Loss of civil union law would restore rights violations

| 03/12/2021 | 75 Comments

(CNS): The lawyer representing the Attorney General’s Chambers and the governor’s office told a court Thursday that if it overturned the Civil Partnership Act, which gave legal status to same-sex unions, it would be re-introducing the serious violation of human rights against the LGBT community that had been identified by the Cayman Islands Court of Appeal.

Responding to claims made by Hugh Southey QC, acting on behalf of Kattina Anglin, that the governor was wrong when he used his constitutional power to implement the law, Tom Hickman QC argued that section 81 makes provision for exactly this type of situation.

As the controversial judicial review of the Civil Partnership Act got underway Thursday, Southey claimed that Governor Martyn Roper did not have the power to implement the law more than a year ago, in September 2020. He said that section 81 of the Constitution does not have the broad implication that Hickman has argued it does.

Southey told the court that the law should have been made directly by the UK using an order-in-council because the issue related to an area outside the governor’s direct responsibility. He claimed that the incorrect measure he used was to avoid the political fallout of using the more heavy-handed order-in-council, where the UK would be using its colonial powers to force legislation on a territory.

Anglin, who is supported by the non-profit organisation, the Christian Association For Civics, argued in her application for the judicial review that the democratically elected Parliament here voted against the Civil Partnership Act because the people of the Cayman Islands did not support the rights of same-sex couples to some form of marriage equality.

Therefore, the governor’s decision to use his powers under section 81 was unconstitutional. Anglin’s attorney claimed that these powers apply only to his areas of direct responsibility, such as security and external affairs, and the civil partnership issue is purely a domestic matter devolved to the elected local government.

Southey said that the UK has made it clear, given the comments that have been made frequently by overseas territories ministers and other senior officials, that same-sex marriage is a matter for the government’s of the territories. Given that section 81 was the wrong constitutional tool, he said that the court must overturn the law because a court cannot support legislation without a legal basis.

He dismissed the fundamental defence being put forward by the governor that the use of section 81 was correct, not least because of the need for the UK to meet its obligations under the European Convention on Human Rights, which the Cayman Islands Court of Appeal had made clear was being breached.

Nevertheless, Southey accepted that if the court agreed with him, “what the future holds” for couples already registered under the Civil Partnership Act “is difficult to predict”.

Hickman argued, however, that section 81 was the right mechanism for the governor to have used in order to fulfill the direction from the appeal court and meet the obligations under the ECHR, given that the UK has indicated that for those territories with the right of self-determination on topics such as same-sex marriage, it would not use an order-in-council.

But the lack of a legal framework for same-sex couples to access some kind of marriage equality, due to the failings of the local legislature, meant that the politicians here put the UK in breach of its international obligations. The correct way to address this breach was through the governor’s powers under section 81, and the need to enact the Civil Partnership Act was well within the definition of external affairs, he said.

Hickman also pointed out that the governor was given a direction by the UK to do it. He told the court that this section covers a wide range of issues and it was put in the Constitution in the first place to allow the governor to deal with protecting the UK’s interests.

But he warned that if the court were to find in Anglin’s favour, it would be undermining the constitutional powers of the governor. He also made the point that there would be no damaging consequences for Anglin and the religious organisation that brought the judicial review if the court were to quash the law.

On the other hand, it would be devastating for the dozens of families who have been able to register their partnership, he noted, as he outlined the very serious fallout from such a move, which would derail the immigration status of dependents and interfere with property rights and medical issues, among many other consequences.

Hickman said that if the court found that Anglin’s attorney was correct and went on to upend the law, it would then create another set of unconstitutional circumstances, putting Cayman back in breach of its own Bill of Rights and put the UK back in breach of the ECHR, effectively “restoring the human rights violations”.

This point was supported by Alex Potts QC, who represented Colours Caribbean, the Cayman-based LGBT advocacy group that was granted leave by the court to be intervenors in the case, given the significant implications for the community it represents.

Potts was given just one hour to speak to the court but he had submitted dozens of affidavits from the many couples who would be severely impacted if the court overturned the law, illustrating the massive inequity and fairness regarding the lack of effect any result would have on the plaintiff’s life.

He said that while they were well aware that the case boils down to a very narrow argument about the governor’s powers to pass laws and where it lies in the Constitution, there were real people being impacted by this legal nuance. He said there was “compelling evidence” given to the court of the real distress it would cause the couples whose lawful family life has been created under this law.

