***Update, April 5, 1:30 p.m.***
Speaker McKeeva Bush has called for Human Rights Commission Chairman James Austin-Smith to be immediately fired by Governor Martyn Roper, following the commission’s statement Thursday criticising government’s decision to appeal the chief justice’s decision to legalise same-sex marriage.
Speaking in the Legislative Assembly Friday, Bush said the strongly-worded statement from the Human Rights Commission was an insult to the Assembly and a “flagrant and wanton abuse of office” from Austin-Smith.
He demanded a written apology from the commission chair and urged the governor to intervene by summarily dismissing Austin-Smith and censoring him for the statement.
He went on to describe Austin-Smith as an atheist who had “declared a stand against God” and should therefore not be chair of the Human Rights Commission.
He added, “From my standpoint a declared atheist should never be a chair of such an important body.”
Bush suggested the Human Rights Commission statement, which said government’s decision to appeal Chief Justice Anthony Smellie’s landmark judgment was ill-considered and likely to fail, had risked prejudicing the outcome of the appeal.
“It is my opinion that the statement intended to influence against the government’s appeal. The chair of the Human Rights Commission is in contempt of the law and he ought to render an unconditional apology to this assembly,” he said.
“Would to God though, that the governor would immediately remove him. It is one of the greatest conflicts in him being there. There are many young lawyers, capable ministers, consider some of these people.”
Bush read out some of the functions of the Human Rights Constitution defined in the Cayman Islands Constitution, including its remit to promote the understanding of human rights in the Cayman Islands and said he could not see how the commission’s statement fell within that brief.
In a statement Thursday afternoon, the commission expressed disappointment at government’s announcement that it would appeal the court’s decision. It said the appeal would waste valuable public funds in an effort to maintain proven discrimination against same sex couples.
The statement added, “Unjustified state-sponsored discrimination has no place in a modern democracy and it is unlawful under Cayman’s Constitution.”
On Thursday night, the Legislative Assembly unanimously approved a private member’s motion from East End MLA Arden McLean that expressed disappointment with the chief justice’s decision, backed the government’s appeal and asserted the competence of the local parliament as the only law-making body in the Cayman Islands.
McLean suggested Austin-Smith should be fired and deported.
He claimed authorities in the Cayman Islands had deported people in the past for speaking out against the country.
“I don’t know why we are so weak now. You know how many people were picked up in this country and deported midnight and not returned since?
“That’s what we have got to do with people like James Austin-Smith and this guy ‘Rakovic’ or whatever his name is.”
McLean is understood to have been referring to Leonardo Raznovich, a former law professor at the Truman Bodden Law School who has been an advocate for marriage rights for same-sex couples in Cayman and assisted the legal team that brought the recent successful constitutional challenge.
On Friday, Education Minister Juliana O’Connor-Connolly used the morning prayer to speak out against cruise passengers with alternative lifestyles.
“I went there for myself. I walked the streets of George Town and witnessed what was almost like a Sodom and Gomorrah,” she said.
Savannah MLA Anthony Eden responded by asking Deputy Governor Franz Manderson to ensure the police looked into O’Connor-Connolly’s concerns.
He said, “In light of the disturbing knowledge shared by the Minister of Education I am asking that it is ensured that public decency and decorum is maintained on our streets here in Cayman by the police.”
Cayman Islands legislators have roundly condemned the chief justice’s decision to legalise same-sex marriage during an extensive two-day debate.
Many expressed concern that the court, in directly amending the Marriage Law, had overreached and stepped into the territory of elected lawmakers.
Some spoke out specifically against same-sex marriage, saying the majority in the country did not want it, while others made more general condemnations of homosexuality, citing passages from the Bible to bolster their arguments.
Anthony Eden, the legislator for Savannah and a vocal opponent of rights for same-sex couples, said, “God is the judge, jury, and he will be the executioner because he says in this book [the Bible] that this type of lifestyle will keep you out of Heaven.”
Education Minister Juliana O’Connor-Connolly described the day of Chief Justice Anthony Smellie’s judgment as “black Friday” for the Cayman Islands. She encouraged Caymanians to do what they could to object to the planned wedding between Chantelle Day and Vickie Bodden Bush, even to the point of interrupting the wedding itself.
Day and Bodden Bush won a constitutional challenge to change Cayman’s Marriage Law to allow same-sex couples to marry.
