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.

1 COMMENT

  1. Cheers to Ms. Day and Ms. Bush, and to their fine attorney Mr. Tonner, QC. The subject of this case — recognition and performance of same-sex marriage — is long overdue for being brought into the modern era by Cayman. And, seeing as Cayman’s political leaders apparently have no backbone for doing the job at the legislative level as they should — instead kowtowing to bigoted constituencies — it appears that the court is the default method.

    This is not rocket science. A person loves who he/she loves. It’s not for anyone else to approve or disapprove that love, be it opposite-sex or same-sex. It IS for all of us to recognize other people’s unions and accord them equal respect and equal legal rights. Sooner or later — hopefully sooner — controversy about this subject will pass into history, and people will wonder why there was all the fuss. Cayman will survive, and those who are straight will realize that what does or doesn’t go on in the homes of their neighbors — including their gay neighbors — is none of their business. As is always the case, if people would just mind their own business, everyone would get along a lot better in the world.

    • Good comment…until I reached “what does or doesn’t go on in the homes of their neighbors — including their gay neighbors — is none of their business” part. It gives the entire comment a disapproving tone.

      • I understand the broad statement by Mark Riviera can be taken out of context, but clearly, his intent was to say “that what goes on in people’s BEDROOMS is their own business” — and he absolutely correct!

  2. Sorry, but your interpretation is even worse.
    So love is love and family is family, until we get to the “bedroom” thing. We all know what happens in straight people bedrooms, but we should mind our own business when it comes to gay people bedrooms? Because??? Because we accept gay unions now, but not what they do in their bedrooms? Isn’t it kind of condescending?

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