The Cayman Islands Legislative Assembly on Wednesday rejected a proposed Domestic Partnership Law by a narrow but yet telling 9-8 vote, despite a passionate appeal by Hon. Premier Alden McLaughlin.
The law was intended as a compromise in lieu of same-sex marriage.
The historic vote brings to an end one phase of a long-running battle over legal recognition of same-sex unions but it is now felt that it could open the door to a full imposition of same-sex marriage as further legal challenges are expected.
A likelihood that the UK might also impose same-sex marriage on the territory as a result also loomed large during the previous two days of debate.
A disappointed Hon. Premier Alden McLaughlin on Wednesday reflected on the disillusionment and despair which descended over him on Tuesday night following two days of intense and passionate contributions over the controversial Domestic Partnership Bill, giving legal recognition to same-sex couples.
Although he told Wednesday’s meeting of the territory’s Legislative Assembly that by early in the day the disenchantment that he felt had somewhat subsided as he was confident that he was doing the right thing, his displeasure was still palpable.
Seemingly anticipating that his government was facing losing the historic vote with its socially-defining implications, Mr McLaughlin felt that political expediency had triumphed over prior indications of support even though he had agreed to a free vote.
He considered that the previous day was “the hardest of all” in his seven years as leader.
Some observers have linked the vote to the upcoming general election due by next May and a lack of public affinity for the concept of same-sex marriage or its alternative of domestic partnership.
When Mr McLaughlin stated “we shall see who’s here and who’s not next time around” that was seen as alluding to the next election at which this issue was already been seen as a key determining factor.
In lieu of same-sex marriage, the new law fashioned largely on an equally controversial law in Bermuda, is intended to recognise a legal union between same-sex couples.
The goal of having same-sex unions recognised in law has been a long-running legal hurdle through the Cayman Islands court system, aspects of which are now headed to the Privy Council.
The Premier rejected accusations that the public consultation on the delicate issue was unsatisfactory and insufficient.
He said that there was extensive consultation, especially with the clergy.
The law as drafted excuses members of the clergy from presiding over domestic partnership.
Mr McLaughlin said that if same-sex marriage is imposed in Cayman, all marriage officers including the clergy will by law have to marry same-sex couples or forego their right to perform marriage ceremonies.
With the vote going down to the wire, the Premier dared members to cast their vote and not abstain.
“I don’t want anyone to abstain. Stay and vote your conscience,” he challenged, “and you will have to live with the consequences of your decision.”
But he cautioned that if MLAs voted as they had indicated and the bill fails “it will be a greater disaster than this Domestic Partnership Bill multiplied tenfold.”
GOVERNOR ROPER REACTS
In a statement immediately following the vote, His Excellency the Governor, Martyn Roper, expressed regret that the bill had failed and called it a sad day fr the rule of law in Cayman.
“I recognise the great sensitivity and strong emotions aroused across our community by the debate on the Domestic Partnerships Bill. There were many high quality and passionate speeches by members of the Legislative Assembly on both sides of this difficult debate,” he stated.
But the Governor said: “I am nonetheless greatly concerned that the Legislative Assembly has not passed the Bill. It is a sad day for the rule of law in the Cayman Islands, a cornerstone of our democracy.
“The Grand Court, Court of Appeal and the Cayman Islands Government itself, have all recognised that there is a clear legal obligation on the Legislative Assembly to provide a framework to end discrimination against same-sex couples.”
Mr Roper stated: “The Legislative Assembly has an overriding responsibility to uphold the rule of law to ensure it is compliant with the Cayman Islands Constitution, Court of Appeal Judgement and the European Convention on Human Rights.
“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.
Quite significantly, the Governor made the following observation:
“UK Ministers will consider carefully the implications of the Bill’s defeat,” he concluded.
The Governor would have the authority to impose a same-sex law if directed by the UK should the British government choose one of the options available to it to have the law enacted here.
It could also do so by an Order-In-Council from London.
THE DEBATE: DAY ONE
Tabling the bill, Hon. Premier Alden McLaughlin stated: “Notwithstanding any appeal to the Privy Council, the court made itself very clear that the protection sought by Ms Dee and Ms Bodden (the two petitioners at the forefront of the issue) must be put in place.”
Quoting from the court ruling, he read: “Moreover, in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom government to recognise its legal responsibility and take action t to bring this unsatisfactory state of affairs to a close”
With that prospect hanging over the issue, Mr McLaughlin informed the Assembly: “I can tell you Madam Speaker, straight from the horse’s mouth that that stated expectation certainly caught the attention of the United Kingdom government.”
Pointing to the anticipated political reactions locally he added that, “the next generation of legislators will legislate for same-sex marriage. They have a very different outlook than our generation and the one that has gone before us, so let us leave it for them to decide.”
