The government cannot consider any request to recognize same sex unions, Premier Alden McLaughlin said in a letter to the Human Rights Commission that was made public on Monday.
The letter, dated Oct. 21, 2015, was the premier’s response to one sent by Cayman Islands Human Rights Commission Chairman James Austin-Smith’s on Aug. 19, 2015, which was prompted by a Legislative Assembly debate on a private members’ motion on “the preservation of traditional marriages” on Aug. 13. Mr. Austin-Smith requested that the premier respond to the debate, and invited him to denounce “in the strongest terms” statements that targeted homosexuals, subjected them to ridicule or even potential abuse in the community.
Mr. Austin-Smith also recommended that the government immediately introduce legislation to recognize same-sex unions and outlaw discrimination on the basis of sexual orientation.
The premier’s letter contained no mention of specific remarks made during the debate over the marriage motion, which was made by Bodden Town MLA Anthony Eden and seconded by Bodden Town MLA Alva Suckoo.
“This is an issue which has evoked great passion on both sides of the debate … there should be no surprise that the matter locally has had the debate that it has,” Mr. McLaughlin wrote. “The issue is not made any easier given that the government, even if it was minded to, currently has no mandate to alter the status quo was we have come to know it in the Cayman Islands.”
Mr. McLaughlin wrote that the government would consider the possibility of adjusting immigration policy to allow homosexual partners to live together in the Cayman Islands “even though they may not be able immediately to enjoy the menu of other rights enjoyed in jurisdictions that have legislatively recognized such relationships.”
The premier wrote that he was advised that such an approach – adjusting the immigration policy without recognizing same-sex unions – “would be consistent” with a “gradual maturation” approach alluded to by the European Court of Human Rights in a case brought against Italy to determine whether it violated human rights law by failing to recognize same-sex unions.
Responding to the premier’s letter on Nov. 16, Mr. Austin-Smith took issue with the statements made in the premier’s letter suggesting the European Court of Human Rights had agreed with the “gradual maturation” approach, or that the approach could even be argued here in the Cayman Islands as it was in Italy because the Italian government has already implemented a number of legal protections for same-sex couples.
The “gradual maturation” approach, Mr. Austin-Smith said, is actually an argument that the European Court of Human Rights “specifically disapproved” when it ruled against the Italian government.
“I have no doubt, particularly in light of the total absence even of any of the rights [currently afforded same sex-couples in Italy], that the Court would also rule against the Cayman Government if a case were brought today,” Mr. Austin-Smith wrote. “Can I invite you to reconsider the advice that you have been given? There should be no doubt about it – we are in breach of the law.”
In his letter, Mr. Austin-Smith also disagreed with the premier’s suggestion that the government “has no mandate” to change the law as it relates to same-sex marriage, noting that the government had full power to pass laws for “the peace, order and good government of the islands,” including when complying with obligations under international law.
“The government does not have to seek a referendum every time it wishes to pass a law and this issue is, respectfully, no different from any other, save that the need for legislation is so clear and immediate.”
Mr. Austin-Smith said there could be “no ‘gradual maturation’ where people are abused and threatened with violence, even from within the government, when they ask for basic rights.”
He wrote that the premier had failed to denounce statements made in the Legislative Assembly that, “amongst other things,” likened lesbian, gay, bisexual and transgender individuals to “pedophiles and those who practice bestiality,” and described them as “deviants,” “wicked,” “immoral” and “evil.”
“Whatever our differences of opinion on the government’s legal obligations, I hope you can agree with me that this was deeply unpleasant abuse, likely to incite hatred and is worthy of condemnation in the strongest possible terms,” Mr. Austin-Smith wrote to the premier. “I encourage you at the very least to say so publicly.”