Same-sex marriage in the Cayman Islands
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Same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
is currently not recognised in the
Cayman Islands The Cayman Islands () is a self-governing British Overseas Territory—the largest by population in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, which are located to the ...
. The island's
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
law limits
marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
to different-sex couples. A lawsuit with the
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successfully challenged this ban in March 2019; however, the Court of Appeal overturned the ruling in November 2019. Same-sex
civil partnerships A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
are legal following the enactment of the ''Civil Partnership Law, 2020'' on 4 September 2020. Same-sex marriages legally performed in other jurisdictions are recognised as civil partnerships in the Cayman Islands.


Background

In 2006, the Cayman "People for Referendum" activist group began protesting against
LGBT rights Rights affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by country or jurisdiction—encompassing everything from the legal recognition of same-sex marriage to the death penalty for homosexuality. Notably, , 33 ...
and
same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same Legal sex and gender, sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being ...
, after a Netherlands Antilles court ruled that
Aruba Aruba ( , , ), officially the Country of Aruba ( nl, Land Aruba; pap, Pais Aruba) is a constituent country of the Kingdom of the Netherlands physically located in the mid-south of the Caribbean Sea, about north of the Venezuela peninsula of ...
had to recognise same-sex marriages registered in the
Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...
. The group criticised the judgement, claiming that the British
Foreign and Commonwealth Office The Foreign, Commonwealth & Development Office (FCDO) is a Departments of the Government of the United Kingdom, department of the Government of the United Kingdom. Equivalent to other countries' Ministry of Foreign Affairs, ministries of fore ...
(FCO) could force legal recognition of same-sex marriages in the Cayman Islands.Gay Life in Cayman Islands
/ref> The
Constitution of the Cayman Islands The current Constitution of the Cayman Islands, the fourth written constitution for the Cayman Islands since 1959, was established by "The Cayman Islands Constitution Order 2009" of 10 June 2009, and came into force on 4 November 2009, by a proclam ...
, approved in June 2009, notes that the
Government of the Cayman Islands The Cayman Islands is a parliamentary representative democratic dependency. As a British Overseas Territories, Charles III is the head of state. The Premier of the Cayman Islands is the head of government. Executive power is exercised by the ...
"shall respect" the right of every unmarried man and woman of
marriageable age Marriageable age (or marriage age) is the general age, as a legal age or as the minimum age subject to parental, religious or other forms of social approval, at which a person is legitimately allowed for marriage. Age and other prerequisites to ...
as defined by law to freely 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. In August 2015, following the ruling in ''
Oliari and Others v Italy ''Oliari and Others v. Italy'' (Application nos. 18766/11 and 36030/11) is a case decided in 2015 by the European Court of Human Rights (ECtHR) in which the Court established a positive obligation upon member states to provide legal recognition fo ...
'', a case in which the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
(ECHR) ruled that it is discriminatory to provide no legal recognition to same-sex couples, the Legislative Assembly unanimously (except for four abstentions) passed a motion reaffirming the same-sex marriage ban. The ECHR has jurisprudence over the Cayman Islands. In 2015, Premier
Alden McLaughlin Sir Alden McNee McLaughlin Jr. (born 6 September 1961) is a Caymanian politician, former Premier of the Cayman Islands. McLaughlin previously served as leader of the People's Progressive Movement party from February 2011 – March 2021. McLa ...
indicated that the government was examining immigration law and regulations to allow same-sex couples who have legally married in other jurisdictions the right to have their spouse recognised as a
dependant A dependant is a person who relies on another as a primary source of income. A common-law spouse who is financially supported by their partner may also be included in this definition. In some jurisdictions, supporting a dependant may enabl ...
. In July 2016, the Immigration Appeals Tribunal ruled in favour of a gay man who sought to be recognised as a dependant. The couple's application had been made 14 months prior and had been rejected by immigration authorities. 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 A residence permit (less commonly ''residency permit'') is a document or card required in some regions, allowing a foreign national to reside in a country for a fixed or indefinite length of time. These may be permits for temporary residency, or p ...
to a same-sex couple in
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on family grounds was unjustified
discrimination Discrimination is the act of making unjustified distinctions between people based on the groups, classes, or other categories to which they belong or are perceived to belong. People may be discriminated on the basis of race, gender, age, relig ...
.European Court ruling paves way for gay marriage case in the Cayman Islands
/ref> Despite this ruling, immigration authorities later refused to grant dependency rights to two dual Caymanian-British same-sex couples. The two couples were forced to leave the Cayman Islands, despite one partner being a Cayman citizen. On 6 October 2016, the Legislative Assembly voted against holding a
referendum A referendum (plural: referendums or less commonly referenda) is a direct vote by the electorate on a proposal, law, or political issue. This is in contrast to an issue being voted on by a representative. This may result in the adoption of a ...
on the legalisation of same-sex marriage. The proposal was voted down 8–9. 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 dependant on his or her partner's permit. Premier Alden McLaughlin expressed his opposition to the referendum proposal. 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.


