Gov’t breach of rights ‘unsatisfactory’
(CNS): No matter what the Cayman Islands Court of Appeal decides about the chief justice’s decision to amend the law to introduce same-sex marriage, the appeal court president has made it clear that government’s failure to provide a mechanism to recognise same-sex relationships in law is “unsatisfactory”. Sir John Goldring, the justice leading the panel which heard government’s appeal against that judgement, said the parties must agree a declaration to remedy that issue regardless of their final decision.
“It is unsatisfactory for the admitted breach to continue for as long as it has,” Justice Goldring said Thursday at the end of the proceedings, following a day of detailed submissions by Edward Fitzgerald QC.
Fitzgerald is representing Chantelle Day and Vickie Bodden, who made the original application to the Grand Court after they were refused a licence by the General Registry to marry on the grounds that they are a same-sex couple.
With government largely conceding that Day and Bodden’s human rights have been breached, the argument now centres on whether or not the Cayman Islands Constitution provides a window for same-sex marriage and whether the chief justice had the power to modify the Marriage Law when he legalised same-sex marriage, or whether he should have pushed the decision back to the parliament.
Despite the narrowed points, both Fitzgerald and Dinah Rose QC, who represented the government, each spent a day arguing their position before the appeal judges.
Fitzgerald argued that Chief Justice Anthony Smellie got it right and he did have the power to change the law as he did. He further argued that both the governor, who was one of the respondents on the original action, and the Foreign and Commonwealth Office had accepted the chief justice’s ruling.
Fitzgerald said that from the very beginning, long before the couple sought remedy with the court, Day, who is a Caymanian, had asked the government to provide a legal framework to allow her to settle with her fiancée and adopted daughter in her native country.
But at no time did the government make any move to accommodate the request. They gave no indication of plans or proposals that would pave the way for same-sex civil unions or legal partnerships, and the premier never even responded to Day’s letters. This failure of government to introduce an option to recognise same-sex relationships has meant that the country has been in breach of the European Convention on Human Rights for four years and has directly breached Day’s right to a family life.
Fitzgerald told the appeal court that his clients were in a legal no man’s land, with Bodden having no rights to remain here outside of the current court order, which she has as a result of the case, and the government considers Day a complete stranger to her adopted daughter. He described their situation as a legislative wilderness, where they faced a continued denial of basic human rights and freedom of movement.
The lawyer argued that there was no reason to believe that the government would ever address the lack of provision for same-sex unions and it could “go on forever”, as he noted that the government, through its legal representation, had still not been able to address that question.
He noted that this failing and continue reluctance had also fuelled the chief justice’s decision to change the Marriage Law, rather than rely on the legislature to get around to dealing with the breaches of the women’s human rights.
Fitzgerald contended that the chief justice had not “overstepped his judicial authority”, and that by changing the Marriage Law he had “met his constitutional responsibility”. He said the court had considerable powers of modification, which he used to bring the law into comparability, which was supported by a swathe of authorities and case law.
With the submissions from both the government and the couple completed, the appeal court gave the parties until next week to address the court’s concerns about the declaration. Although Rose was pressed several times about the government’s position on the breach, she was unable to give a position and said she needed time to take instructions.
The government, however, has continued to oppose creating a provision for civil unions, and although it has had to accept the legal breach, it appears reluctant to accept that it must address it. While Day and Bodden are now seeking the legal right to marry, they had initially been more than willing to accept a civil union that would recognise their relationship and provide the usual financial, health and other rights afforded to married couples.
The court ordered the government to spell out how it would do that and submit the declaration to them before the end of this appeal session. However, there was no indication when the judges might deliver their ruling on the substantive part of the appeal.
Category: Local News
Yesterday, on Saturday August 31, Bermuda had its first-ever Gay Pride Parade. Yes, ultra-bigoted Bermuda. And even more shocking, the country survived it. According to newspaper accounts, five thousand people turned out to support the event — and virtually no dissenters showed up, despite Bermuda’s long, shameful history of homophobia. Rest assured, homophobia is still very much alive: Bermuda is only slightly ahead of Cayman in the same-sex-marriage fight. They’re about to duke it out at the Privy Council level, whereas Cayman is still at the Appeals level. The political rulers of Bermuda are every bit as mean and nasty toward gays as the political rulers here. But judging from the tremendous support for Bermuda’s Pride parade, it’s clear that a huge swath of people get it: The age of bigotry must end — and soon. With the inevitable outcome of the court rulings, equality is around the corner for both Bermuda and Cayman. We will ALL be better off for it — even the naysayers, although this is still hard for them to understand.
