A CMA position on Current Issues - 15 January 2020
A. Legal and Constitutional Context.
The Cayman Islands Court of Appeal
ruled in November 2019 that the Cayman Islands Constitution in Section
14 understood and protected a person's Marriage in the Cayman Islands
as a union with a person of the opposite sex, with whom a family might
be founded; this was consistent with the definition of marriage
provided by the Cayman Islands Marriage Law. Consistently with the
position of the European Court of Human Rights ("ECtHR"), to restrict
marriage as a union of opposite sexes in the Cayman Islands was not a
legal breach of rights, as it was within the competence of states
parties to determine whether or not marriage should be regarded as a
union of opposite sexes only. Decisions abolishing this competence in
other jurisdictions such as Canada could not be applied to the Cayman
Islands because, unlike what might apply in those places, Cayman
deliberately chose by the wording of its s.16(1) not to allow its
non-discrimination section to be free-standing in its application.
In the context of the Cayman
Islands as a British Overseas Territory it is also clear that the
understanding and definition of marriage is intended to fall under the
devolved responsibilities of the territory, whose constitution and
legislature will determine for itself such modalities of marriage as
are within the competence of the Cayman Islands or other relevant
territory. It should be noted that it was under the "cover" of the
unfortunate recent temporary absence of a functioning Northern Ireland
Government that controversial legal changes to the Marriage Law (inter
alia) applying to that jurisdiction were forced upon it by Westminster.
The Cayman Islands Government, on the other hand, is alive and quite
well, as are other overseas territories governments. It is at this
point, however, that the Cayman Ministers' Association has to recognise
the great difficulty that what is generally considered to be part of
the ruling of the Cayman Islands Court of Appeal has brought upon the
deliberations of the Cayman Islands Government.
The Cayman Islands Court of Appeal
President (The Rt. Hon. Sir John Goldring) issued a "Declaration"
which, as he made particularly clear in open court at the ruling, was
separate and not part of the ruling on the case at hand, which was
essentially about the meaning of the 2009 Constitution. The Declaration
was to the effect that the legislature of the Cayman Islands should,
because of the right to Private and Family Life, expeditiously provide
the legal means for same sex couples and their adopted children to
enjoy a legal standing that was "functionally equivalent" to Marriage.
This was to be understood as mirroring the ECtHR in its position on the
matter, satisfying both s.9(1) of the 2009 Constitution and Article 8
of the European Convention.
The Court of Appeal President
warned in this added Declaration that if the Cayman Islands Legislature
refused or delayed action on the matter, then it ought to be taken out
of the hands of the LA and enforced in one way or another otherwise.
The last two remarkable sections of the Delivery of Judgment read as
follows:
120. This court
is an arm of government. Any constitutional settlement requires the
executive and the legislature to obey the law and to respect decisions
of the court. It would be wholly unacceptable for this declaration to
be ignored. Whether or not there is an appeal to the Privy Council in
respect of same-sex marriage, there can be no justification for further
delay or prevarication.
121. 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 to bring this unsatisfactory state of
affairs to an end.
Questions have been raised,
however, about whether this court too has not by such statements
significantly overstepped its jurisdiction, since it perhaps ought not
to pronounce a declaration in the manner of a judgment upon a matter that was not tried. The Conclusion of the judgment on the matter that was tried is found in s.115 (Executive Summary). All that follows is the opinion of the Court only, and not part of its legal determination of the case.
The Premier and others are of the
view, as are we, that it would be very bad, providing a terrible
precedent for Cayman, not in respect of this issue only but in every
respect, if matters such as this one that are now generally accepted as
devolved issues become subject to the intervention and "interference"
of UK central authority. Moreover our view is that the Court would have
been wiser not to have entered upon this matter, and that it did not
have the authority so to do.
B. The Context of the Church's View on Sexuality and Marriage.
The Church's view has long and
reasoned roots that are legal, ethical, biblical, authoritative and
christological, generative of a healthy society and not subject to
earthly dominations. On the current issues they were well expressed in
Jamaica in the 2012 document reproduced immediately below.