Lawsuit and civil partnerships

In April 2018, a dual Caymanian-British same-sex couple, Chantelle Day and Vickie Bodden, revealed their intention to file a
lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
challenging the Cayman Islands'
statutory A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
same-sex marriage ban, after their application to marry was rejected by the civil registry. The couple formally filed suit with the
Grand Court Grand may refer to: People with the name * Grand (surname) * Grand L. Bush (born 1955), American actor * Grand Mixer DXT, American turntablist * Grand Puba (born 1966), American rapper Places * Grand, Oklahoma * Grand, Vosges, village and c ...
on 20 June 2018, arguing that the section of the ''Marriage Law'' which defines
marriage Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
as between "one man and one woman" was incompatible with various rights guaranteed under the Constitution.
Oral argument Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...
s in the case were heard by the court, specifically Chief Justice
Anthony Smellie Sir Anthony Stafford Smellie is the Chief Justice of the Cayman Islands. Career Smellie received his LLB from the University of the West Indies in 1975. He was called to the bar in Jamaica, where he served as Clerk of the Courts in Westmor ...
, in February 2019. 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 A civil union (also known as a civil partnership) is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage ...
or
domestic partnership A domestic partnership is a legal relationship, usually between couples, who live together and share a common domestic life, but are not married (to each other or to anyone else). People in domestic partnerships receive benefits that guarantee r ...
scheme, though they argued that the creation of such a scheme should be left to legislators. 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. Justice Smellie used his judicial powers to rewrite the 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." The ruling went into effect immediately and did not require ratification by the Legislative Assembly or the
governor A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
. On 3 April 2019,
Premier Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier. A premier will normally be a head of governm ...
Alden McLaughlin Sir Alden McNee McLaughlin Jr. (born 6 September 1961) is a Caymanian politician, former Premier of the Cayman Islands. McLaughlin previously served as leader of the People's Progressive Movement party from February 2011 – March 2021. McLa ...
announced that the government would
appeal In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
the decision and seek a
stay Stay may refer to: Places * Stay, Kentucky, an unincorporated community in the US Law * Stay of execution, a ruling to temporarily suspend the enforcement of a court judgment * Stay of proceedings, a ruling halting further legal process in a tri ...
of the judgement. The ruling was met with fierce opposition 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 Sodom and Gomorrah () were two legendary biblical cities destroyed by God for their wickedness. Their story parallels the Genesis flood narrative in its theme of God's anger provoked by man's sin (see Genesis 19:1–28). They are mentioned frequ ...
?", and Education Minister
Julianna O'Connor-Connolly Juliana O'Connor-Connolly is a Caymanian politician, former Speaker of the Legislative Assembly of the Cayman Islands and former Premier of the Cayman Islands. O'Connor-Connolly currently serves as the Member of Parliament for the constituenc ...
inviting members of the public to violently object to and disrupt the petitioners' marriage, saying "attend the marriage... ndmake sure you object" in person. The
Court of Appeal A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of t ...
granted the request to stay the ruling on 10 April 2019, thereby preventing the judgement from taking effect. The court heard the case on 28-30 August 2019, and on 7 November 2019 it overturned the Chief Justice's previous judgment. The court called on the Legislative Assembly to enact civil partnerships or a legal equivalent, as required by the European Court of Human Rights' decision in ''
Oliari and Others v Italy ''Oliari and Others v. Italy'' (Application nos. 18766/11 and 36030/11) is a case decided in 2015 by the European Court of Human Rights (ECtHR) in which the Court established a positive obligation upon member states to provide legal recognition fo ...
'' and the Bill of Rights of the Constitution, and called on the
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
