Court upholds Roper’s use of power on civil unions

| 29/03/2022 | 49 Comments

(CNS): Governor Martyn Roper did not act unlawfully when he used his power under section 81 of the Constitution to implement the Civil Partnership Act, the Grand Court has ruled. Justice Richard Williams presided over a judicial review last year that called the governor’s actions into question. However, in a judgment published Monday, the court found that Roper’s actions to provide a legal equivalence to marriage for same-sex couples were within his scope of responsibility because of the government’s breach of the European Convention on Human Rights (ECHR).

Following the disappointing news for the LGBT community earlier this month, when the Privy Council in London agreed with the Cayman Islands Court of Appeal against the chief justice’s original ruling legalising same-sex marriage here, this ruling at least secures rights for gay couples under the Civil Partnership Act, which was under threat by this legal action.

Around 50 couples have already used this law to register their relationships, which affords them legal protection in relation to health, finances and family life.

The judicial review of the governor’s use of section 81 to implement the Civil Partnership Act was applied for by Kattina Anglin, the leader of the Christian Association for Civics.

She argued that the issue of same-sex marriage or partnerships was a devolved one. Therefore, Roper could not use this section of the Constitution to impose the law and it would require an order-in-council directly from the UK.

But the governor claimed the continued breach of international treaties, as well as a directive from the appeal court that Cayman must provide some form of marriage equivalency for the LGBT community, meant that this section, which applies specifically to his areas of responsibility, was the correct mechanism to address the issue. In his ruling Justice Williams agreed with the governor.

Pointing to the evidence presented during the hearing last December, he wrote: “There could have been little doubt that, in such an extreme situation where the Court of Appeal had found that the ‘Legislative Assembly’ had failed to ‘face up to’ its legal obligations” under the Cayman Islands Bill of Rights and under the ECHR, and had “taken the extraordinary step of expressing its expectation” that the UK should act to address the “unsatisfactory state of affairs”, it followed that the action should be taken by the governor.

He said that when section 81 of the Constitution was read together with section 55, it provides the mechanism for the governor to act without resorting to an order-in-council.

“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 due to the long ongoing breach of the international obligation of the UK which otherwise would not have been adequately addressed by Parliament,” the judge stated.

Justice Williams said he was satisfied that, when reviewing the Constitution as a whole, the responsibility for compliance with the ECHR falls within external affairs and is a special responsibility. With the governor having ensured that the checks and balances were followed, the judge found that he was entitled to exercise his reserved power and enact the CPA.

By upholding the legality and constitutionality of the Civil Partnership Act, the Grand Court has saved the current government from a potentially embarrassing situation. This is especially true for the premier, who, despite his own open and clear support for the LGBT community, may have had to rely on the opposition benches to steer the law through Parliament, given the likely continued opposition of some members of his Cabinet and backbench.

See the judgment on the judicial website’s public register here, cause G169 of 2020.

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Category: Laws, Politics

Comments (49)

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  1. Okay, matter settled says:

    Now, Kattina Anglin and religious company: We all paid for you all to put our democracy and our judicial system to the test. There; matter done. Now sit down, live and let live. I don’t want to hear another peep from you all legally.

  2. Anonymous says:

    I am a very “happily divorced!” Native caymanian…never been happier in all my life as a single person….before covid…travelled every mt out of yr..can save money now…nobody to answer to except my maker and kids….so i honestly dont know why anyone would wanna do that again…but kudos to those that do…good luck!

  3. turn the page says:

    This case should never have been allowed in the first place. Despite claims that it wasn’t about religion, OF COURSE it was. How stupid do you think we are? Cayman, it’s time to turn the page: Enough with the gaybashing. Accept the fact that people are NOT all born alike. And that’s a good thing.

    • Anonymous says:

      No, enough with your perversion propaganda and pseudo-science. Leave Cayman alone and stop agitating for foolishness.

      • turn the page says:

        Spoken like a true bigot.

      • Anonymous says:

        How about you Christians go back to Europe? That Western religion doesn’t belong here 🥰😌

        • Beaumont Zodecloun says:

          This always happens; it is a genuine misnomer to pit religion against homosexuality. People like Anglin aren’t appointed representatives of Christianity, despite their sanctimonious attitudes.
          She appears to want to use Levitical Code to oppose the laws of the Cayman Islands, however why does she and others like her only use one small part of Leviticus? Why doesn’t she honour ALL of it, if it is God’s law to us?

          Leviticus was handed down to Moses by Yahweh, primarily rules for the Levite Priests. Bigotry, however, is born in the hearts of human beings.

          I sometimes think when people attack religion in the name of LGBT, that they are trolling, to create this very divide, which doesn’t really exist.

          Religion is a private and personal thing — your relationship with God, or absence of it. Bigotry is a personal thing, not ordained by God.

  4. Anonymous says:

    Well done GOV!!! Kattina go sit down now and use your free time to do something useful like helping abused kids and animals. God would approve!!!

  5. Anonymous says:

    Well is the weed free up next govvy govvy?

    • Beaumont Zodecloun says:

      Did us all a disservice there mate, by associating legalisation of ganja with dissing the Governor. Bad form.

    • Anonymous says:

      Cayman Cannabis Referendum is coming, unless Parliament acts quicker — this is compliant with international laws (e.g., UN drug conventions, etc).

      • Anonymous says:

        Also compatible with privacy rights (pursuant to article 8 of the European Convention on Human Rights and section 9 of Cayman’s Bill of Rights).