Mr McLaughlin also felt that the issue of the Domestic Partnership Bill has wider implications for the Cayman Islands for its constitutional advancement and relations with the United Kingdom.
In that context, he warned of “the political risk of inaction”.
Hon. Deputy Leader of the Opposition in the Cayman Islands LA, Arden McClean called the introduction of the Domestic Partnership Bill as “a day of infamy.”
“I cannot recall one instance in the nearly 20 years since I have been a representative has there been a more divisive bill promulgated in these hallowed halls,” he stated.
Mr McClean called on the government to withdraw the bill to allow for wider public consultation and questioned the perceived haste with which he said the government was pressing ahead with it compared to other pressing issues.
Mr McClean also took issue with the suggestion that unless Cayman instituted the Domestic Partnership law, the UK could impose same-sex marriage on the jurisdiction.
Former Opposition Leader, Hon MLA for Northside, Ezzard Miller recalled that it was a rift within the opposition over his stance on the issue which led to him now sitting as an independent member.
“My personal position is that I believe we have an obligation as members of this Assembly to protect the minority whether that be on the basis of sexual orientation, colour of skin, gender or any social-economic bias that might creep in.
While he said he would be supporting the bill, Mr Miller however expressed several reservations including his preference for a civil union rather than the domestic partnership as outlined.
Acknowledging the political implications of his stance, with elections due next year, Mr Miller stood his ground.
Hon. Deputy Premier and MLA for Cayman Brac West and Little Cayman, Moses Kirkconnell, addressing the controversy swirling around the bill, stated: “Introducing this Domestic Partnership Bill is definitely a way forward because it allows us to protect the intention of our constitution in keeping the sanctity and definition of marriage intact, while at the same providing the legal and financial benefit to our alternative lifestyle couples wanting to formalise their commitment to one another.”
He felt that if the Cayman Islands did not take action there was a risk of it being imposed by the UK.
Mr Kirkconnell discounted independence as an option for the Cayman Islands if it rejected the law and resisted the UK imposing it, calling it impractical.
Also making the case in support of the bill was Hon. Minister of Commerce, Planning and Infrastructure and MLA for George Town North, Jey Hew.
Placing objections to the Domestic Partnership Bill in the same bracket as segregation and prejudice, he warned that, “these are things of the past world and we will not out up with them any longer. It has become unacceptable. We have written kit in our constitution., It is unavoidable. We have to deal with it.”
He was also concerned that if Cayman did not act to recognise domestic partnerships in law, it would be introduced directly by the UK.
“Let us not have legislation forced on us by the United Kingdom (that will) continue the segregation and disharmony amongst our people,” he pleaded.
Support for the Domestic Partnership bill also came from the Hon. MLA for George Town West, David Wight.
He saw a situation where, if Cayman did not institute the law as its best suits the local community, a version possibly not conducive to Cayman was likely to be imposed by the UK.
He called for compromise and balance locally on the disputatious issue saying Cayman’s international reputation was at stake.
On the other hand, the Hon MLA for Savannah, Anthony Eden remained adamantly opposed to both the Domestic Partnership Bill and homosexuality in general.
Quoting liberally from the bible, he said his deeply-held Christian beliefs led him to no other conclusion than to conclude that same-sex relations were an abomination.
He defended his strongly held and strident news on the matter as being based on biblical teachings and should not be seen as hate speech.
“If it comes from the bible how could some of these people call it hate speech? When I look around it seems like God’s word is forgotten,” he lamented.
THE DEBATE: DAY TWO
The second day of debate of Cayman’s hugely controversial Domestic Partnership Bill kicked off with Hon. Finance Minister Roy McTaggart voicing an opinion that the issue was less about same-sex and more about discrimination.
He felt the Court of Appeal ruling gave the jurisdiction a second chance to resolve the issue and challenged his colleague MLAs to deal with the matter rather than defer it ti the UK government.
Mr McTaggart said it was critical that the bill makes domestic partnerships “functionally equivalent” to marriage.
He said while not perfect the bill was nonetheless it for purpose.
The Hon MLA for Prospect Austin Harris, who is also a government Councillor for Employment, Border Control & Community Affairs admitted that he struggled with the bill and called it the most difficult debate he has had since being elected in 2017.
He said his public consultations indicated deep divisions in the society over the issue with many people saying that they would have wanted more time to consider the bill and its implications.
Mr Harris also felt that unless Cayman passed the bill the UK was likely to impose it either directly via an Order In Council or through the Governor’s reserved powers.
He stressed that as the bill was “functionally equivalent to marriage, not identical” was the basis for his support.
The Hon. Deputy Leader of the Opposition Alva Suckoo (MLA Newlands) questioned why there was no clear definition of the intent of the bill in the legislation which he said left it wide open to interpretation.
“If there is no definition in statute, it is wide open, subject to interpretation by the courts, the same courts that has landed us here today. Why not put the definition in the bill?” he questioned.
