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Cayman Gov't to appeal same-sex marriage ruling

Thursday, April 04, 2019

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GEORGE TOWN, Cayman Islands (CMC) — The Cayman Islands Government yesterday said it would appeal a ruling last week, by Chief Justice Anthony Smellie, that the definition of marriage as between a man and a woman was unconstitutional and violated multiple rights.

“Mr Speaker, let me say here that, in appealing, the Government is cognisant that there is no guarantee or certainty as to how the Court of Appeal will rule. However, we believe it is critical that the country has the benefit of clarification on these very important constitutional issues,” Premier Alden McLaughlin told legislators.

“I wish to note that I am painfully aware that the issue of same-sex marriage is an emotive one in our islands. I am also very conscious that this is an issue with real people, who have real lives, and there are emotions and feelings involved and that this is not merely some textbook case.

“I, and the Government, have no intention of causing any harm or hurt to the petitioners, but we must ensure that in seeking what they deem protections and rights under the law, that a door is not opened that may impinge on other protections and rights,” he said.

Attorney Ben Tonner, who represented the couple — Chantelle Day and Vickie Bodden who had last year applied to get married in the islands but were turned down — said that his clients were “delighted” that their relationship has been recognised at long last.

In his ruling, the chief justice ordered that section 2 of the Marriage Law be changed to state that “marriage” means “the union between two people as one another's spouses.

“This court is bound not to allow the violation of the petitioners' rights to continue without redress. The constitution, in its mandatory requirement that the law be brought into conformity, must prevail. The petitioners and their daughter are entitled to the indignities to which they have been subjected being put to an immediate end by the court,” the chief justice added.

Governor of this British Overseas Territory, Martyn Roper, in a statement earlier this week, said he recognised there are strongly held and differing views across the islands on the legal ruling on same-sex marriage.

“Yet it is important that all our citizens can play an equal and active part in society, free from discrimination as set out in our constitution. This judgement provides equal rights for everyone, a point which I and former governors have previously emphasised.

“At this time I believe it is important that all of us continue to show tolerance and respect to others, particularly when we hold different views. I also believe that our highly respected, and independent, judicial system in the Cayman Islands continues to underpin our success. It protects our prosperity, constitution, good governance, and our security,” Roper said.

In his lengthy statement to the Parliament, Premier McLaughlin reiterated earlier statements that he had no doubt that the feelings of the majority of Caymanians are that marriage should retain its traditional and religious definition and meaning, the union of one man and one woman.

“I recognise that many of the younger generation of Caymanians have differing views on this issue and it is quite likely that in years to come the majority view of Caymanians may change. But such a majority is not evident to any of us here today.

“However, I equally want to make it clear that no matter what my own religious beliefs, or indeed the beliefs of the other members of my government or of this Parliament, as your premier, I also have an obligation under the law and the Constitution, and indeed given my religious upbringing, under the teachings of Christ, to ensure that all people, but especially any minority group, regardless of differences, are treated fairly and with respect.”

McLaughlin said he was imploring every one, including legislators, to discuss their views freely, but respectfully.

“At all times we should keep in mind that those in our community who are in same sex relationships, or have family members whom they love in such relationships, are like us – made of flesh and blood with feelings and emotions and are not merely stone objects.”

Premier McLaughlin said that the Cabinet had on Tuesday instructed the Attorney General Samuel Bulgin to pursue an appeal against the judgement.

He said the attorney general was also instructed to seek a stay of execution of the judgement pending the outcome of the appeal.

McLaughlin said following the court ruling last Friday, he had received many telephone calls, Whatsapp and text messages, with people expressing differing views on the ruling.

He said there were some people who felt the “outcome was right” and “there were many more that sent messages stating that they feel wronged by the decision and made clear, in no uncertain terms, their view that marriage should remain the exclusive domain of heterosexual couples.

“And there were also those who, regardless of how they feel about the concept of same-sex marriage, expressed shock and disbelief that the court could have made such a fundamental public policy change in a matter as important as the institution of marriage without reference to this Legislative Assembly.”

Premier McLaughlin said the Government was also “peppered and still are being peppered with requests from the press asking for a statement”, but he wanted to make it clear that the ruling required careful consideration by Government.

“And so the Government has taken the time to consider in its Caucus and the Cabinet to take legal advice and to discuss this most important matter and its implications,” he said, adding, “I want to add here that I and my entire Government have great respect for the honourable chief justice and indeed the independence of the judiciary.

“But even the best judges get it wrong from time to time. Hard cases make bad law. None of us who are human are infallible,” Premier McLaughlin said, adding that the Government believes that in his determination to right what he has described as injustice and indignities suffered by the petitioners in the same-sex partnership case, the chief justice may have exceeded the scope of the powers conferred on the court by the Constitution and in doing so, some have argued, assumed the role of this Legislative Assembly in deciding on what should be public policy and then legislating for it.

He said that the Government is cognisant of the provisions of Section 5 (1) of the Constitution and the mandatory requirement imposed by that section that all existing laws “shall be read and construed with such modifications, adaptations, qualifications, and exceptions as may be necessary to bring them into conformity with the Constitution”.

“But we believe that introducing the entirely new concept of same-sex marriage into the existing Marriage Law goes way beyond any reasonable interpretation of modification or adaptation. This, we believe, might be inconsistent with the separation of powers by trespassing on the constitutional remit of this Legislative Assembly.”

He said during the trial, the Government had argued that Section 14 is the constitutional provision that specifically provides for the right to marry.

“Mr Speaker, the current constitution is a comprehensive negotiated document, the result of eight years of extensive consultation across the various demographics of the Cayman community, often bitter political differences and very difficult negotiations with the Foreign and Commonwealth Office.

“It was then approved by the democratic process of a referendum. It is not something that was dreamed up by the Cayman Government. The document strove to represent the strong feelings of the Caymanian community, in particular as regards the institution of marriage.

“Given the highly controversial and landmark ruling by the Hon Chief Justice on March 29th, if left unchallenged, the implications for the Cayman Islands Constitution are significant and potentially far-reaching, and go well beyond the rights of same-sex couples.”

Premier McLaughlin said while a challenge to the ruling is certainly not a decision to be taken lightly, given the important human rights concerns raised in the case, the ruling of the chief justice has brought about significant ambiguity surrounding the Constitution and Bill of Rights, and the interpretation of and ability of the court to amend other laws should similar applications be made.

“A third concern is whether, given the language in section 14 (1) of the Constitution, it was open to the court to find that the right to marry and found a family, could be located in other rights within the Bill of Rights, namely, sections 9 and 10 of that document.

“After very careful consideration of the three main points… the Government is of the view that the issues are of fundamental constitutional importance and therefore it is in the public interest to have them considered and determined by an appellate court,” Premier McLaughlin told legislators.


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