Oppos the was Bermuda not Bahamas
my next question is, why does the constitution allow the chief justice to advise government on legal mattrrs? prior to going to court?
We all need to stop framing this controversy as Christians v. Fair-minded people. Many millions of Christians worldwide, including a significant number in Cayman, are not anti-gay or opposed to same-sex marriages.
This is about the non-thinking fundamentalists. It is the divine babblers and faith healer types who are the problem. They are sheep with deactivated neocortexes. They have surrendered their minds to the hate mongers and imbeciles who stand in their church pulpits. Many Christians care about the happiness of their neighbors, understand that the Bible contains many bad ideas best left behind, and are fully capable of understanding and appreciating the concept of fairness.
An effective way to counter these tragic and strange people who worry so much about other people’s sex lives is to elevate the voices of morally advanced Christians.
#lame
It would be great, and very Christian, if some of the fair-minded church leaders on the island would step forward in support of these two women.Sitting back and doing nothing when people are being persecuted is not what I would expect from a true religious leader.
You will wait til hell freezes over if you expect a reply from the Hon Premier or the vast majority of govt entities on matters of public importance.
I might be over simplifying this but it is my understanding that “Gods Gestapo” does not want the term marriage to apply to LGBT unions because it is defined under Cayman law as being between a man and a woman. Would it not be easy just to change the definition as being between two people and then everyone should be happy. Devout Christians could then come up with a new term for a union between two devoutly christian people (of opposite sex of course). This way everyone would have equal recognition under the law and Christians could still show they are better than the rest of us by having a new type of union endorsed by God. I am struggling to come up with a name for this ‘better than you marriage” but I think it could work. Obviously a new term would also have to be devised for divorce as we would clearly need a way to show christian divorces would be seen by God as better than a regular divorce.
I was going to quip that “it would never work, because it makes too much sense,” but the truth is you really stuck your landing.
It’s the perfectly equitable solution for everyone; nobody gets hurt, nobody has to concede ground, and the various churches can maintain their high ground of judgmental admission.
Just checking on this:
“Would it not be easy just to change the definition as being between two people and then everyone should be happy. Devout Christians could then come up with a new term for a union between two devoutly christian people (of opposite sex of course).”
My understanding of the above is that Christians should change the definition that has always been known and makes them happy for centuries, crushing their happiness in their religious observation, so that the LGBT can be happy?
You really see this as a fair solution???
And honestly, it’s time to stop the name calling. It’s hateful.
Do a quick google search on the history of marriage and you will see it pre-dates Christianity and has in the past allowed same sex marriages. The term was only relatively recently hijacked by the church who imposed its own stringent and discriminatory definition. Actually in the past some of the less oppressive religions have allowed gay marriage, With regard to your statement about hateful; do you not consider that preventing two people who love each other and want to commit to each other in the eyes of the law as being a little hateful? I do respect true Christians who follow their beliefs and do not oppress others with rules that they think should apply to all. Those that are part of this hateful campaign against these two women deserve to be ridiculed.
Many (and I would wager most) are 100% in favor of UK Orders in Council on important civil issues like Marriage Rights Equality and governance issues like the ongoing failure to enact Standards in Public Life – especially when our entire Legislature breach decorum, are incapable of understanding the Nolan Principles they are bound by, and/or fail to do the right thing or adhere to Constitution. We are counting on the Governor and FCO to take responsible, immediate, and vocal action, as the entrusted and supervising grownups in the room. That is why this mechanism exists, and why the postings (at our considerable expense) are supposed to be more than just ceremonial retirement gigs.
Had CIG just given them a union we would have avoided all of this drama. The CJ saw the injustice performed by government and did what he had to do to make things right.
Of course MLAs slept on the issue. Which running candidate wants to lose out on those lovely church wotes? Christians need to learn to accept that our constitution provides the right to being an Atheist.