The submissions from the lawyers were completed on Friday before Justice Richard Williams, who adjourned the case for a future date to consider his decision.


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Comments (75)

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  1. Rodney Barnett IV says:

    It seems to me, that those who constantly say “The Caymanian People” are against marriage for LGBT folks are out of touch.

    For all of the time I have lived here I have never come across one person who is bigoted against me and my husband. While we do not go around with Gay Flags on our clothing, we always introduce our spouse to others as “my husband”. There has never even been a “blink” of the eye. Mostly because no one gives a darn.

    If there truly are these large numbers of anti-gay folks on the island, I suggest they focus on those who are robbing our homes and businesses, molesting our children, stealing from our government, and generally disrupting life in Cayman. This includes those members of the clergy who are teaching hate, rather than good citizenship, responsibility, and love of one’s neighbor.

    • Caymanian says:

      I am a knife that cuts both ways. I say this straight up and I MAKE NO APOLOGIES FOR IT.

      Let me start by saying this. The Cayman Islands at it’s core is a Christian Community and does by a majority, maybe not vast like 90% but probably around 65% do not favor LGBTQ getting Marriage because WE and yes I include myself, WE look at “Marriage” as something sacred and sanctified by God and God in our eyes does not bless LGBTQ marriage and that is without question in the Christian community. I could go into Woman being created for man and Sodom & Gomorrah but I won’t. It’s settled in the Christian Community where God stands on this.

      The simple solution for many of us Christians who are on the edge or near the edge, like myself, is Civil Unions. This is a legal matter not a Christian matter and for most of us Christians we are OKAY with that BUT there are far LEFTS and far RIGHTS and these are the true psychos in our midst.

      Psycho 1 – Extreme LGBTQ – These are the ones trying to not just get the rights and privileges of marriage but will not JUST accept that but want to OVERTHROW the old ways to enforce their ways. The old add-age give them an inch they want a mile applies. There is a degree of Psycho 2 that are there simply because they view this acceptance of Civil Union as a precursor to full and they won’t let this happen.

      Psycho 2 – The Extreme Christian – These are the ones like Mrs Anglin who rail against everything. They won’t give an inch no matter what. They feel anything we do here is against Christ.

      My position has always been guided by my view of “Give unto Caesar what is Caesars”. Caesar represents to me the law or government. So in God’s eyes money and things of this nature is not of Christ. Jesus did not want your money. He never had the best clothes or best horse to ride on. No. He walked everywhere he went in his sandles.

      I say all this to say. Let them have the rights they desire through the law. A civil union is a decent compromise. It’s not a sacred marriage ordained by a Priest. It’s a recognition of two people coming together to take on life in a family atmosphere UNDER THE LAW.

      I just wish for peace in the middle and for all the extreme LEFT and RIGHT to grow the @#$# up and move on with their life.

      Give the LGBTQ their benefits via a Civil Union and lets move on.

      • Anonymous says:

        As a gay man I am prepared to say ‘fair enough’, but unfortunately, even civil partnerships they are trying to take away from us. It’s gone too far now, I honestly hope Privy Council reinstates same sex marriage just for the sake of it. And probably not only here, but introduces it in other BOTs, just to put this ‘back and forth’ situation a full stop.
        Yes, devolved issues etc. Obviously this issue is being shoved around and avoided at all costs. Enough. And as for the concept of marriage itself, it predates Christianity and Christianity by no means owns it. What a Christian person thinks about marriage is purely their own opinion. One in billions. Opinions can differ, laws and equality must apply to all.

        • Caymanian says:

          Not for “marriages” but would be happy for you to have civil unions or partnerships

      • Anonymous says:

        .. A Priest.. Ohh please!!!

      • Anonymous says:

        I am a multi-generational Caymanian.

        I don’t care if unna Christian.

        I no longer am, but I’m still straight.

        You don’t speak for me. Equality for all.

      • Stop the god fandom from marrying says:

        Personally, I am opposed to two Christians getting married. It disgusts me tremendously, and it hurts my feelings. As such, I propose that Christians be banned from marrying. Thank you

  2. Anonymous says:

    Imagine having countless Caymanians living in 3rd world conditions such as without running water and still thinking this is a priority.

