The landmark legalisation of same-sex marriage in the Cayman Islands has unleashed powerful emotions. With them have surfaced all sorts of misinformation and confusion over legal rights, separation of powers and personal beliefs.
Government’s decision to appeal the chief justice’s decision introduces an element of uncertainty to an already heated moment, drawing censure from the Human Rights Commission and eliciting disappointment from the UK Foreign and Commonwealth Office. The governor will not involve himself in the appeal.
Institutions and individuals here and abroad have been supportive – even congratulatory – of the court decision. While it has stoked controversy and debate locally over the definition of marriage, the decision has also been met with the approval (indeed, with joy and relief) of many Caymanians, regardless of sexual orientation. As this board has written, Chief Justice Anthony Smellie’s decision brings Cayman’s Marriage Law into alignment with other modern societies and the civil rights set out in our own Constitution. It was a critical correction based on bedrock democratic principles of equal legal protection.
Even in informing the Legislative Assembly of the appeal, Premier Alden McLaughlin acknowledged that there is “no guarantee or certainty” of success. Still, he advised that Cabinet felt an appeal would clarify “important constitutional issues” – namely, whether the chief justice’s ruling was firmly grounded in his constitutional authority to amend laws that predate and contradict the Constitution.
It is a question explicitly dealt with at trial and discussed at length in the chief justice’s ruling; nor would we wish to see Cayman walk back marriage equality. At the same time, if the appeals process helps educate more people about legal marriage, civil rights and the Constitution, lending weight to the court’s decision, it will not have been in vain.
As the premier reminded members of the Legislative Assembly, “this is an issue with real people who have real lives and there are emotions and feelings involved and that this is not merely some text book case.”
Therefore, we are deeply disappointed that some elected officials and public figures have chosen to indulge in incendiary and confusing rhetoric rather than calling for calm, respectful dialogue. Our elected leaders, in particular, have a duty to keep cool heads and remember their oaths to “do right to all manner of people according to the law without fear or favour, affection or ill-will”.
To the contrary, several used their positions as a bully pulpit last week, stoking outrage rather than representing all constituents.
House Speaker McKeeva Bush provided a particularly egregious example of this troubling lack of decorum in calling for the firing of Human Rights Commission Chairman James Austin-Smith. The Speaker’s call for retribution for the commission’s support of the chief justice’s ruling was both intolerant and unfair.
Also noteworthy was Education Minister Juliana O’Connor-Connolly’s suggestion that Caymanians formally object to the petitioners’ marriage – either during the seven-day waiting period or by interrupting the actual ceremony. During the Legislative Council’s discussion, no legislator stood to condemn these or other colleagues’ outrageous public statements, nor to call for more measured debate.
If Cayman’s lawmakers do not like the position they’re now in, they have only themselves to blame. They have been asked for years to provide a legal framework for same-sex couples to access the rights and assume the responsibilities of legal unions. They declined.
Their insistence that they are simply following the will of the people is unpersuasive. First, there are scores of Caymanians who favour marriage equality. Secondly, and much more important: Civil rights are not a popularity contest. They cannot be bestowed, or denied, by majority rule.