I have no problems with them worshipping in peace at church but when they tell me I’m going to burn forever if I don’t CONVERT to their diety, really and truly,
WHO IS FORCING A LIFESTYLE HERE?
To force the population to accept gay rights when they are not really rights ?! Really?
And you like to pick on Christians. Which churches in Cayman you know are forcing their lifestyle on people, or inciting violence on gays? Please list them.
You remind me of the whites who complained when they learned blacks would now be able to sit up front on the bus. Yea sitting on a bus is trivial and can be argued that “that’s not a right” but it’s the principle.
Don’t confuse being black with being gay
No one is forcing a lifestyle on anyone, but if I were about to drive off a cliff I would like a sign posted if not a shout heard by those who are aware.
Serve whichever God you choose – God does not mandate that you serve Him. He’s allows freedom of choice, but the warning sign is that every choice has a consequence which you choose: punishment or reward.
Truth is the cliff isn’t real and it’s all in your imagination
I see the road ahead. The carrot on the stick is a dead man’s promise to live forever in paradise, but they tell no tales so I don’t chase it like you.
They never asked for a Union (Which is not possible in the marriage law) They asked or a marriage !
This whole same sex marriage debate is not about same sex marriage , its about SEX , men love the idea of two women , hate the idea of two men , or women with a penis lol . Get the nasty out of your heads for crying out loud , hell half of the people whining would get my vote IF they show me their internet search history . Booya .
One love, I hope we can get a statue of these ladies in front of the LA after the win for love.
Wow! That’s alot of rhetoric and do you folks always have to call Christians hateful names every time you speak about them? Come on! You can do better than that – you’re an adult now, put childish babe calling aside!
Most ‘Christians’ in Cayman are the most hateful, divisive and hypocritical people I have ever met. After politicians that is.
Question to the LGBT:
How can you make sexual behavior a constitutional human right for ALL TO APPROVE AND ACCEPT ???
That is not a right for ALL !
It will cause decent people to be persecuted and infringe on the fundamentals rights that hold together democracies.
CNS: You’ve lost all sense of reality. You will not have to approve or accept any form of civil union. That’s not how democracy works. Even though it won’t affect you in any way, you will be free to disapprove of it just as you do now. You just won’t be able to impose your bigotry on others so that they are unable to enjoy the same rights that you have.
Countries that recognise same-sex marriage include: Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Denmark, Ecuador, Finland, France, Germany, Greenland, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Taiwan, the United Kingdom, the United States and Uruguay.
Cns its obvious that you may be lgbtq. Its sad that you have to jump in and defend it, rather than just be quiet as you run a news service.
CNS: We are against racism, so we are obviously black. We are against antisemitism and Islamophobia, so we are obviously both Jewish and Muslim. “Just be quiet” smacks of misogyny. We’re against that too.
The truth is that to stand up against prejudice you just have to be a decent person and dislike bullies. Saying that someone must be LGBT because they support equality is often used to try to intimidate people like us who support them. The impetus is unpleasant, however since for decent people it is not a slur, it really just leaves you looking ridiculous.
Round of applause, CNS. Great comment
Bravo CNS! Great response.
Thumbs up on both previous comments and yours in support of CNS’s editorial right to oppose racism, bigotry and inequality.
I frequently disagree with their editorials, but always support their right to speak their minds, especially since they so kindly provide this forum for us to do the same.
Thumbs up for CNS, thumbs down for the original poster clown.
Out of 160 to 170 countries, the Justice system of only 20 to 30 countries “approve” of gay rights. I think Cayman is in good company if they don’t change their laws for the gay lobby.
CNS: I think my head just exploded. No, you are not in good company. There is a clear correlation between progressive democracies versus backward, undemocratic and autocratic countries and recognition of same-sex unions.
lol .i can see where this is leading. So the U.S., Canada, UK, and Australia, are good systems of government. They are never backward. Despite many in these same countries are being fined or prosecuted for socalled discrimination laws as we speak.
CNS: I have no idea where you’re going. No country is perfect, most countries are very far from it, but democracies are better than the alternatives, as Winston Churchill famously noted.
CNS, this person just meant that we are in good company with all the other third world, banana republics.
Thumbs down to the SMH poster, what a stupid! comment. Glad you tried to put some sense into this poster’s head…well you try at least with these types of thoughts that people spew.
