Cayman Islands Government declines to hold Referendum on same sex marriage: but UK Minister warns that continued discrimination puts the Cayman Islands in breach of its legal obligations

After a debate held on 6 October 2016, the Cayman Islands Legislative Assembly has voted along party lines against a motion that sought to hold a Referendum on whether the British Overseas Territory should legislate in favor of same-sex marriages.

All nine government members opposed the motion, while all opposition party and independent members supported it.

The final vote was 9-8 against.

As reported by the Cayman Compass, Cayman Islands Premier Alden McLaughlin has said that it is the Cayman Islands government’s view that Cayman legislators would not approve changes to the local Marriage Law, which defines marriage as the union of one man and one woman.

Earlier in the week, the Cayman Islands had been given “assurances” by the UK’s Overseas Territories Minister, Baroness Joyce Anelay, who spoke in the Legislative Assembly during the course of a visit to the Cayman Islands, that Britain would not “force” Cayman to change its law or constitution regarding same-sex marriages.

During her address to the Cayman Islands Legislative Assembly, Baroness Anelay said, “The British government has no plans to impose same-sex marriage in the Cayman Islands. However, I want to be clear that continued discrimination puts the Cayman Islands in breach of its legal obligations, so there is a legal imperative to change.”

As I have previously mentioned in a Blogpost, it is hard to understand why the United Kingdom is not, itself, in breach of its legal obligations, by failing to ensure that all British Overseas Territories facilitate legal recognition of same sex relationships: if a case were ever pursued to the European Court of Human Rights, the Respondent would be the Government of the United Kingdom itself, not the Governments of Bermuda or the Cayman Islands.

And it is hard to see what conceivable defences could be advanced by the UK at that stage, given Baroness Anelay’s own ‘admissions’; the fact that same sex marriage and same sex partnerships are legally allowed in the UK; and the ECHR’s previous rulings in cases such as Oliari v Italy.

The most that might be said, I suppose, is that the British Overseas Territories should be afforded a ‘margin of appreciation’ in each case, depending on their socio-economic-political conditions, whereby they are allowed an extended period of time to prepare for the inevitable.

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