From Dr Leonardo Raznovich.
Notice of appeal: The Notice of Appeal to the Immigration Appeal Tribunal (the ‘IAT’) was filed last week, on Monday 21 September. In this regard, the process that follows requires the IAT to request the Immigration Department to provide an appeal statement detailing the reasons for the decision of its Business Staffing Plan Board (the ‘Board’) of 27 August 2015 when the Board rejected the application of my spouse to add me to his work permit as his dependant.
The Immigration Department is required under the Immigration Law to respond within 28 days detailing the reasons for its decision and the materials considered by it. The deadline for the response is 19 October. Upon receiving and considering the response, detailed grounds of appeal will be submitted, in accordance with the relevant provisions of the Immigration Law.
IBA conference: The International Bar Association is holding its annual conference in Vienna, Austria, during the course of next week. This is the largest legal conference in the world and will be attended by legal professionals, academics, amongst others. I have been invited to present our case in the Cayman Islands. My presentation will take place on Thursday 8th October and will cover two aspects: (1) the UK’s role and responsibilities in regards to the Cayman Islands, with focus on the breach by the Cayman Islands of its local laws and its international obligations under the ECHR, in particular, in relation to incitement to sexual hatred and violence against LGBT people of the Cayman Islands; and (2) possible consequence for the Cayman Islands in not swiftly rectifying its violations of the rule of law – both of its domestic laws and its international obligations.
Statement by churches dated 17 September 2015: I should like to say a few words in relation to the statement. One important caveat: I am not going to enter into a theologian discussion as to the validity of the assertions contained in the statement. I respect the statement as a religious statement and I defend the right of this church, or any religious denomination, to make assertions of any kind provided that those assertions are not in breach of the law.
The first comment is to highlight the obvious: the assertions are religious assertions; they are not legal assertions. Under Christianity it is sinful to eat shellfish. Under Jewish law it is sinful to eat pork. Nobody expects the Cayman Islands government to ban the sale of shellfish or pork in local supermarkets any time soon. This is simply because when it comes to food and health and safety the Government does not follow religious scripture or interpretations thereof by religious leaders. It respects freedom of choice and does not seek to impose a structure or approach on society that is reflective of any one religious denomination. This is notwithstanding its complicity in the commission of perceived sins under those religions. If religious considerations are not used (and rightly so) to support policies and laws that protect Caymanians from committing sins in an act that we must perform daily to ensure our very existence (i.e. the consumption of food), it is difficult to understand why religious considerations should be used to support policies or laws in matters in which our lives are not at stake; I would assert that far greater numbers of people fall ill or die through the consumption or non-consumption of food, rather than through participation or non-participation in safe sexual acts.
Secondly, the Church of God (similar to Mr Anthony Eden in August at the Legislative Assembly) seems fixated with the need to affirm heterosexual marriage. The constitution of the Cayman Islands defines marriage; any inferior legislation, let alone religious statement, will add nothing to change the constitution. If the statement adds nothing, why is there a need to make it? The real intention in lobbying the government therefore has to be found somewhere else. From the text of the statement, the Church of God’s intention seems to attempt to perpetuate the current state of segregation against the LGBT people of the Cayman Islands. This has nothing to do with religious beliefs or marriage but it is simply and bluntly an attempt to maintain illegal discrimination of LGBT Caymanian nationals who want to live a full and open life according to their own sexuality or preferences in their own homeland.
Thirdly, I appreciate the endorsement the Church of God seems to be making with its statement of an aspect of my public lecture delivered last January, in which I argued that the problem of Christianity was with sexuality rather than with homosexuality. The Church of God by stating ‘that morally appropriate sexual behaviour is defined by Scripture as being that sexual intimacy which is practised between an adult man and adult woman who are married to each other’ provides a vivid example that masturbation, sexual intercourse outside of marriage and non-vaginal intercourse are all, together with homosexuality, sinful activities. LGBT Caymanians can at least celebrate this statement in that hell is not just for them: straight Caymanians who participate in any of the foregoing acts will join them on the Day of Judgment.
Finally, there are various flaws with serious legal ramifications in the statement. I’ll address three of them. One of those flaws is that the statement purports to express an absolute position on the matter of marriage. Paradoxically, from the legal perspective, such an extreme position has the potential of undermining religious freedom, which the Church of God needs in order to keep preaching against of its own Caymanian LGBT people. The fact is that there are other Christian churches around the world whose views are as worthy as those of the Church of God; yet on the issue of same sex marriage their views differ completely. For example, the Presbyterian Church, the Evangelical Lutheran Church of America, the Episcopal Church, the United Church of Christ are all examples of Christian churches that have allowed same-sex couples to get married, some of them since 2005.
A second flaw relates to the Church of God’s attempt to define a family. The Church of God seems to understand a family as ‘natural…group unit [with] the ability to procreate as well as nurture offspring within the family unit in accordance with the natural order among heterosexual mammals.’ This definition is under inclusive, over inclusive and flawed as a matter of law. Firstly, it leaves outside of its definition mono-parental families, i.e. single mothers and fathers. It also fails to explain what policies the Church of God has in place to prevent celebration of marriages between heterosexual couples that are unable to procreate ‘in accordance with the natural order among heterosexual mammals’ (e.g. because of incurable fertility problems or simply age). As a matter of law, the statement is flawed because the legal right of same-sex couples to respect for their family life is protected under the European Convention on Human Rights (Schalk & Kopf v. Austria (ECtHR, 24 June 2010, para. 94)) by which the Cayman Islands is bound.
A final flaw that I should like to highlight is the apparent attempt to defend ‘hate speech’ by rejecting the classification as such of statements whose very purpose is not to object to a particular behaviour or lifestyle but rather to strike an attack on the personhood of the practitioners. There is nothing wrong with a statement whose purpose is simply to object to homosexuality, masturbation or anal sex. As there is nothing wrong with a statement whose purpose is to object to eating shellfish or pork. This is because we live in a society in which the freedom of speech is a fundamental part of it. However, statements that equate homosexuality, with criminal behaviours (e.g. bestiality, paedophilia etc.) or that contain personal threats of violence towards homosexuals (as those made by Anthony Eden in the Legislature Assembly) are not simply a matter of objection to same sex practices. They are statements, which encouraged the breach of human rights, sexual hatred and violence against LGBT people. Admittedly, it is a distinction that one may find difficult to see, particularly for those with very strong views, but it is a very real distinction. Furthermore, failure to appreciate the distinction may lead to great harm to society. This is why these statements may potentially constitute the commission of criminal offences under the laws of the Cayman Islands contrary to, inter alia, section 88B of the Penal Code (2013 Revision) of the Cayman Islands, for which religious beliefs are not a defence. More fundamentally, such statements only serve to segregate society and lead to mental and even physical harm to individuals that are simply trying to live a peaceful and open life with their loved ones in the place they consider as home.