And look at all those countries you mentioned…..all falling apart!
Christianity: Smothering minds and fueling bigotry for two thousand years.
#lame
Bigotry is hating someone because of an opposing view. Please be respectful to others belief systems.
I do not have to be respectful to racists, anti semites, or homophobes.
That also applies to those hating and bad talking Christians, i
I am always respectful of others and their belief systems—right up to the point that it obviously harms them or other people.
If religious people would keep their delusions to themselves, or at least be less aggressive in pushing it on others, there would be no problem.
#lame
What about your “born this way” myth you manage to lobby and convince the courts to craft laws, recognizing yourselves as a minority. … Hello! Cns, can’t even provide us with scientific evidence that it is a proven fact. Its a belief or shall I say an LGBT religious belief that are corrupting our courts and young minds. Yet you are so quick to point the finger at Godfearing people and their beliefs. Incredible!
CNS: Science Magazine (see link here): Twin studies and other analyses of inheritance of sexual orientation in humans has indicated that same-sex sexual behavior has a genetic component.
This is written by a gay journalist in the UK: “Believing that LGBTQ people choose their sexuality belongs in the same bin as flat-Earthism and climate emergency denial. All LGBTQ people grow up in homophobic societies, whether that bigotry is imposed by coercive social attitudes or by the state. Almost all of us endure agonising periods marked by fear and shame, and struggled to come out to ourselves, let alone our family, friends and society: the idea we opted out of heterosexuality for a bit of a laugh is clearly fantasy.”
Let’s see the scientific facts that your God exists. Assuming he does exist doesn’t your good book say that he created everything? If so, you shouldn’t be questioning his decisions to create LGBTQ people whether by birth or otherwise.
Marriage predates Christianity by tens of thousands of years.
https://www.alrc.gov.au/publications/12.%20Aboriginal%20Marriages%20and%20Family%20Structures/marriage-traditional-aboriginal-societie
But you can’t iron that into the heads of those who think evolution is a lie, fossils are a joke, and the sky fairy snapped his finger to put us here just 6000 years ago.
Very simply, it MUST be “marriage”, not “civil unions”. Anything less is “separate but equal” — which is always separate and never equal. Without any doubt, the purpose of “separate but equal” is to wink and nod that, yes, we’re giving these people SOME rights, but we’re not about to consider them equal to the rest of us. Look at America’s experience with “separate but equal”. It was a disaster. Blacks refused to put up with it — and they were right to refuse. Also, QC Fitzgerald is absolutely right that, left to themselves, the Cayman governmet has NO INTENTION WHATSOEVER of passing EITHER marriage or civil unions. They would wait for hell to freeze over before they would lift a finger. Therefore, it’s incumbent on the court to do the right thing: mandate same-sex MARRIAGE immediately and put an end to the discrimination.
8:04am
Do you understand that many of us that have been forced throughout our history to use “marriage” actually wanted a “civil union” instead?
We are heterosexual couples.
We fully understand the discrimination imposed by our historic access only to “marriage”.
We want choice, which we are hoping for, soon.
We would then be happy to live and love and let others do the same, peace out 🏳️🌈
8:04am
I want choice.
Give us the option.
I’m a man that “married” a woman, we have children.
We wanted a civil union but we were discriminated against and had to do marriage.
You weren’t discriminated against! There’s no law for unions!
But if you can have a child together, why can’t you get married and give the child a stable foundation and future? Is it just about adult choices or does the well being of children be calculated into our decisions at some point?
Statistics on marriage show that children fare best in a heterosexual marriage. I hope your decision to marry and remain married is proven in your child’s best interest.
Statistics you just pulled out of your ass. Try this: https://www.theguardian.com/australia-news/2017/oct/23/children-raised-by-same-sex-parents-do-as-well-as-their-peers-study-shows
If the original poster is talking about the UK they were discriminated against. Civil partnerships were only available to same sex couples. Supreme Court ruled last year that was discriminatory.
Well said and the time is surely “now”. Thank goodness for the stable, intelligent and correct guidance of the UK in many things concerning the Cayman Islands. Otherwise, we could end up just like many of those other Caribbean islands full of crime and poverty! In this issue, the constitution clearly gives equal rights to each citizen and the separation of church and state MUST be clearly maintained.
