A same-sex couple contesting Cayman’s marriage laws have passed the first hurdle in their legal challenge.
Chantelle Day, a Caymanian lawyer, and her partner Vickie Bodden Bush have been granted leave to apply for a judicial review of the Cayman Islands government’s decision to refuse their application to marry.
After a brief hearing Wednesday, Chief Justice Anthony Smellie decided their case was strong enough to proceed to a full judicial review hearing.
All such cases must breach that first barrier before the court will consider the merits of the respective arguments in detail. After reviewing preliminary arguments filed by Ben Tonner, QC, on behalf of the couple, Chief Justice Smellie said, “For the purposes of leave to apply for judicial review, your application is well based and I accede to it.”
No one from the Office of the Attorney General appeared at the hearing.
The decision means the Cayman Islands will get a test case trial on the rights of same-sex couples to marry in the territory.
Ms. Day and Ms. Bush, who have been in a relationship for six years and have an adopted child together, are seeking a declaration that the decision of the deputy registrar to deny their application for a marriage license was unlawful and that they are entitled to be married in Cayman.
In a writ, filed with the Grand Court in June, lawyers for the couple argued that the Cayman Islands Constitution protects them from discrimination.
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 deputy 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 section of Cayman’s Marriage Law that defines marriage as between “one man and one woman” is incompatible with various rights guaranteed under the islands’ Constitution and should be modified.
During Wednesday’s hearing, Chief Justice Smellie indicated that the plaintiffs may be required to file a separate writ with the Grand Court, using the vehicle of a constitutional challenge rather than a judicial review, to have that aspect of the case considered.
Ultimately, both arguments would be combined in one hearing. No indication was given of when a trial may take place.