case for same-sex civil unions". Cayman Compass.
17. Whittaker, James. "BREAKING: Chief Justice rules same-sex marriage is legal". Cayman Compass. Retrieved 29 March 2019.
18. "UPDATED: Same-sex marriage legalised in Cayman". Cayman Compass. 29 March 2019.
19. "Government to appeal same-sex marriage ruling". Cayman Compass. 3 April 2019.
20. "Cayman Islands Government Appealing Same-Sex Marriage Ruling". Caribbean360. 3 April 2019.
21. "Same-sex marriage: What your representative said on the issue". Cayman Compass. 7 April 2019.
22. "Appeal court grants stay in gay marriage case". Cayman News Service. 10 April 2019. Retrieved 10 April 2019.
23. Ragoonath, Reshma (10 April 2019). "BREAKING NEWS: Appeal Court blocks same-sex wedding, Gov't stay granted". Cayman27. Retrieved 10 April 2019.
24. "Round 2 in same-sex marriage fight". Cayman Compass. 19 August 2019.
25. "Appeal to stop gay marriage opens in Cayman Islands". Reuters. 28 August 2019.
26. "Cayman Islands appeal court grants stay in same-sex marriage case". Caribbean News Now. 15 April 2019.
27. "Same-sex marriage ruling overturned". Cayman Compass. 7 November 2019. Retrieved 15 November 2019.
28. "Same-sex marriage: Couple considers Privy Council appeal". Cayman Compass. 13 November 2019. Retrieved 15 November 2019.
29. "Same-sex marriage fight to go to Privy Council". Cayman Compass. 22 January 2020.
30. Young, Kayla (26 June 2020). "Same-sex union bill submitted to legislature". Cayman Compass. Retrieved 27 June 2020.
31. "Domestic Partnership Bill, 2020" (PDF).
32. "Domestic Partnership Bill heading for defeat". Cayman News Service. 29 July 2020.
33. "Domestic Partnership Bill defeated by one vote". Cayman Compass. 29 July 2020.
34. "UK shadow minister weighs in on same-sex bill". Cayman Compass. 30 July 2020.
35. Ragoonath, Reshma (10 August 2020). "Governor moves ahead with amended Domestic Partnership Bill". Cayman Compass. Retrieved 14 August 2020.