Same-sex marriage in the Cayman Islands

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Legal status of same-sex unions
Marriage
Performed
Recognized

Notes

  1. Performed in 15 states and Mexico City, and recognized by all states in such cases
  2. Performed in the Netherlands proper, including Bonaire, Sint Eustatius and Saba. May be registered in Aruba, Curaçao and Sint Maarten in such cases.
  3. Neither performed nor recognized in Niue, Tokelau or the Cook Islands
  4. Neither performed nor recognized in Northern Ireland, the dependency of Sark and the 5 Caribbean overseas territories.
  5. Neither performed nor recognized in American Samoa or some tribal jurisdictions
  6. Theoretical: no actual cases known
  7. Limited to residency rights for foreign spouses of citizens (EU) or of legal residents (China)

* Not yet in effect, but automatic deadline set by judicial body for same-sex marriage to become legal

LGBT portal

Same-sex marriage is not currently recognised in the Cayman Islands. The island's statutory law defines marriage as between one man and one woman. A lawsuit before the Grand Court successfully challenged this ban in March 2019, however, the Government appealed the decision to the Court of Appeal, and the ruling was stayed.

History[edit]

In 2006, the Cayman "People for Referendum" activist group began protesting against LGBT rights and same-sex marriage, after the Dutch High Court ruled Aruba had to recognise same-sex marriages registered in the Netherlands. The "People for Referendum" criticised the judgement, claiming that the British Foreign and Commonwealth Office (FCO) could force legal recognition of same-sex marriages in the Cayman Islands.[1]

Homosexuality laws in Central America and the Caribbean Islands.
  Same-sex marriage
  Other type of partnership
  Unregistered cohabitation
  Foreign same-sex marriages recognized
  No recognition of same-sex couples
  Constitution limits marriage to opposite-sex couples
  Same-sex sexual activity illegal but not enforced
  Same-sex sexual activity illegal only for males
  Same-sex sexual activity illegal for males and females

The new Constitution, approved in June 2009, notes that the Government "shall respect" the right of every unmarried man and women of marriageable age as defined by law, freely to marry a person of the opposite sex and to found a family. The Constitution does not, however, explicitly define the term "marriage" and nor does it explicitly prohibit same-sex marriage.[2]

In August 2015, in light of Oliari and Others v Italy, a case in which the European Court of Human Rights (ECHR) ruled that it is discriminatory to provide no recognition to same-sex couples, the Legislative Assembly unanimously (save for four abstentions) reaffirmed its same-sex marriage ban. The ECHR has jurisprudence over the Cayman Islands.[3]

In 2015, the Premier of the Cayman Islands, Alden McLaughlin, indicated that his Government was examining the immigration law and regulations to find a way to allow same-sex couples who are legally married in other jurisdictions the right to have their spouses recognised as dependants.[4]

In July 2016, the island's Immigration Appeals Tribunal ruled in favour of a gay man who wished to be added to his spouse's work permit as a dependent. The two men's application was made 14 months prior to the ruling and was rejected by the authorities; they subsequently filed a lawsuit. A July 2016 ruling by the European Court of Human Rights had significant implications for the lawsuit. The ECHR found that a refusal to grant a residence permit to a same-sex couple in Italy on family grounds was unjustified discrimination.[4][5][6] Despite this ruling, the immigration authorities later refused to grant dependency rights to two other dual Caymanian same-sex couples. The two couples were forced to leave the Cayman Islands, despite one partner being Caymanian.[7] In December 2017, Colours Cayman, an LGBT group, raised these concerns with the European Union in hopes it would address this inequality.

On 6 October 2016, the Legislative Assembly of the Cayman Islands voted against a proposal to hold a referendum on whether the territory should legalise same-sex marriage. The proposal was voted down 9-8. 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 dependent on his partner's permit. Premier Alden McLaughlin expressed his opposition to the referendum proposal.[8] 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.[9][2] Shortly after taking office, Governor Anwar Choudhury announced his support for civil unions.[10]

Lawsuit[edit]

In April 2018, a dual Caymanian-British same-sex couple, Chantelle Day and Vickie Bodden, revealed their intention to file a lawsuit challenging the Cayman Islands' statutory same-sex marriage ban, after their application to marry was rejected by the island's Civil Registry.[11] The couple formally filed suit with the Grand Court on 20 June 2018, arguing that the section of Cayman's Marriage Law, which defines marriage as between "one man and one woman", is incompatible with various rights guaranteed under the Constitution.[12][13][12]