  6. Candid says:

    It was always a difficult case for Kattina. But again the judge got it right. Let us all move on. Same-sex partnerships are here to stay. Also, very interesting that legal aid was granted for this and yet beach access people have struggled to get legal aid in the past.

  7. Anonymous says:

    What’s next, Kattina? What else can you waste the country’s money on?

    • Anonymous says:

      Ban divorce maybe ? or maybe those who wear mixed fabric? They should be excluded from out society 😌

    • Anonymous says:

      She’s wasting our cash just as much as any CIG department. Might as well give her a ministry. Barf.

  8. Anonymous says:

    Unfortunately, Ms Anglin may now find herself forever on the wrong side of history. Her technical arguments concerning the use of Section 81 has always been overshadowed by the optics of being a bitter person opposing equivalent rights for law-abiding citizens.

    • Anonymous says:

      Absolutely not, judicial reviews are a part of the democracy we live in. She is well entitled to bring it. I do not agree with her, but she had every right to do it, as do you.

      • Anonymous says:

        In life, just because you have the choice to do something, it doesn’t necessarily mean that you need to.

        • Anonymous says:

          But it still remains a right, stop trying to introduce counter arguments to some thing that doesn’t exist jeez!

      • Anonymous says:

        Sometimes its better to just let things go. I don’t go and challenge anyone playing live music on a Sunday for that reason.

      • Anonymous says:

        I agree it is her right to challenge the use of Section 81. However, that is not how she will be remembered.

    • Fret says:

      Technical legal arguments are often the last resort of bitter people opposing equivalent rights for law-abiding citizens.

  9. Anonymous says:

    After having read this case, I have to say that Hon. Justice Williams delivered a well-reasoned landmark judgment of the Grand Court.

    Overall, it appears, that legal issues were dealt with where no persons, who have made use of the Civil Partnerships Act, are at risk of threat of losing their legal rights under said legislation.

    The case is very rich in dicta which, I am certain, many lawyers are already plotting how to make use of to benefit their clients.

  10. Anonymous says:

    I hope this now satisfies everyone and puts an end to this issue. No marriage but you can have a CP! Seems like a fair compromise!

    • Beaumont Zodecloun says:

      It’s a halfway measure. It is not equality. All people should be equal in the eyes of the law. That’s what equality means.

      • Anonymous says:

        Equality of outcome is the same, stop trying to split hairs. The gays have what they wanted and only 50 couples have used it. Time to just shut up about this, plenty of bigger problems to solve.

        • Anonymous says:

          “the gays”. oh dear god.

        • Beaumont Zodecloun says:

          Do “the gays” have what they wanted? LGBT wanted the same rights as you and me. No more, no less and certainly not “custom rights”. SAME. That is equality.

          • Anonymous says:

            Proportional comes to mind. LGBT community is still a minority in numbers so the solution seems reasonable and proportional

            • Beaumont Zodecloun says:

              I got you. So, the majority of a demographic get the “best” laws, and the lesser, “less favorable laws” and so on. So when there are a few thousand more that come forward throughout the generations, then and only then they will have the numbers to reach true equality? Does that sound right to you?

              You are still treating LGBT as “other”. They are of us and are us. Secondly, “majority rules” is the antithesis of equality.

        • Anonymous says:

          ‘The Gays’…..words actually fail me. What an imbecile you truly are.

        • Anonymous says:

          So how many couples would be a good number for you? Some of us have been waiting for the outcome of this JR, including my partner and me. You can solve your bigger problems without undermining problems of others. Go ahead.

    • Anonymous says:

      It’s not equality. Imagine having to call your significant other of 40+ years your “civil partner” instead of your “spouse” because of some silly god fanatics being upset about your entire existence ?

  11. Anonymous says:

    I still do not understand how this falls under the Governor’s powers.

    In any case, I believe that the court had to find a way for the civil partnership bill to stick in light of the ruling against same-sex marriage. There is no way PACT would get the Civil Partnership Act through parliament.

  12. Anonymous says:

    Oh happy day !!! This is so delicious, it must be fattening. Thank God !!!

  13. JTB says:

    I’m sure our loving, compassionate, Christian brethren will find the means to take this on to appeal.

    Because when two people who love each other make a binding and public commitment to each other, Baby Jesus cries ….

    • Anonymous says:

      Well that seems to be the most important and triggering subject for a big lot of them to worry about and occupy their busy minds. They also seem to have too much time and resources to waste, so it wouldn’t come as a surprise. At the end of the day, God must be worried with what my partner and I do, rather than doing something constructive to stop horrors of hundreds of years of slavery. For example. But of course. Two loving gay guys is a no-no in a bigoted mind.

  14. Anonymous says:

    This is the territorial civics lesson that many primary school students were expecting: the Governor is the last stop in ensuring good governance in the Cayman Islands. Let’s hope one won’t need to step in again. On that note, time to move our focus back again to the unfortunate topic of the Speaker of the House, a recurring character in everything stinky.

  15. Anonymous says:

    I really hope we can put this to rest so everyone can have some form of certainty now.

    Changing the definition of marriage requires amendment of the Constitution – unlikely to happen but perhaps the Premier will do it.

    BUT Civil Partnership are legal, legitimate and provide the rights and freedoms sought after by same sex couples.

    If there are 50 couples already with civil partnerships in Cayman and the world did not end its clearly not bothering anyone’s life so lets please move on.

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