The Cayman islands domestic partnerships bill: implications for the overseas territories

By Craig Brewin, craig.brewin@fotbot.org

The campaign within the Overseas Territories for the rights of same sex couples to be recognised in law took another turn of events in July when the Legislative Assembly of the Cayman Islands voted against the Domestic Partnerships Bill. The UK had expected the Bill, which had the support of the Cayman Premier Alden McLaughlin, a long-time opponent of same-sex marriage, to pass. But a free vote and a missing Assembly member meant the Bill lost by one vote

The UK Foreign and Commonwealth Office (FCO) had even referred to the Bill in this year’s iteration of its Human Rights and Democracy Report, published just a few days earlier, in which it restated its commitment to not intervene in the matter. But on this occasion it had little choice but to do so. The UK Government is required to ensure that the rule of law is upheld, and there had been an instruction from the Cayman Court of Appeal to pass legislation that would guarantee the constitutional rights of all citizens. The Bill does not impact on the current law relating to marriage, allows any two people to enter into a legal partnership regardless of sexual orientation, and is focused primarily on rights relating to pensions, inheritance, healthcare, tax, and immigration. It also addresses long-standing issues relating to “common law” relationships.

The speed of the Governor’s response surprised many. After after consulting the UK Foreign Secretary, he announced within days that the Bill would still be passed into law, using the reserve powers that exist within the Cayman Constitution. There had been some brief speculation that that Governor would revert to the original Court ruling that legalised same-sex marriage, which is the FCO’s preferred outcome, but it decided instead to enact the provisions of the Bill.

The issue does not end here though. There is another case in the offing with the Bermuda Appeal due to be heard by the Privy Council next year. In the Cayman Case, the Courts ruled in favour of same sex marriage, but this was overturned on appeal on the grounds that it was for the Assembly to determine how these rights are legislated for. The Domestic Partnerships Bill is not dissimilar to the Act passed in Bermuda. There, marriage was legalised by the Courts, but then specifically illegalised by a Domestic Partnerships Act. The clause in the Act that specifically criminalises same-sex marriage was subsequently removed by the Courts and it is that issue that the Privy Council will now consider.

It is complicated. The FCO’s Human Rights and Democracy Report reiterates the UK Government’s belief that “the strongest, safest, and most prosperous societies are those in which all citizens can live freely without fear of discrimination, and where all citizens, including LGBT people, can play a full and active part in society”. It reported that “nine Overseas Territories had legal recognition and protection for same-sex relationships” and that “same-sex marriage is legal in the Falkland Islands, Gibraltar, Pitcairn Islands, St Helena, Ascension Island, and Tristan da Cunha.” Assuming they are including Bermuda, then Cayman Islands now brings the number to 10.

But what are the implications of the decision taken by the Governor of the Cayman Islands? Premier McLaughlin had been one of the signatories to a statement made by the Joint Ministerial Council after the Foreign Affairs Committee had published the report of its inquiry into the constitutional relationship between the UK and OTs. This described the recommendations on financial transparency, belongership, and same sex marriage as “neo-colonialism”. Although the FCO never acted on the recommendations those fears will remain.

In his statement on the decision to enact the legislation McLaughlin could not hide his annoyance. He pointed out to his colleagues that it was wrong to invite the UK to make decisions on Cayman’s behalf, but that is what his opponents were doing. The Appeal Court was clear in saying that “in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom Government, to recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end.” Intervention was, therefore, inevitable

Mclaughlin expressed his gratitude that the UK had not imposed same-sex marriage but stated that failure to enact the Bill would have made it more likely that the Privy Council would impose same-sex marriage when it discusses the issue in February. As far as the Premier is concerned the Bill was a satisfactory compromise: One that “preserves the institution of marriage as being between a man and a woman whilst protecting the rights of same-sex couples.” An admittedly unscientific poll in one of the local media outlets showed the Bill to have majority support within the community.

The affair has implications for the other Caribbean territories too. All the constitutions of the Caribbean territories contain the right to marry someone of the opposite sex, but the courts of the Cayman Islands and Bermuda have ruled that this is not exclusive, and the denial of marriage denies other human rights. In the constitutions of Bermuda and the Cayman Islands there are no specific statements that their clauses apply to everyone regardless of sexual orientation, but in those of the BVI, TCO and Montserrat there is. Domestic Partnerships, at the very least must now be considered to be legal everywhere, and if a demand arises then arrangements would need to be put in place.

Bermuda and the Cayman Islands have spent millions of dollars fighting their cases, but similar actions in other Territories would now seem likely to fail. Montserrat would not have the money to fight a case anyway. The issue for the UK, and the Territory Governments, is whether they are willing to allow couples to marry, or enter a legal partnership, without first forcing them through a protracted, punative. and possibly pointless period of litigation.

An editorial in the Caymanian Times accepted that the Cayman Islands could no longer be “a place that time forgot” and that “faith is a personal decision that should not be forced on others”. But it also lamented the loss of “Christian Heritage” as an argument against pressure for change. “Two examples of laws that may change are the Saturday Midnight closing of Bars which was said to be related to Sunday Worship and also the absence of casinos and gaming laws. Many residents have publicly criticized the hypocrisy of these laws as Bars currently are allowed to open on Sunday mornings and raffles (a form of gambling) are allowed to be conducted as fund raising events.”

Of more significance is the impact on the prospects for greater independence. In his statement McLaughlin said; “We failed in our duty, depriving our own Caymanians of rights that they have under the law”. “We said to the UK and the world that the Cayman Islands Legislative Assembly has not sufficiently matured and cannot be trusted to carry out a fundamental duty to respect the rule of law. This very shameful event, that should have been avoided, left the UK Government with no other option.”

Last year McLaughlin had railed against the UK’s “shameful attempt to reproduce neo-colonialism” so his wording emphasises the point he makes now. He said: “What is also regrettable as a result of this is that the UK will undoubtedly now decide to retain Section 81 of the Constitution despite my having gotten them to agree to remove it as part of the pending Constitutional changes. I have always argued that it is unwise to encourage, and even worse to force the UK, as we have done, to act on behalf of the Legislative Assembly as having done so once they may find it easier to do so again in other circumstances. The failure of the Legislative Assembly to do its duty last Wednesday has set back our efforts at increased autonomy immeasurably.” This may also have a ripple effect across all the Territories.