FCO: ‘Disappointed’ in Domestic Partnership Bill defeat

Defeat of bill shifts decision to Privy Council, British government

The United Kingdom’s Foreign and Commonwealth Office has said it is “disappointed” by the defeat of the Domestic Partnership Bill in the Legislative Assembly this week.

In a brief statement to the Cayman Compass Friday, an FCO spokesperson said discussions will continue on the way forward following the demise of the proposed legislation.

“The strongest, safest and most prosperous societies are ones where all citizens can live freely without fear of discrimination. We will continue to raise this issue and work with our counterparts in the Cayman Islands on next steps,” the FCO spokesperson said in response to queries from the Compass.

On Wednesday, the bill – which was piloted by Premier Alden McLaughlin – was defeated by one vote as three government members joined with the Opposition to shoot down the proposed legislation. The bill was aimed at creating a legal framework to formalise same-sex relationships without changing the definition of marriage.

The FCO spokesperson maintained the UK holds fast to its position on LGBT rights.

“We are fully committed to supporting LGBT rights around the world and are disappointed the Cayman Islands legislature has rejected this bill,” the spokesperson said.

Premier Alden McLaughlin
Premier Alden McLaughlin

The defeat of the Domestic Partnership Bill in the Legislative Assembly now leaves the fate and the future of legalising same-sex relationships in the Cayman Islands in the hands of the UK government and the Privy Council.

While all eyes are on the UK and when it will take action, McLaughlin, in his winding-up speech in the Legislative Assembly on Wednesday, said that he does not think it will take “even 30 days” for Cayman to see the “inevitable” legalisation of same-sex marriages at the behest of the British government.

However, the Governor’s Office was more reserved in its approach on a timeline for action, telling the Compass Thursday, “Consultations with London are ongoing as per the statement the Governor issued [on Wednesday].”

Cayman Ministers’ Association – ‘The democratically elected parliament should be respected’

Cayman Ministers’ Association chairman Pastor Torrance Bobb said he knows the failure of the Domestic Partnership bill will not be the end of the matter for Cayman, but he supports the decision of local legislators.

“I believe that the decision reflects the thinking of the vast majority of the residents here,” Bobb said in an emailed response to queries from the Compass Thursday evening.

While the ball is now in the UK’s court, Bobb said, he would not like to see Britain impose same-sex unions or marriage upon Cayman.

Pastor Torrence Bobb

“If our parliament took a decision, then the decision of the democratically elected parliament should be respected,” he said.

Bobb said the CMA is ready to continue to resist any changes that may see same-sex couples granted the right to legally formalise their relationships.

“Regardless of what happens, we, as the CMA, will always do everything that we can to protect and to promote God’s established order of marriage and the family. Deviation from this will put the wellbeing of our society in peril,” he said.

The pastor said God has the best interest of all people at heart. “He has given us the bible to guide us. When we follow His word, things will go well. When we don’t, we put our future at great risk.”

The result of Wednesday’s vote has left many in the community hurt.

“We should never willfully seek to hurt people by our actions,” Bobb said, “but we are living in an imperfect world, where things do not always go our way, even within families. Thank God that we can go to Him for help in prayer and for hurting people who seek Him, they will find comfort.”

Human Rights Commission: ‘Gov’t was duty bound’

The Human Rights Commission has said intervention by the UK on the same-sex issue now appears likely as, with “deep regret”, it watched legislators fail to pass the Domestic Partnership Bill.

“The decision of the Cayman Islands Court of Appeal dated 7 November 2019 with respect to the appeal brought by the Cayman Islands Government in the same-sex marriage matter was clear: Government was duty bound to meet its obligations under the Bill of Rights of the Cayman Islands to provide equality for all persons,” the HRC said in a statement Friday.

The Commission, which has been vocal on the issue of same-sex marriage, said in light of the court’s decision and government’s continued failure to meet its basic obligations under international law and the Bill of Rights to provide a remedy to the current inequality facing same-sex couples, “passage of the bill into law should have been inevitable”.

“Unfortunately, the Legislative Assembly failed once again to meet those obligations and direct intervention by the United Kingdom now appears likely,” it contended.

The commission pledged to continue to support and advocate for equality under the law for all persons as a fundamental principle of human rights.

It acknowledged that debate on this issue will continue, but it urged the community to do so with respect for each other.

“The Commission reiterates the need to treat everyone with courtesy, dignity and respect, and to reject intolerance and discrimination,” it added.

How the vote ended

The defeat of the Domestic Partnership Bill has revealed one main truth: like Cayman, the legislature is deeply divided on the issue of legalising same-sex relationships.