The Deputy Opposition Leader was also concerned about the law being exploited and misused for marriages of convenience.
He felt there was insufficient public consultation and concluded that Cayman “was not yet prepared” to support the legislation.
Hon Min for Health and MLA for Bodden Town East, Dwayne Seymour, delivered a passionate oratory on his religious beliefs to underline why he could not support the bill.
While he felt that “the bill is better than what could have been worse”, Mr Seymour said it was not one of the government’s priorities.
The Health Minister who is well-known for his biblical quotes, called the debate “a moment of truth” for him and that he was not in a comfortable position on the issue given his convictions.
Hon MLA for West Bay North, Bernie Bush classified the bill as being “very short on legs in the public eye.”
He doubted the government’s assertion that the UK could impose same-sex marriage legislation on the Cayman Islands saying that they were scaremongering.
“There is no discrimination against gay people in the Cayman Islands,” he posited and insisted that there were more pressing issues confronting the territory at the moment.
He also felt that the matter should have been decided via a referendum.
Mr Bush is also of the view that the Domestic Partnership bill could lead to an explosion in sham marriages.
“You open this Pandora's Box and you’ll see the amount of sham marriages,” he warned.
A strong Christian faith was also a prominent feature of the presentation by the Hon. Minister for Education and MLA for Cayman Brac and Little Cayman, Juliana O’Connor-Connolly.
She informed the House that she would vote against the bill as it conflicts with her beliefs.
Regarding the possibility of UK intervention, her view is that the decision had been devolved to the Overseas Territories.
Although she commended the drafters of the bill, Mrs O’Connor-Connolly said the nature of the issue was itself politically divisive.
“How can we vote for this and then go home and face our constituents and say, I didn’t know what I was doing? I didn’t understand it? Well by God in that case abstain.”
But she assessed that abstaining was out of the question.
“The votes are so close on this most critical issue. The choice is up to us.”
For Hon. MLA for Bodden Town West, Chris Saunders, “I had to take a long look at this issue and even a longer look at myself.”
“This issue bothers me to my core,” he admitted, asking “How do you legislate morality, social values and spirituality?”
“The only people that can decide those issues are the people of the Cayman Islands,” he said, “and they do it via this Legislative Assembly.”
Recalling the period it took for the US and the UK to arrive at decisions on similar issues he said “people expect this young country (Cayman) just to overnight move there? That is not going to happen.”
In her turn at the despatch box, the Hon. Minister for Financial Services and Home Affairs, Tara Rivers (MLA for West Bay North), observed that while the issue was hugely divisive the democratic process prevailed.
“That is the beauty of democracy. People feel very strongly about the issue on both sides of the spectrum. Some people think the bill goes too far and are opposed to the idea of legally recognising any union besides marriages between a man and a woman. On the other hand, some people do not think the bill goes far enough or doesn't take the form that they’d like it to take.”
However, the Home Affairs Minister told her colleague MLAs: “To vote against this bill will be to knowingly refuse to carry out your obligations as a member of the Legislative Assembly to uphold the law and what the Constitution requires of us as legislators.”
An intervention by the Hon. Attorney General Samuel Bulgin, sought to add some legal clarity to the bill given the tone and direction of the debate.
“It's an emotive issue and not surprisingly the debate so far has been very robust, sometimes emotive but thank God, fairly civil,” he noted.
But the Attorney General emphasised: “Nobody's trying to destroy marriage. The primary issue of this debate is about the rule of law.”
Mr Bulgin reassured that “after this law is passed - if it is passed - marriage as we understand it will remain the same, it will not change.”
“What will change,” he explained, “is that persons who are not interested in the institution of marriage either for religious reasons or for any other reasons at all, they will have an opportunity to put in place an arrangement to deal with someone else in a legal way that can afford certain rights and responsibilities.”
In a brief contribution to the debate, Hon. MLA for West Bay Central, Capt. Eugene Ebanks also termed the bill the most emotive that he has had to debate in his 19 years in the Assembly
He too cited “a rich Christian heritage” and the societal implications from the bill.
Mr Ebanks who is also a Councillor in the Ministry of Environment and Housing said the very nature of the issue required the ‘conscience vote’.
In the final presentation on Tuesday night Hon. MLA for George Town Central, Kenneth Bryan chided the government for what he regarded as inadequate public education and consultation on what he said was a complex issue.
“I personally think there was an attempt not to consult with the people because they knew how they (the people) were going to feel.”
Mr Bryan contrasted that with the huge effort he said the government had put into a costly public relations campaign for the equally controversial cruise port project which has since stalled.
The Cayman Islands Domestic Partnership Bill with all its complexities, controversies and implications was being closely watched by other Overseas Territories, regionally and internationally including by religious organisations and global human rights groups, especially gay rights campaigners.