Voters in Bermuda overwhelmingly rejected same-sex marriages and civil unions in a referendum last week, as the island is in the midst of a legal and political debate that mirrors the discussion in the Cayman Islands.
In the referendum on Thursday, the same day as the U.K. poll on leaving the European Union, voters rejected any formal recognition of same-sex partnerships by a ratio of more than two-to-one.
However, the turnout was less than 50 percent, which is the legal threshold for the result to be considered valid, so it is being treated more as a formal poll of public opinion in the territory.
There have been calls for a similar referendum in the Cayman Islands, including from Opposition Leader McKeeva Bush and independent legislator Anthony Eden, but government has rejected the idea.
It is questionable whether the result of a public referendum in either Bermuda or Cayman would have legal weight against established case law in the European Court of Human Rights, which is the final court of appeal for both territories.
The right for same-sex couples to have the same suite of legal rights and protections as heterosexual couples is guaranteed by the court, though a recent ruling makes clear that does not have to be achieved through formal marriage.
Former Truman Bodden Law School professor Leonardo Raznovich, who is involved in a legal fight with the Cayman Islands Immigration Department to be added to his same-sex spouse’s work permit as a dependent, said it is the rights that are important, rather than the name.
“They can call it what they want,” he said. “They can call it ‘evil union’ if they want to, but legally they have to do it.”
He said the Bermuda result was not a surprise, citing the fact that half the electorate did not turn out, which showed that it was only an issue for a vocal minority who “want to continue to discriminate against a section of their society.”
He believes a referendum is the wrong way to go for Cayman and that the result would have no validity in the face of a court challenge to discriminatory treatment of same-sex couples.
“The issue is about rights so, first of all, you shouldn’t have a referendum to decide who you give rights to and who you don’t.
“Despite what some people seem to believe, there is an obligation under the European Court of Human Rights to have a legal framework for same-sex couples to have the same rights as heterosexual couples.”
If the Cayman Islands government does not introduce a framework, it may be forced to do so by a judge, if challenged in court, he said.
“It seems like they are going to wait for that to happen, but it is only a matter of time. The right is out there to be grabbed,” he added.
Several legislators, during a debate in Finance Committee last week, urged the attorney general’s office to do everything in its power to fight any ruling in favor of Mr. Raznovich, whose challenge relates specifically to immigration rights.
Both Ezzard Miller and Anthony Eden expressed belief that a recent decision of the European Court strengthens their stance.
The court ruled that the French state did not act illegally when it annulled a same-sex marriage on the grounds that French law, at the time, defined marriage as between a man and a woman. The law allowed for same-sex civil partnerships but not same-sex marriage, which was not introduced until 2013.*
Speaking in the Legislative Assembly last week, Mr. Eden, known for his religious views and vehement opposition to same-sex partnerships, hailed the decision as a “moral victory” and said, “Our prayers have been answered.”
However, the Cayman Islands Human Rights Commission clarified that the ruling did not alter the legal landscape and had been broadly misinterpreted by Cayman’s legislators.
The French case confirmed that Cayman and other countries under the court’s jurisdiction are not legally obliged to allow same-sex couples to marry. However, the court reaffirmed its earlier ruling that governments are obliged to ensure they are entitled to the same rights as heterosexual married couples on a host of issues, including financial support, child maintenance payments, inheritance and immigration.
In a statement Thursday, the Cayman Islands Human Rights Commission wrote, “For the avoidance of doubt: States are required, by law, to make provision for same-sex couples to have their relationships legally recognized (although that recognition does not have to be by ‘marriage’). Any suggestion that Cayman’s current legal framework is sufficient to survive a legal challenge in the court on same-sex unions is wrong as a matter of law.”
***Editor’s Note: This story has been amended from the original.***