    Do a poll, even the most ardent of Gods children aren’t that fussed by this. Only the bigoted and xenophobic are and therefore, they aren’t gods children.

  3. Anonymous says:

    i am a Christian, I am a Catholic, I am a Rasta, I am a Buddhist, I am a Jew, I am Amish, I am all things.. I try not to be a hypocrite.

  4. Anonymous says:

    Attention: Current Government of the Cayman Islands

    Call an urgent and emergency Referendum on this matter. Let the people of the Cayman Islands decide what they truly want.

    Up until now, the governor has done what I believe is the right thing to do. LOVE is LOVE and when it boils down to this matter, there is absolutely NO FAMILY EXEMPTED from this matter. There is a gay or bi person in every family here and worldwide.

    YES to a REFERENDUM to decide what the people of the Cayman Islands want to happen on this matter.

    • Anonymous says:

      For a million and the first time: a referendum can NOT be held on the matters regarding human rights.

      • Anonymous says:

        It’s a good place to start. Then amend the constitution to suit. Rights don’t exist without agreement.

        • Poiuyt says:

          5:33pm studied Advanced Made Up Law at the University of Common Sense Law School. Sitting above all this is the ECHR, which applies to Cayman regardless of “agreement” until and unless Cayman is independent.

    • Anonymous says:

      You can’t hold a referendum on human rights issues. Should we have a referendum on whether women can vote?

  5. Anonymous says:

    Surely any possible consequences of the judgement are completely irrelevant to this ruling. The judgment must be based purely upon whether the Governor’s actions were legal or not. If they were illegal then they must be undone. If they were legal then they may stand.

    If you start making judgements based on the implications of the outcome of such a ruling, then it would undermine the validity of the rule of law.

    It would be VERY wrong if it was found that the Governor’s actions were illegal, but because of the consequences of undoing those decisions they were allowed to remain unchanged. This would simply mean that one party had ridden roughshod over the other party, and got their own way without any consequences. That would be corruption.

  6. Anonymous says:

    Do what you want, with who you want.

    Nobody cares, not even your fake god

  7. Anonymous says:

    UK Overseas Territory – should appky by UK law or go independent! Let people get on with their lives and stop the hatred. Drop the ‘I am a Christian’, nobody cares if yiu are still a crao human being! Has this pandemic not proved a point yet to some?

    • Anonymous says:

      A christian country yet the unvaccinated have no right to income if they fall sick?

      • Anonymous says:

        I’ve given them my thoughts and prayers.

      • Anonymous says:

        They only get the coveted Herman Cain award.

      • Anonymous says:

        Hat has religion and Christianity got to do with vaccines in any way? There is no valid excuse for being unvaccinated here given the vaccine availability, and you certainly should not be going to church, which is a crowded gathering, if you are not vaxed, unless you want to be responsible for killing the vulnerable.

      • Caymanian says:

        Honestly, if you don’t vaccinate then you ask for what you get.

        If a person is told “do not drive in excess of the speed limit” and they do, get in an accident and die is that not their fault.

        If you do not do what you are told then whatever is to come is on you. You cannot expect to get assistance for being stupid.

    • Caymanian says:

      This is something I would like to see a Government of the Cayman Islands challenge. No law from the UK automatically covers Cayman Islands.

      Any disputed law MUST be resolved by a referendum and rather than a 50 plus 1 split it must be a 60/40 vote.

      If we are to “rule ourselves” why must anything from the UK get automatic over us. Let’s say they said they wanted to be part of China would we want this automatically placed over us.

      We should have a say in all things Cayman.

      And it’s not about independence. It’s about self governance. Some degree of autonomy.

  8. Anon says:

    The civil union law should be done away with because the way it was obtain, was not democratic, it was not voted on by members of parliament. So, the Governor abused his power, and if he has done it once and got away with it, he can do it again on other matters. It is a scary thought. The article here can’t be talking about saving gay socalled “rights” when blatantly the constitutional rights of the entire country have been violated.

    • Anonymous says:

      You clearly have no idea about anything discussed in the article, or anything related to the topic. Please try and see if you can get some facts, then you will see, perhaps, what kind of ridiculous nonsense you just wrote.
      Thank you.

    • Anonymous says:

      Nothing more scary than posts like yours.

    • Anonymous says:

      So doing it right is much more important than getting it done. Here. Got it.

