By: Tina Trumbach
Reaction from the local community is decidedly mixed on the issue of gay marriage, following the Human Rights Commission’s call on the CI Government to legalise same-sex unions in the Cayman Islands.
The HRC warned earlier this week that Cayman could be found in breach of both the European Convention on Human Rights and the Cayman Islands Constitution 2009 without instituting a legal framework allowing same-sex unions.
This came after a ruling on 21 July by the European Court of Human Rights (ECHR) requiring Italy to recognise and protect same-sex unions under domestic law. Italy is the only major western European country that does not recognise either civil partnerships or gay marriage.
As a British Overseas Territory, the Cayman Islands falls under the jurisdiction of the European Court of Human Rights.
Sara Collins is a former HRC member and a lawyer consulting on human rights issues, with a particular interest in Lesbian, Gay, Bisexual & Transgender (LGBT) rights and rights for children and the disabled with local law firm Etienne Blake.
Asked if the Cayman Islands will eventually be bound by the rulings of the ECHR regarding same-sex unions, Ms Collins said, “I think the HRC is correct in saying there could be a successful legal challenge to the lack of any protection for same sex unions here, in the same way that the European Court recently upheld such a challenge from Italy.”
Ms Collins noted that the Cayman Islands Constitution 2009 paves the way for legally recognising same-sex unions.
“Section 9 of our Constitution, which is based on Article 8 of the European Convention, provides that government must respect every person’s private and family life,” she said. “When you read that section together with section 16, which provides that there can be no unjustifiable discrimination by the government in respecting the Constitutional rights (including the right to family life) the inescapable conclusion is that same sex unions must be given legal recognition and protection.”
In its detailed judgment, the ECHR considered that legal protection and recognition should be available to same-sex couples in a stable committed relationship as it was for couples of different sexes. It held that a civil union or registered partnership would be the most appropriate way for same-sex couples to have their relationship legally recognised.
Although the Cayman Islands Constitution 2009 specifically defines marriage as a union between a man and a woman, it does not prohibit laws allowing homosexual couples to enter into civil partnerships. These laws do not currently exist.
“Our Constitution expressly prohibits same sex marriage, but it does not expressly prohibit same sex civil partnerships. I cannot see any persuasive reason, based on public morality or otherwise, which would provide grounds for continuing to discriminate against same sex partnerships,” Ms Collins said.
Bishop Nicholas Sykes of St Alban’s Church of England is the Chairman of the Cayman Ministers’ Association and a former member of the HRC. He was involved in the constitutional review process which resulted in the specific definition of “marriage” included in the 2009 Constitution.
Asked if he thought same-sex unions should be legalised in the Cayman Islands, Rev. Sykes noted a difference between civil partnerships and the traditional idea of marriage.
He said: “They are “legal” already, in that they do not attract legal censure under Cayman Islands law. However, neither they nor heterosexual unmarried relationships have the same legal status as marriage under Cayman Islands law. Neither should they, because they do not provide a community with the same or equivalent benefits as does marriage.”
“Marriage has from ancient times been understood to be the committed union of a man and a woman, having the customary intention of founding a family,” Rev. Sykes said.
However, the HRC urged equal protection and recognition for both homosexual and heterosexual couples: “The Human Rights Commission agrees that all couples in stable relationships should be entitled to equal dignity in the eyes of the law, regardless of their sexual orientation. The Cayman Islands should take this opportunity to amend its laws.”
Asked if she thought the political will exists locally to be proactive on the issue of same-sex unions, Ms Collins said: “I am not sure whether it is strong enough now, but I believe that it will get stronger over time. However, I don’t think we should expect politicians to lead on this issue. In my experience, governments will follow what they perceive to be the will of the people. There is a sense of inevitability growing about marriage equality now and that is because ordinary people have been brave enough to demand it around the world, in ever increasing numbers, because ordinary people have been brave enough to demand protection for their own families and recognise everyone else’s right to do the same. That’s what we need to happen here and throughout the Caribbean in order to feed the political will to do something about this glaring injustice.”
Ms Collins also noted the role of popular support in recent court rulings on same sex unions: “It’s also worth noting that, in the recent European Court ruling, the Court attached a great deal of importance to “the continuing international movement towards legal recognition” as well as the fact that there was popular support in Italy for the recognition and protection of same sex unions. In my view, the more demonstrable support there is among the local population for recognition of same sex unions, the narrower the latitude local governments will be given by the European Court to refuse to recognise them.”
However, Rev. Sykes had a very dissimilar view on popular support for legally recognising and protecting same-sex unions: “Certainly the HRC statement (heavily influenced by the wider west culture it seems to me) seems to suggest that the same-sex movement is unstoppable. I, on the contrary, think that it has practically stalled already. Europe is divided down the middle on it and probably will not go too much further. Most of Africa and the East think that the West has lost its marbles,” he said.
Rev. Sykes was clear in making a distinction between heterosexual and homosexual relationships: “Perhaps the most egregious error is to assert there is no “discrimination” (read “distinction”) to be justifiably made between heterosexuality and active homosexuality. But the distinctions that can and should be made are wide and unbridgeable,” he said.
Ms Collins noted that such differences of opinion on the issue provide a stumbling block to legalising same-sex unions in Cayman, and in the wider region: “The biggest barrier here and throughout the Caribbean is the idea that our culture forbids it, that our culture abhors it, that our culture is opposed to the spread of human rights. I disagree. Our history in the Caribbean is one of triumph over injustice. If anyone should know how important it is to ensure that rigid systems of inequality and injustice are not just inherited from generation to generation, it should be Caribbean people. This is a collective mental block that I believe we can and will overcome, but it is a significant one because political developments, or advances in case law, will undoubtedly be influenced to some extent by popular opinion,” she said.
There are also differing opinions on the view of the HRC that Cayman is liable to legal challenges without a framework in place to recognise and protect same-sex unions.
“The Human Rights Commission calls upon the government to enact such legislation: in the event that it fails to do so this recent judgment is likely to mean that Cayman is in breach of its obligations under the Convention and certainly that it is more vulnerable to a successful challenge in the Court,” the HRC said.
Rev. Sykes thought it unlikely, saying: “I am advised that the CI Bill of Rights is the authoritative way in which the European Convention is interpreted for Cayman. Therefore I am unsure what effect, if any, rulings such as this one can have on the Cayman Islands, unless some lawsuit is submitted directly to the European Court. However, the unfailing practice so far of that court is to ensure that all the local means of redress are exercised first. Since the Privy Council is the final court of appeal for the Cayman Islands, it is unclear how such a case could end up in the European Court.”
Ms Collins noted that individual challenges could potentially occur: “We should also remember that we have a right of individual petition to the European Court, after exhausting domestic remedies,” she said.
“What the HRC is effectively saying to the legislature is do something proactive about this issue by passing laws now rather than waiting for a legal challenge that is likely to succeed,” Ms. Collins said.