Unfortunately, there is NO separation of church and state in Cayman. But it is something that is desperately needed if justice is to prevail and corruption to be curtailed.
Give MILLION$ to specific Christian churches when our constitution allows me to be a Caymanian Buddhist.
then they congregate at Fort St. to shout that there’s no need to fight for equality in Cayman!
i am a native caymanian male and neutral on the issue….but i still belive in seperation of powers…judiciary…..legislative and executive…laws should not be changed from the judiciary!!
They aren’t! The legality of and interpretation of the legislation is determined by the courts. If you don’t like the outcome charge your politicians with passing better legislation.
Our great Premier will get this resolved!
Really….the great Premier never even bothered to reply to the couple who originally requested a civil union statutory provision. The issue has been forced by the Court of Appeal and within the next week, the CIG MUST inform Sir John Goldring how and when it intends to resolve the discriminatory breach of the ECHR, by not permitting – at the very least – civil union between same sex couples.
Hundred’s of thousands of dollars from the public purse wasted, all because the majority of MLAs were scared of losing votes from an ignorant sector of religious hypocrites, who believe that their great GOD is on their side of the argument: ridiculous, out-dated nonsense!!
The Premier didnt need to reply to them. The couple is under the same terms of the Constitution just like everybody else.
Thank you. That is all that the couple in question want. It is all they have ever wanted……… to be legally bound by the “same terms of the Constitution just like everybody else.”
I love every word of this post! The best part is “losing votes” and that the “great God is on their side”. As far as I can tell God is on the side of all living things since it was created by Him.
Superb comedy post
Well having read this article and the narrowed points and the statement from Sir John Goldring I think the Court of Appeal will say that the Chief Justice did not have the power as he exercised it, and should have reverted the matter to parliament.
I wonder what effect the President thinks a mutual declaration will make? That’s farcical because a declaration to a Court does not have the power of any law. I could promise any Court anything.
Yes, I am psychic and I will say that the Crown’s Appeal will be allowed very soon and this is headed to the Privy Council. I am sorry for these ladies.
That’s my take as well. The appeals court appears to be leaning in favour of the Government and provided the government could commit to a civil union remedy, that’s how this will play out.
Potentially.
I think the CIG is in a bind. They are clearly, and admittedly, in breach of human rights. I suspect Ms Rose QC had to pointedly wake them up to this, but given they have no idea how to breach they are probably still in denial and reluctant to make any changes.
The Court is saying “what are you going to do to remedy your unlawful position?” The Court does appear willing to consider stopping short of saying you have to offer full marriage rights but only if they remedy this properly and now.
However I suspect unless the CIG gives something that is marriage rights in all but name and immediately, then the Court will uphold the judgement that the government is breaching human rights and allowing marriage seems a reasonable remedy.
It may not ultimately be headed for a full win for the ladies and the LGBT community, but it is headed for a complete loss and waste of money for the government given their pre-existing entrenched position about denying any rights for LGBT relationships..
Exactly. CIG is backed into a corner.
That would be a disaster. Civil Unions is the same thing as Same-Sex marriage. You are supporting that they should have equal rights.
Administrative law attorney here agreeing with both of you.
I was in court today and I heard arguments that strongly rebutted the misinterpretations of Mr Fitzgerald on cases by which the CJ arrived at his ruling, nothing of which has been presented here.
With Cayman 27 gone we will be trapped and manipulated even further by biased lobbying such as this.
Not a single Caymanian on the “Cayman Court of Appeals.” You can’t really expect anyone to be on the Privy Council, but how does your own local court get staffed like this?
Wait til WORC gets going!.
Kirky for Appeals Court judge!
Anthony Smellie will most likely get appointed to the Court of Appeal when he retires as Chief Justice – I don’t know whether you’d consider him sufficiently Caymanian given his many years of service?
It’s not really surprising that, being a tiny island with a very small pool of lawyers to choose from, we don’t have any Caymanians at the necessary level. We could of course gerrymander some local hack in for political reasons, if we don’t mind trashing Cayman’s reputation as a centre of legal excellence and frightening away our financial services industry, of course.
None is none. Excuses, excuses. If I were Caymanian, I would be put out by this.