Oral arguments in the case were heard by the court, specifically Chief Justice Anthony Smellie, in February 2019.[14][15] During the arguments, lawyers representing the Government admitted that there was a persuasive case, under the Constitution, for same-sex couples to have a right to a civil union or domestic partnership scheme, though they argued that the creation of such a scheme should be left to legislators.[16] The case was successful, with same-sex marriage legalised on 29 March 2019.[17] Justice Smellie held that preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman's Constitution, including the right to a private and family life. He used his judicial powers to rewrite the island's 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."[18]

The ruling went into effect immediately and did not require ratification by the Legislative Assembly or the Governor.[18] On 3 April 2019, Premier Alden McLaughlin announced that the Government will appeal the decision.[19][20] The ruling was met with dismay by the Assembly, which unanimously passed a motion expressing disagreement with the ruling and commending the Government's decision to appeal. Assembly members vociferously objected to the ruling, with Representative Anthony Eden decrying "what is the difference between the Cayman Islands and Sodom and Gomorrah?" and Education Minister Juliana O'Connor-Connolly inviting members of the public to object to and disrupt the petitioners' marriage, saying "attend the marriage...[and] make sure you object" in person.[21] On 10 April, the Court of Appeal granted the Government's motion to stay the ruling. The appeal will be heard in August 2019.[22][23] Legal experts widely consider the appeal "doomed to fail".[24]

See also[edit]

References[edit]

  1. ^ Gay Life in Cayman Islands
  2. ^ a b "The Cayman Islands Constitution Order 2009, Section 14, 'Marriage'" (PDF). Cayman Constitution. Retrieved 20 May 2016.
  3. ^ Cayman Islands reaffirms ban on gay marriage in wake of European court verdict (Gay Star News)
  4. ^ a b European Court ruling paves way for gay marriage case in the Cayman Islands
  5. ^ Cayman Islands immigration tribunal finds in gay couple's favour
  6. ^ Gay couple wins work permit appeal
  7. ^ Activists raise more concerns over discrimination
  8. ^ UPDATED: Bid for referendum on gay marriage fails Cayman Compass, 6 October 2016
  9. ^ Same-sex couples urged to test Cayman marriage law
  10. ^ Governor gives views on civil unions, Cayman Compass, April 3, 2018
  11. ^ "Women plan legal action after marriage rejection". Cayman News Service. 18 April 2018.
  12. ^ a b "Couple files legal challenge to gay marriage ban". Cayman Compass. 20 June 2018.
  13. ^ "Court gives green light to same-sex marriage case". Cayman Compass. 25 July 2018.
  14. ^ "Gay marriage trial set for early next year". Grand Cayman, Cayman Islands: Cayman News Service. 5 October 2018. Archived from the original on 6 October 2018. Retrieved 6 October 2018.
  15. ^ "Arguments conclude in landmark same-sex marriage case". cayman27.ky. 12 February 2019.
  16. ^ James Whittaker (11 February 2019). "Government lawyer acknowledges case for same-sex civil unions". Cayman Compass.
  17. ^ Whittaker, James. "BREAKING: Chief Justice rules same-sex marriage is legal | Cayman Compass". Retrieved 29 March 2019.
  18. ^ a b "UPDATED: Same-sex marriage legalised in Cayman". Cayman Compass. 29 March 2019.
  19. ^ "Government to appeal same-sex marriage ruling". Cayman Compass. 3 April 2019.
  20. ^ "Cayman Islands Government Appealing Same-Sex Marriage Ruling". Caribbean360. 3 April 2019.
  21. ^ "Same-sex marriage: What your representative said on the issue". Cayman Compass. 7 April 2019.
  22. ^ "Appeal court grants stay in gay marriage case". Cayman News Service. 10 April 2019. Retrieved 10 April 2019.
  23. ^ Ragoonath, Reshma (10 April 2019). "BREAKING NEWS: Appeal Court blocks same-sex wedding, Gov't stay granted". Cayman27. Retrieved 10 April 2019.
  24. ^ "Cayman Islands appeal court grants stay in same-sex marriage case". Caribbean News Now. 15 April 2019.