    • Anonymous says:

      The government did not have the backbone to take it to a vote and therefore put on paper who they really are. They took the spineless approach and forced the Governor’s hand.

      • Anonymous says:

        it was put to a vote, the vote was NO then the Governor passed the law anyway.

      • Anonymous says:

        It was voted on in Parliament. It lost by one vote

      • Anonymous says:

        Are you living under a rock? It was put to a vote and those MPs who are now members of PACT voted against it. That is what forced the UK to use the Governor’s reserve powers.

        • Anonymous says:

          Huh?

        • Anonymous says:

          And who is the leader/speaker of the packt. Criminals and women beaters are voted in but let’s mess up and criminalize innocent people just getting on with their lives. Didn’t so called god give them their life too..

    • Anonymous says:

      No, we don’t know yet of it was constitional. That is literally what this Judicial Review is going to establish.
      Your opinion, no matter how strongly held, does not change the facts.

      • Annonymous says:

        Listen government had enough time to try and sit and have this vote. I do remember that they were told to make some kind of legal framework and it needed to be done quickly it was maybe over a year and still not done. It was told that it had to be done. If you left it to government they would have sat down on that for a few more years.

        • Caymanian says:

          “It was told it HAD to be done”.. well that’s where you are wrong. Nobody should tell us what we ought to do on domestic matters!

          • Anonymous says:

            Nonsense. It was told by domestic court system. And it had to be done according to international agreements Cayman is part of. Cayman is not independent. There are rules to follow, whether you like it or not. Lawmakers should set an example, not ignore domestic court ruling. What do you think is going to happen when a daddy is ordered to pay child support but he ignores the court ruling because…because he us in his own house?

            • Anonymous says:

              Even independent, Cayman still has international and regional human rights too, probably commonwealth responsibilities too.

          • Anonymous says:

            And the gay Caymanians that can’t get married, they should just shut up too? I’m so sorry that your minuscule mind cannot comprehend that you are in the minority and you will always be in the minority as long as you think that other people loving another consenting adult is wrong.

          • Anonymous says:

            Go independent then and give your free vaccines to Africa who wld appreciate more than you.

          • Anonymous says:

            Wrong. Cayman is a British overseas territory… not an independent country. You cannot just choose to not follow basic internationally accepted human rights laws and segregate against certain people because of some Stone Age homophobic and quote frankly uneducated, disgusting hatred of people with a sexuality that differs to your inbreeding.

  9. Anonymous says:

    ‘The democratically elected Parliament here voted against the Civil Partnership Act because the people of the Cayman Islands did not support the rights of same-sex couples to some form of marriage equality’ and by that the democratically elected Parliament created Constitutional crisis, blatantly ignoring the ruling of the Court of Appeal.
    So this is what her motives are and reasons for JR? Some of them are really not getting a simple truth: it doesn’t matter what some people want or don’t want. Equality is provided to all in the Constitution. The legal remedy to human rights violations of LGBTQ couples should have been put in place years ago yet it was not done out of the lack of good will.

    • Anonymous says:

      LMAO Just look at the members of the so called ‘democratically’ elected Parliament and Speaker…

  10. Anonymous says:

    Although she has a right to her opinion, does she not have anything better to do than trying to infringe on other human beings rights! Go find something positive and useful to do. Tut, tut, tut.

    • Anonymous says:

      She is challenging the legality of the Governor’s actions – not the act its self.

      • Anonymous says:

        Why? Has she posted and questioned anything else besides this, as a ‘Christian’? Check out’itself’.

      • Anonymous says:

        I dare to assume she would not challenge the Governor’s actions if, just hypothetically, let’s assume, the Governor pushed through a law allowing Christian women to vote. That whole JR is homophobia driven. Prove me wrong.

        • H. says:

          I am homophobic. And I am proud to be. Don’t you dare touch my child. Learn to live with it, respect people, and there won’t be no issues 🙂

          • Anonymous says:

            Homophobia is a tricky thing. You may be hurting someone you love with this negativity. A lot of us are still in the closet because of this hate by default. Just have an unbiased look around : friends, family, coworkers. Sure you know someone LGBTQ.

          • Anonymous says:

            What the crap does your unfortunate child have to do with being gay? I’m telling you this now, they will leave you and they will not look back if you keep up the nonsense of this hatred in your mind towards another human being that did nothing wrong but love who they love.