The fact that we have a population of less than 40000 Caymanians and an education system that struggles to produce kids who are literate may be a slight obstacle. Before getting upset about the lack of appeals court judges start with wondering about the number of born Caymanian judges. If we can’t stick the first instance bench why are you surprised we don’t have judges on the appeal bench?
Prejudice. There are a few Caymanians with the intellectual chops for appeal work. David Ritch for one.
David’s a good attorney, but he never appears as an advocate in the Grand Court, which is kind of a necessary first step on the judicial ladder.
I practise law in Jamaica I would be much happier with a foreign set of judges than local ones. For about a million reasons but mostly because the foreign judges will have no local bias and hardly any vested interests.
They did not go to school with all the lawyers and are not super chummy with the Managing Partner of any big firms. They are also not almost exclusively chosen from the public sector, which produces the most narrow-minded and sheltered set of judges you can imagine.
Our useless Bar Association will never voice these concerns (and neither will I in public) but this is the reason lawyers like me will forever be grateful that we are still allowed to make appeals to the Privy Council.
You have a point, but these judges are human and come out of the same pot as all those QC’s that argue before them. Their biases are just different than yours ( or maybe not.)
Name me one BORN Caymanian or even Paper Lawyer with 30 to 40 years experience … den I gonna nominate him fah da bench bobo
David Ritch. Qualified in 1976 and practised litigation for 15 years. Still a brilliant man well suited to sorting good arguments from bad. Still working.
Wayne Panton, Sara Collins, and Theresa Pitcairn are all persons with the intellect, core training and temperament required to be good Judges.
God will prevail.
Yes he will. For equality and dignity for all of his people, which includes the LGBT community. God is not hateful like you.
Which one?
CIG knows full well this is a breach of the rights of these ladies….Sad!
Good luck ladies!
Fight on girls this government is small minded and pathetic.
Standards in public life before anything else please. Without that we cannot move forward in cleansing corruptive practices and nepotism.
Who would ever thumbs down that comment?!
6.23am To answer your question this response just show how many corrupt and nepotistic individuals we have in Cayman.
All the current and previous corrupt individuals that have lots to lose.
The suppression of Civil Rights and much delayed enactment basic Good Governance are related. Both ought to have been the subjects of Orders in Council years ago for different reasons, with the common denominator being the same revolving morally-bankrupt self-serving lineup in the LA, that can’t seem to do the right thing. Good luck ladies!
People scared of what enacting the SIPL will do to their savings accounts and ‘persuasive powers.
SIPL is a huge over reach!
Disclosing possible immediate family conflicts (doesn’t mean they don’t exist) is a first step towards basic good governance. The Law is much revised to diminish scope, restrict access, AND part of a Constitutional requirement for all senior civil SERVANTS. We all know there are hands in the cookie jars, and it needs to become less blatant if we want to retain passing grades with OECD/FATF and other regular governance reviews. It’s never overreach to bust someone actively screwing the public and/or secretly benefiting on a deal outcome. Those people need to be banned from office and/or put in jail.
The government acts in breach of multiple laws, and the constitution, on a daily basis. They get away with it because no one holds them accountable. Day and Bodden are changing that. They are true heroes.
According to the bible thumping idiots that assembled on fort st to protest two consenting adults rather than child abuse, Day and Bodden have an agenda to also introduce pedophilia and multiple partners.
TWO. CONSENTING. ADULTS.. no one is forcing you to change your sexual orientation. Don’t want to be gay? Don’t. Holding hands? Really? Is that your concern? When was the last time you saw a couple sucking tongue by fosters?
Stop comparing apples to oranges. Because we allow people to do 50 mph, doesn’t mean we should go all out and allow 150 mph.
Because humans are allowed to eat meat, doesn’t mean they will eventually become cannibals.
Just because you’re vegan, you have no right to tell me I can’t go to KFC.
Our constitution allows Caymanians to follow or leave any religion they want – that’s a right. The argument based on religious heritage was blown out the water when we allowed freedom of conscience.
btw I’m married. by all means if they want the misery, tek some ah mine while you at it.
one love ladies.
There are many, many other religions and countries that do not accept lesbian and gay marriages. Cayman is not unique on that or wrong for ignoring it in its laws. Marriage is between a man and a woman in the Cayman Islands. That is a fact.