O’Connor-Connolly backed government’s decision to appeal the judgment and to ask for a stay of implementation of same-sex marriage from the courts, saying that decision was an example of God answering people’s prayers.
Environment Minister Dwayne Seymour said government’s stance against same-sex marriage was not about hate and people could do whatever they wished in their own bedrooms.
With respect to marriage, he added, “What is the rush? Why can’t people respect our views and our culture? Is the mandate to change the whole world into Sodom and Gommarah? Not our Cayman Islands.”
He went on to suggest the decision could lead to children being forced to “read textbooks about Fred and Ned and Ann and Fran”.
Newlands legislator Alva Suckoo said the chief justice’s decision was a threat to democracy and had prompted a constitutional crisis. He added that he was concerned that some of the legislators were being victimised for their views on same-sex marriage.
“I have witnessed and heard some really horrible things,” he said. “I am getting really concerned because I am seeing attacks on members of this legislature. I can’t condone that. They are engineered and designed to scare us into not doing what we declare is right.”
Suckoo was one of a number of legislators to suggest the push for same-sex marriage was being brought by outside influences.
Though the lawsuit was brought by a Caymanian and her partner, multiple representatives suggested the decision was designed to advance a UK agenda.
Chris Saunders, MLA for Bodden Town West, said the issue was primarily about the will of the people.
“This is a democratic country, simple as that,” he said. “Majority rules and if you don’t like it, there are other places you can go. This is what democracy is about. It is not about the minority having their way. It is about what the majority in a country wants.”
He said he meant no harm to the “brave” couple that had brought the court challenge and was not trying to legislate morality, but insisted “majority rules”. He went on to question what would come next if same-sex marriage were legalised, citing paedophilia, polygamy and transgender bathrooms among his concerns.
The constitutional argument
The legislators were speaking as House business was suspended during Wednesday and Thursday to debate same-sex marriage. The debate was continuing Thursday afternoon.
East End legislator Arden McLean brought a private members’ motion condemning the chief justice’s decision, backing the government in its appeal and urging Parliament to reaffirm its supremacy as the only body that can make laws.
McLean kept his argument focussed primarily on constitutional questions, saying the issue went way beyond same-sex marriage.
He said he believed the chief justice had misinterpreted his powers to modify legislation that does not accord with the Bill of Rights and should instead have referred the matter back to the elected politicians.
“The chief justice has no place to make law – he or no one else – he’s taken that right from the people who sent us here to do that,” he said. “He has no authority to do it. This is our House, this is the people’s House, this is their real estate. We enact what they tell us what to enact, and if we are wrong, bring it back to us.”
Both he and North Side legislator Ezzard Miller raised concerns that the courts could, in the future, use the same powers to amend the Elections Law, for example, to allow people from overseas to run for office.
Miller has recently expressed support for civil unions for same-sex couples. Though he did not make any reference to this in his debate on Wednesday, he said government needed to consider what it was going to do if all appeals against the ruling failed.
He said he was extremely concerned about the notion that the courts could use Section 5 of the Constitution to amend existing laws and suggested this provision should be reviewed.
“If we do not find a way to correct and change our Constitution to prevent this ever happening in the future, it is the greatest danger to our democracy that has come in a long time,” he said.
The power to modify
Government’s lawyers appeared to accept, during the trial held in February, that the chief justice did have the power to amend laws under Section 5 of the Constitution, though they contended that this was a “nuclear option”.
Sir Jeffrey Jowell, representing the government at trial, said to do so in this instance would be “judicial legislation of an unacceptable kind”.
Chief Justice Smellie in his ruling indicated that both parties had accepted that the Marriage Law pre-existed the Constitution and said he was compelled, therefore, to refer to Section 5 of that document, which deals with ‘existing laws’. He said that section gives the courts power to amend legislation that was “repugnant” to the Bill of Rights.
He said similar clauses were included in the constitutions of many British Overseas Territories adding, “It is now settled case law which confirms that in cases of repugnancy, the courts may, indeed must, apply section 5 to make such modifications, adaptions, qualifications and exceptions as may be necessary to bring the law into conformity with the constitution.”
He said this power was extensive and included the ability to delete and replace sections.
Through his decision, he removed a provision in that Marriage Law specifying that marriage is defined as between a man and a woman, replacing it with a new definition of marriage as being between two people as one another’s spouse.