A same-sex couple has filed a legal challenge to the Cayman Islands ban on gay marriage.
Chantelle Day, a Caymanian lawyer, and her partner Vickie Bodden Bush, a nurse from the U.K., have filed for a Judicial Review of government’s decision to refuse their application to marry.
If successful, the suit would force the Cayman Islands to follow changes that have occurred in many countries in recent years, giving same-sex couples equal access to marriage.
In a writ filed Wednesday with the Grand Court, lawyers for the couple argue that the section of Cayman’s Marriage Law, which defines marriage as between “one man and one woman,” is incompatible with various rights guaranteed under the islands’ Constitution.
They argue that the Marriage Law has to be modified and re-interpreted in light of the Cayman Islands Bill of Rights, which guarantees the right to private and family life, the right to freedom of conscience and the right to non-discrimination.
The two women are seeking a declaration from the court that the decision to refuse their marriage application was unlawful and that they are entitled to be married in the Cayman Islands.
According to court documents, Ms. Day and Ms. Bodden-Bush are in a committed relationship and have an adopted child together. They chose to live in London because of the lack of protection for same-sex couples in the Cayman Islands, but now wish to return to the territory to live, work and be married.
Ms. Day wrote to Premier Alden McLaughlin in September 2017, stating the couple’s intent to marry and urging him to “end discrimination on grounds of sexual orientation and avoid litigation.”
In April 2018, in the absence of any response, the couple flew to the Cayman Islands and applied to the Government General Registry for a license to marry.
The application was refused.
Now they are asking a judge to review and reverse that decision on the grounds that it violated fundamental rights guaranteed through the Constitution.
Law firm McGrath Tonner, which represents the women, indicates in the court filing that the legal definition of marriage as between people of the opposite sex only is unsustainable in light of the couple’s right to protection from discrimination.
The writ argues that it is self evident that the couple is being discriminated against on the grounds of sexual orientation.
It states: “Their relationship being a homosexual relationship was the reason why it was not solemnized as a marriage in the Cayman Islands. As a consequence they are denied the same rights and responsibilities as heterosexual couples.”
It adds that the Marriage Law as it stands denies same-sex couples numerous legal rights that flow directly and exclusively from marriage, including immigration, adoption, property ownership, healthcare and pension rights.
According to the writ, the Constitution has supremacy over other laws, which are required to be interpreted with “such modifications, adaptations, qualifications and exceptions as may be necessary” to conform with that document.
In effect, the lawyers argue, that the registrar could and should have construed the Marriage Law as allowing same-sex unions and approved the couple’s application.
They also argue that the Marriage Law should be modified to explicitly redefine marriage as a union between two adults, without specifying sex.
The writ indicates that the right of same-sex couples to a legally recognized civil union is guaranteed by the European Convention on Human Rights, of which Cayman is a signatory through its territorial relationship with the U.K.
But it suggests this is a “minimum standard” and that Cayman’s courts should go further and allow full and equal access for same-sex couples to marriage.
Denying the applicants the right to marry on the basis of their sexuality is “as justifiable as denying marriage based on the color of a couple’s skin,” the writ states.
“This discrimination will not and cannot be remedied by same-sex civil partnerships.”
It adds that Cayman Islands residents are entitled to the same rights as other British citizens, pointing out that the U.K. and the vast majority of its territories have legalized same-sex marriage.
“United Kingdom citizens have access to same-sex marriage almost from pole to pole from Antarctica to Shetland and around the equator from Pitcairn to Ascension via the Indian Ocean territory. It is incumbent on the respondents to state why the Cayman Islands ought to be different, why they alone may deny marriage to same-sex couples.”
The court filing also argues that there is no scope for a defense of a ban on same-sex marriage on religious grounds.
“The applicants are entitled to complain that their belief in same-sex marriage as an institution deserves legal protection … they have established that those fundamental rights have been violated and there can be no religious justification for this curtailment.”
The Governor, the Deputy Registrar of the Cayman Islands Government General Registry and the Attorney General of the Cayman Islands are listed as respondents in the suit.