The Kingston Declaration on Human Dignity, Family and Society - 10th December 2012
Preamble
WE, THE UNDERSIGNED,
gathered here in Kingston, Jamaica, from various walks of life and
representing the human family in all its cultural, racial, ethnic,
linguistic, national and religious diversity, in commemoration of
International Human Rights Day on the 10th day of December 2012;
Aware that in this day and age,
ideas have arisen which threaten inherent human dignity and those
rights that are truly fundamental;
Conscious that the term “rights”
has been misappropriated and abused by those who promote a false
anthropology that would reduce human beings to behaviouristic creatures
governed by their passions;
Concerned that certain advocacy
groups, transnational actors and even governments have sought to impose
such unfounded “rights” upon nations and peoples in violation of their
sovereignty and in violation of universal moral principles that are the
bases of genuine fundamental rights;
DO HEREBY AFFIRM THAT:
Human Dignity & Universal Rights
1. All human
beings, being created in the Image of God, possess inherent dignity and
are endowed with reason, conscience and free will.
2. All human
beings possess fundamental rights that are universal. Such
universal rights are knowable and discernible through the exercise of
reason and transcend time and culture.
3. The
fundamental and universal rights to which all human beings are entitled
come from God, who is the Creator and is transcendent, external to and
above all men, and to whom all men are accountable.
4. Men and women
are equal in dignity and are complementary. They are rights
bearers who must be respected in and of themselves, and not merely as
means to an end.
5. Rights that
are recognized as fundamental across cultures and time, include the
right to life and freedom of thought, conscience, religion and speech,
and the right of a man and a woman of full age to marry and found a
family.
The Family and the Common Good
6. The family is
the natural and fundamental group unit of society and is entitled to
protection by society and the State, which must respect the prior
rights of parents to choose to raise and educate their children in a
manner conducive to their well-being.
7. Marriage and
procreation are fundamental to the very existence and flourishing of
the human race, and are based on the natural complementariness of man
and woman.
8. All children
are to be welcomed into the world. The family is the optimal and
natural environment for the bearing and upbringing of children, who are
entitled to special protection before and after birth.
9. Protection of
public health and morals and preservation of a moral ecology are
essential to the continued flourishing of individuals, families and the
common good, i.e. the good common to all.
10. Society and
the State must allow for the flourishing of the common good, and not
act in a manner detrimental to it.
Distinguishing among “Rights” Claims
11. The State
does not create fundamental rights but can only recognize them. Not all
claims to rights are universal and not all rights are fundamental.
12. Certain
particularist claims to “rights” are based on false premises and are
contrary to human dignity and the common good.
13. Modes of
behavior inherently harmful to the self and to the whole community,
premised on false anthropological principles or which use other human
beings as means to an end, cannot serve as the basis for rights, even
if a State makes a declaration to the contrary.
Distinguishing Claims to Rights based on Theories of Human Sexuality
14. There are two
sexes (or “genders”), male and female, which are rooted in nature.
These are not interchangeable or malleable without surgical and
psychological interventions that are contrary to human dignity.
15. Sex (or
“gender) is biologically determined from the moment of conception
(i.e., fertilization), and one’s sexual (or “gender”) identity is fixed
and objective.
16. The term
“sexual orientation”, properly understood, refers strictly to interior
predispositions and attractions to members of the opposite sex (the
normative orientation) or members of the same sex (the deviating
orientation).
17. By nature,
men and women are sexually complementary and attraction to the opposite
sex can be discerned as being in accordance with nature’s design.
18. All human
beings, by their nature, possess free will, and are capable of
restraining themselves from acting in a sexual or eroticized manner.
19. For the sake
of the common good, society and the State should affirmatively promote
a moral ecology conducive to human flourishing, recognizing that the
law has a normative role. For the State to encourage virtue and
discourage forms of behavior contrary to the common good is neither
arbitrary nor unjust.
20. Any society
or State, or any transnational entity, which promotes notions of
“rights” based on false theories of human sexuality, acts contrary to
the common good.
21. Under no
circumstances shall any society or State, or any transnational entity,
infringe upon rights that are universal and fundamental, in the name of
“rights” based on false theories of human sexuality.
22. Under no
circumstances shall any society or State, or any transnational entity,
seek to impose such false notions of “rights” upon sovereign nations
and their sovereign people. Any such act is a violation of
fundamental rights based upon universally valid principles.
Re-Affirmation of the Duties of Society and the State
23. Society and
the State have an obligation to uphold human dignity, affirm rights
that are universal and fundamental, promote the flourishing of
individuals and families, and refrain from acting contrary to the
common good.