          • Anonymous says:

            So,you have no issue with people being proud to be homophobic, or racist, or any other form of bullying, psychological or physical violence towards sections of society based on their demographic, beliefs or sexuality? You are a disgrace to these islands and should really be removed.

          • Anonymous says:

            And I guess you call yourself “Christian” too. Strange how that works. The God I know loves everyone equally. Love is love. You know who Jesus went after? The money changers in the church. I feel very sorry for you that you cannot see the value of love; no matter who it is between. Hopefully your child will grow up knowing and seeing this. By the way, 99.3% of all pedophiles are heterosexual not homosexual; do some studying and reading to educate yourself.

          • Christianophobic and proud says:

            I’m Christianophobic. It’s quite clearly an abomination to be Christian, and I keep my children at least one kilometre away from any priest. But don’t worry, I still love you Christians and I think you should be given 1/3 of the human rights offered to the rest of us. 🥰😌

          • Rodney Barnett IV says:

            H: You have every right to be Homophobic, but that is a choice. Not something you were born with, as LGBT people are. Bigotry is a learned trait.

            However, please understand that you, as a Homophobe could be subject to the whims of others to not be allowed to make medical decisions, financial decisions, estate issues, and a myriad of other legal issues. All at the whim of bureaucrats and elected officials.

          • Anonymous says:

            Proud to be stupid and ignorant. At least you admit it.

            “Don’t you dare touch my child”, what the hell is that all about???

  11. Anonymous says:

    The proceedings are not about the act itself.

    Its if re if the Governor acted ultra vires to impose the law over local courts. Thus – if he acted unconstitutionally.

    Of course if he acted ultra vires it would impact the rights of gay couples, that was literally the entire reason as to why he used his powers to enact the bill in the first place!!!

    • JTB says:

      If a law firm is an educational establishment, I see no reason why gay marriage can’t be external affairs.

      • Anonymous says:

        What I don’t understand, is it really so that a local court has the power to undo Governor’s action performed after UK has clearly instructed him to do, like in this particular case. Would really like to know. Isn’t there something in the Constitution that limits court powers in this instance?

  12. Anonymous says:

    So based on their lawyers submission, Ms. Anglin and the Christian Association For Civics would be fine if the law was introduced by an Order in Council by the UK Government but just not by our governor?
    What fricking difference does that make?
    Let people live and love. Try to do the same yourselves.

  13. Anonymous says:

    Imagine, having to defend the indefensible in 2021. I feel so sorry for Anglin and her ilk. What a waste of the short time we have on this planet.

    • Anonymous says:

      I don’t feel sorry for her or her ilk at all. She’s a grown woman and claims to be a Christian. I know many a Christian who ACTUALLY walk the walk and they have no problem with gay marriage. KARMA…just hope I’m around to witness it!

    • Anonymous says:

      Actually very defensible in the majority of the world.

      • Anonymous says:

        Minority actually

        • Anonymous says:

          Both China and India prohibit gay marriage and civil unions. That right there is a majority of the world. Add to that most of South Asia and Africa. LGBTQ+ is mostly a US, UK and EU thing. One might even conclude it was colonialist.

  14. Anonymous says:

    My bet is the following 7 seemingly inconsistent things are the reality. The Governor overstepped. The restraint on his powers was caused by McLaughlin’s “Constitutional Modernisation”. Gay people should be able to marry each other. Anglin is right. The Chief Justice was right. Our courts cannot and should not allow unconstitutional laws to stand. All officials of every rank are and must remain subservient to the rule of law.

    • Anonymous says:

      Part of the issue is who gets to make the rules of law.

      • Anonymous says:

        We do, through a process that resulted in a UK Order in Council called the Cayman Islands Constitution Order 2009.

        Those are the rules and is the framework against which all should be measured, no matter how inconvenient.

        • Anonymous says:

          We had nothing to do with it. This is entirely coming from outside.

          • Anonymous says:

            We drafted our constitution. We had a referendum and accepted it. We now try to ignore it. We are plainly incapable of anything approaching governing ourselves. This whole episode proves it.

            Thank God we can still have faith in our judiciary and our court system. Our civil service, not so much, and as for the majority of our politicians, not at all.

          • Anonymous says:

            Go independent!

          • Anonymous says:

            Are you seriously that dumb?

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