Government plans to appeal the chief justice’s decision to legalise same-sex marriage, Premier Alden McLaughlin announced Wednesday.
Speaking in the Legislative Assembly, the premier said the attorney general had been instructed to appeal the historic decision and to ask for a stay of implementation of same-sex marriage pending the result of that appeal.
He said government believes Chief Justice Anthony Smellie exceeded the scope of his powers when he changed the Marriage Law through his judgment on Friday. He said the chief justice had trespassed on the remit of the Legislative Assembly to write legislation.
The UK Foreign and Commonwealth Office immediately filed a statement expressing disappointment at the government’s decision and confirming that the governor, who was listed as a defendant in the original lawsuit, would not be involved in the appeal.
McLaughlin was speaking after the planned business of the Legislative Assembly was suspended for the day to allow all elected members to have their say on the issue of same-sex marriage.
He said, “The government believes that in his determination to right what he has described as injustice and indignities suffered by the petitioners in the same-sex partnership case, the Honourable Chief Justice may have exceeded the scope of the powers conferred on the court by the Constitution and in doing so, some have argued, assumed the role of this Legislative Assembly in deciding on what should be public policy and then legislating for it.”
He acknowledged that the Constitution contained a “mandatory requirement” that existing laws should be read “with such modifications or adaptations” as required to make them conform with the Bill of Rights.
He added,“But we believe that introducing the entirely new concept of same-sex marriage into the existing Marriage Law goes way beyond any reasonable interpretation of modification or adaptation.
“This, we believe, might be inconsistent with the separation of powers by trespassing on the constitutional remit of this Legislative Assembly.”
He said he had received multiple calls from constituents both in support of and against the concept of same-sex marriage. He added that, regardless of their views, many had expressed “shock and disbelief that the court could have made such a fundamental public policy change in a matter as important as the institution of marriage without reference to this Legislative Assembly”.
Recapping the talks that took place before the introduction of the Constitution, McLaughlin said many in the community, including religious leaders, had been concerned about the Bill of Rights and, in particular, the section that prohibits discrimination on a number of grounds, including sexual orientation.
He said section 14 (1) of the Constitution, which indicates that government should respect the right of men and women to marry a person of the opposite sex, was included in the document to assure those in the Christian community that the Bill of Rights would not lead to the introduction of same-sex marriage.
Without those assurances, he said, he was convinced the Constitution would not have passed by referendum in 2009.
McLaughlin said the government was also concerned that the court’s decision could now mean it was required to recognise other types of marriages, including polygamous relationships.
He questioned whether government would “now be bound to give effect to or recognise such marriages if an application for a marriage licence is made for a man to marry multiple wives”.
He said this would be one of three grounds of appeal, along with questions over whether the chief justice had correctly interpreted his powers to modify or amend legislation and whether the section on marriage within the Constitution amounted to a ban on same-sex marriage.
McLaughlin suggested government’s chief concern, however, is around the separation of powers between the courts and the elected government. “If left unchallenged, the implications for the Cayman Islands Constitution are significant and potentially far-reaching and go well beyond the rights of same-sex couples,” he said.
“While a challenge to the ruling is certainly not a decision to be taken lightly given the important human rights concerns raised in the case, the ruling of the chief justice has brought about significant ambiguity surrounding the Constitution and Bill of Rights and the interpretation of and ability of the court to amend other laws should similar applications be made.”
He said the government had no intention of causing harm or hurt to the couple who brought the lawsuit but added, “We must ensure that in seeking what they deem protections and rights under the law, that a door is not opened that may impinge on other protections and rights.”
He said he had “no doubt” that the majority of Caymanians supported marriage retaining its “traditional and religious definition and meaning”.
He added, “I recognise that many of the younger generation of Caymanians have differing views on this issue and it is quite likely that in years to come, the majority view of Caymanians may change. But such a majority is not evident to any of us here today.”
East End legislator Arden McLean filed a private members’ motion on the decision that was still being debated in the Legislative Assembly at press time Wednesday.
McLean’s motion, which was seconded by Anthony Eden, calls for the house to register its support for government to appeal the chief justice’s decision and express its disappointment in the chief justice and the governor. The motion also asks legislators to affirm that the Legislative Assembly is the only entity with the power to enact legislation.