to step in if the Cayman Government failed to do so. In January 2020, lawyers for the petitioning couple announced they had begun the process of filing an appeal with the UK-based
Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
. 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 Martyn Keith Roper (born 8 June 1965) is a British diplomat and civil servant who has been Governor of the Cayman Islands since 29 October 2018. Roper was the List of ambassadors of the United Kingdom to Algeria, British Ambassador to Algeria ...
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". The bill was rejected by a 8–9 vote on 29 July. MLA Kenneth Bryan who had previously expressed support for the bill eventually voted against it, causing it to fail. Premier McLaughlin repeatedly indicated during the bill's debate that failure to pass it would likely result in the
Government of the United Kingdom ga, Rialtas a Shoilse gd, Riaghaltas a Mhòrachd , image = HM Government logo.svg , image_size = 220px , image2 = Royal Coat of Arms of the United Kingdom (HM Government).svg , image_size2 = 180px , caption = Royal coat of arms of t ...
stepping in and imposing domestic partnerships or same-sex marriage on the Cayman Islands. 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." On 30 July, Shadow Minister for Foreign and Commonwealth Affairs
Stephen Doughty Stephen John Doughty (born 15 April 1980) is a Welsh Labour and Co-operative Party politician who has served as the Member of Parliament (MP) for Cardiff South and Penarth since 2012. He has been the Shadow Minister for Africa and a Shadow M ...
wrote to UK Overseas Territories Minister Baroness Sugg urging Her Majesty's Government to step in. On 5 August, Baroness Sugg approved the use of the Governor's reserved powers under section 81 of the
Constitution of the Cayman Islands The current Constitution of the Cayman Islands, the fourth written constitution for the Cayman Islands since 1959, was established by "The Cayman Islands Constitution Order 2009" of 10 June 2009, and came into force on 4 November 2009, by a proclam ...
to enact a law recognising same-sex civil partnerships. 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 following a 21-day
public consultation Public consultation (Commonwealth countries and European Union), public comment (US), or simply consultation, is a regulatory process by which the public's input on matters affecting them is sought. Its main goals are in improving the efficiency, ...
period. Following the consultation, the title was changed from "domestic partnership" to "civil partnership". On 4 September 2020, Governor Roper assented to the ''Civil Partnership Law, 2020'' and 11 consequential pieces of legislation which came into effect on the same day. Under the changes, civil partners are allowed to jointly adopt, share
health insurance Health insurance or medical insurance (also known as medical aid in South Africa) is a type of insurance that covers the whole or a part of the risk of a person incurring medical expenses. As with other types of insurance, risk is shared among ma ...
, immigrate together and enjoy other rights extended to married couples. Civil partnerships are open to both same-sex and opposite-sex couples. Premier McLaughlin said he felt "utterly humiliated" that because of the Assembly's failure to pass the bill, as required by the Court of Appeal, the UK Government had been forced to intervene. On 29 October 2020, Samantha Louise Erksine and Alice Hillman Lopez became the first couple in the Cayman Islands to enter a civil partnership. In December 2020, the marriage of Paul Pearson and Randall Pinder, who were married in Ireland, was recognised by the Immigration Appeals Tribunal as equivalent to a civil partnership. The tribunal ruled that the Cayman Islands is required to recognise same-sex marriages legally performed in other jurisdictions. It also ordered that Pinder be granted permanent residency. The ruling stated that: Following passage, a conservative Christian group filed a lawsuit against the civil partnership law, arguing that Governor Roper was not permitted to use his constitutional powers to implement the law. On 28 March 2022, Grand Court Judge Richard Williams ruled that Roper did not act unlawfully and his actions were within his scope of responsibility considering the government's breach of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
; "By this mechanism, the Constitution strikes a constitutional balance. In the circumstances where the Court of Appeal has so forcefully set out its expectations, it is understandable and reasonable for the Governor to have felt it necessary to enact the CPA ivil Partnership Actdue to the long ongoing breach of the international obligation of the UK which otherwise would not have been adequately addressed by Parliament".