Over three days, 17 of the 19 Members of the Legislative Assembly made their feelings clear on the issue, which they collectively agreed, was “contentious” and “divisive”.

West Bay North MLA and Speaker of the House McKeeva Bush, who is on a leave of absence, did not attend the sitting to take part in the debate or register his vote. Deputy Speaker Barbara Conolly, who is taking up Bush’s role as presiding officer, could not vote as the Speaker of the House can only vote in the event of a tie.

Although the premier had said lawmakers could vote their conscience on the bill, he expressed disappointment that some of his own government members had voted against the proposed legislation. Education Minister Juliana O’Connor-Connolly, Health Minister Dwayne Seymour, and Councillor of Environment and Housing Eugene Ebanks joined with the Opposition to reject the bill.

Following the defeat, McLaughlin told the Compass simply, “My grandfather used to say, ‘Do your duty and be blessed or do your duty and be damned but do your duty.’ I have done my duty.”

Seymour, in a short statement to the Compass, said, “I was pleased with my vote and my conscience.” He had made it clear, during his contribution, that he did not support the bill, and that he was not leaving the government benches.

In a statement on Wednesday, Governor Martyn Roper, expressed his disappointment following the defeat of the bill, saying it was a “sad” day for the Cayman Islands.

“I appreciate the considerable efforts of the Honourable Premier and Attorney General to find the best compromise and balance for the country between our clear legal commitments and the strong views of many in the community on this issue. I believe the draft bill achieved that objective by protecting the institution of marriage, which I know is of such great importance to many. UK Ministers will consider carefully the implications of the bill’s defeat,” Roper said.

Death of the bill
The Domestic Partnership Bill, which sought to preserve the definition of marriage, allowed a legal avenue for same-sex couples to formalise their relationships and enjoy the same entitlements under the law as married couples.

The bill, the premier said, had addressed all the concerns raised by ministers of religion.
However, Opposition members disagreed.

One of their main points of contention, apart from the objections because of Christian beliefs, was the insufficient time allotted for public consultation on the issue before the bill was voted on.

Opposition Leader Arden McLean, in his contribution to the debate, said it was the first time in his 20 years as a legislator that he had seen a consultation period during a gazettal period.

He said it is customary, not only in this country, but also in other jurisdictions, when a government is proposing legislative action or reforms, that it circulates a white paper for a period of time prior to the bill’s introduction to the parliament.

“This was not the case,” he argued.

He said, in an interview with the Compass following the vote, that had there been more consultation, the result would have been different.

While the present form of the bill has been rejected, it is open to government to revise the legislation and take it back to lawmakers.

However, McLaughlin told the Compass, “I certainly will not be attempting to revive it.”

What happens next now rests in the hands of those across in the UK, either in the Privy Council or in the parliament.

It remains to be seen if the Privy Council will order the legalising of same-sex marriages; the UK imposes it through an Order in Counci; or it will be through written legislation penned under the governor’s reserved powers.

How we got here

While the debate was “robust”, as Attorney General Samuel Bulgin described it, there was no middle ground achieved to give effect to the Court of Appeal ruling in the Chantelle Day and Vickie Bodden Bush case.

Day, a Caymanian, and Bodden Bush, who has Caymanian roots, challenged the constitutionality of the Marriage Law as they sought the right to marry in the Cayman Islands.

Chief Justice Anthony Smellie ruled in their favour and changed the definition of marriage to state “marriage means the union between two people as one another’s spouses”.

This change legalised same-sex marriages in the Cayman Islands; however, the government challenged the ruling on the grounds that Smellie was wrong to legislate from the court bench and should have sent the issue back to the Legislative Assembly to remedy the constitutional breach identified in the case.

McLaughlin, in his contribution ending the debate on the bill, said from an administrative standpoint the chief justice’s approach in his ruling was “genius” when he wrote the eight words to put all marriages on an equal footing, as it averted the need to make further changes to multiple pieces of law.

“It flies in the face of the Constitution,” he said, but “it was genius”.

The Court of Appeal overturned Smellie’s ruling. However, the court pointed out that by failing to provide rights “equivalent to marriage” for same-sex couples, lawmakers in Cayman were in breach of the islands’ own Bill of Rights and the European Convention on Human Rights.

Prior to taking legal action, Day and Bodden Bush wrote on several occasions to McLaughlin and then-Governor Helen Kilpatrick in the hope of finding a political solution to the situation. However, with none in sight, they sought redress in the courts.

The couple has since filed an appeal to the Privy Council challenging the Court of Appeal ruling. That case is pending.

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