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.