Denying marriage rights to same-sex couples is “simple discrimination” and violates rights guaranteed under the Cayman Islands Constitution, a leading barrister claimed Thursday as a test case on the issue began in Grand Court.
Caymanian Chantelle Day and her partner Vickie Bodden Bush are bringing a joint judicial review and constitutional challenge contesting government’s decision to refuse their application to marry in April of last year. The case, before Chief Justice Anthony Smellie, began in front of a packed public gallery that included supporters of same-sex marriage, as well as its most vocal political opponent, legislator Anthony Eden.
Edward Fitzgerald, QC, has been recruited to represent the couple, while government has hired Jeffrey Jowell, QC, to fight its corner.
In his opening argument, Mr. Fitzgerald said his clients, who have been in a committed relationship since 2013 and have a 5-year-old daughter, legally adopted in the U.K., had been “beset with problems” because of the Cayman Islands government’s refusal to allow them to marry, or at least formalize their partnership through a civil union.
For example, he said, Ms. Bodden Bush, a joint Honduran and U.K. national, has no official immigration status in the islands as her partnership with Ms. Day is not legally recognized. Equally, their relationship with their child is not recognized by the state.
Though they are a family unit living in the Cayman Islands, the state treats them as “legal strangers,” he said denying them a suite of rights on issues relating to succession, immigration, insurance and adoption.
Mr. Fitzgerald said not allowing them to marry and enjoy the same rights as couples of the opposite sex, violates their right to family life and their right to freedom of conscience – fundamental freedoms guaranteed by Cayman’s Bill of Rights.
“Most important, it constitutes unjustified discrimination on the grounds of sexual orientation,” he added.
He said his clients had taken legal action reluctantly after Ms. Day had reached out to the premier and governor as far back as September 2017 to ask them to change the territory’s laws.
Reading from Ms. Day’s letter, he said she had unequivocally urged government to act to introduce same-sex marriage or, at the very least, civil partnerships – something he described as the “irreducible minimum” required of countries that sign up to the European Convention of Human Rights, which includes Cayman through its constitutional relationship with the U.K.
Ms. Day wrote, “I am proud to be Caymanian, but made to feel an outcast and a second-class citizen in my own country.
“The message from Cayman is you can love who you want, but if they are of the same sex, be quiet and don’t expect to be treated the same.”
Though the governor, at the time Helen Kilpatrick, did engage in correspondence with the couple and even made a speech urging the government to adopt legislation on civil partnerships, Mr. Fitzgerald said the premier, Alden McLaughlin, did not respond at all and nothing was done.
Mr. Fitzgerald said the case of Italy v. Oliari, settled by the European Court in 2015, had established civil partnerships as the “irreducible minimum right,” but Cayman’s constitution goes further and, if properly interpreted, should be seen as affording same-sex couples equal marriage rights.
Government’s legal team did not speak Thursday morning in the opening of what is expected to be a three-day hearing, but Mr. Fitzgerald gave a preview of their arguments, based on their written submissions.
He accused the government of “hollow words” and “crocodile tears” in their written claims of respect for the status of his clients’ relationship.
He said the government’s written submission suggested it would seek to argue that allowing same-sex marriage threatened “public morality,” but he claimed they had provided no evidence to support this. He added that the argument included a “vague reference” to the Cayman way of life and an argument that Cayman’s special “culture and heritage” should make it exempt from the European Court’s ruling that member states should be obligated to provide a framework to confer legal rights on same-sex relationships.
He said none of these arguments were relevant to a secular constitution and it was “simply impossible” to find “anything other than prejudice” in the arguments against same-sex marriage.
Refuting suggestions that Cayman’s constitution specifies that marriage should be between a man and a woman, he said the document simply states that nothing can be done to interfere with the rights of men and women to marry.
“It says you can’t take away the right of people of the opposite sex to marry. It doesn’t say you can’t add the right of other people to enjoy those rights,” he said.
The case was continuing Thursday afternoon and is expected to conclude Saturday. At that point, Chief Justice Smellie will adjourn to consider his judgment which will be delivered at a later date.