Statistics

26 couples registered a civil partnership in the Cayman Islands in the first six months. By the end of 2021, 47 couples had entered into a civil partnership.


Appeal to the Privy Council

In January 2020, lawyers for Chantelle Day and Vickie Bodden announced they had begun the process of appealing the Court of Appeal's ruling to the Privy Council. The
Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
, with five members,
Lord Reed Robert John Reed, Baron Reed of Allermuir, (born 7 September 1956) is a British judge who has been President of the Supreme Court of the United Kingdom since January 2020. He was the principal judge in the Commercial Court in Scotland before b ...
,
Lord Hodge Patrick Stewart Hodge, Lord Hodge, PC (born 19 May 1953) is a British lawyer, currently serving as Deputy President of the Supreme Court of the United Kingdom. Early life Hodge was educated at Croftinloan School, an independent junior boardin ...
, Lady Arden, Lord Sales and Dame Victoria Sharp, heard oral arguments in the case on 23 and 24 February 2021. On 14 March 2022, the Privy Council dismissed the appeal and ruled that the Constitution does not demand the recognition of same-sex marriage. Activists expressed disappointment with the decision. The president of Colours Cayman, Billie Bryan, said, "The Privy Council has done nothing more, by its decision, than reassert the oppressive political environment of yesteryear." Governor Roper said in a statement, "I must pay tribute to Chantelle and Vickie for their courage and determination in standing up for their rights over the last five years. They have inspired many through their actions. Same-sex marriage is legal throughout the United Kingdom and in several UK Overseas Territories. Going forward, it is a policy matter for the elected government as to whether it now wishes to introduce same-sex marriage in Cayman. That would provide equality between heterosexual and same-sex couples." Premier
Wayne Panton Wayne Panton is a Caymanian politician, currently serving as Premier of the Cayman Islands. Biography Panton is an attorney who served as a managing partner for Walkers. Before becoming Premier of the Cayman Islands, Wayne Panton, served as a ...
said the ruling does not prevent the government from legalising same-sex marriage in the future, "Many of the younger generations of Caymanians have different views on the issue of marriage and this may become an issue of social justice in time to come." Panton also called for tolerance, "The issue of same-sex marriage is an emotive one in our Islands, with strong views held by those in support of and those against same-sex marriages. As we process the Privy Council's ruling, we must remember to conduct ourselves with respect and civility… No matter your view on the issue of same-sex marriage, I ask that you discuss your views respectfully and with due consideration to the feelings and emotions of others."


See also

*
LGBT rights in the Cayman Islands Lesbian, gay, bisexual, and transgender (LGBT) persons in the Cayman Islands may face legal challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity are legal in the Cayman Islands. Despite anti-gay attitud ...
*
Recognition of same-sex unions in the Americas Several countries in the Americas grant legal recognition to same-sex unions, with almost 85 percent of people in both North America and South America living in jurisdictions providing marriage rights to same-sex couples. In North America, same- ...
*
Same-sex marriage in the United Kingdom Same-sex marriage is legal in all parts of the United Kingdom. As marriage is a devolved legislative matter, different parts of the UK legalised at different times; it has been recognised and performed in England and Wales since March 2014, in ...
*
Recognition of same-sex unions in the British Overseas Territories Among the fourteen British Overseas Territories, eight – Akrotiri and Dhekelia, the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, Gibraltar, the Pitcairn Islands, Saint Helena, Ascension and Tristan da ...
* Same-sex union court cases


References


External links

* * * * * * * * * * * * {{North America topic, LGBT rights in LGBT rights in the Cayman Islands
Cayman Islands The Cayman Islands () is a self-governing British Overseas Territory—the largest by population in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, which are located to the ...
Cayman Islands The Cayman Islands () is a self-governing British Overseas Territory—the largest by population in the western Caribbean Sea. The territory comprises the three islands of Grand Cayman, Cayman Brac and Little Cayman, which are located to the ...