Government’s lawyers claimed Friday that the Cayman Islands constitution explicitly prohibits same-sex marriage.
Speaking for the first time in the landmark case, Sir Jeffrey Jowell, QC, argued that the islands’ Bill of Rights was a “unique instrument” founded on the distinct history and Christian tradition of the territory.
He said it was “no mere mirror” of constitutions in other advanced democracies, and the freedoms it guarantees, including the right to freedom from discrimination, could not be used, as they have in other countries, to advance the cause of same-sex marriage.
He insisted the issue had been extensively debated during the drafting of the constitution and that the document strictly reserves marriage for people of the opposite sex.
Mr. Jowell was speaking Friday afternoon as he began government’s response to a joint judicial review and constitutional challenge brought by Caymanian Chantelle Day and her partner Vickie Bodden Bush. The two women are contesting government’s decision to refuse their application to marry in April of last year.
The couple’s case
Lawyers for the couple have highlighted the constitutional right to a private and family life, the right to freedom of conscience, and the right to freedom from discrimination as part of their case that same-sex couples should be allowed to marry. They cited precedents from across the developed world, referencing how similar clauses had been used in other jurisdictions to allow same-sex marriage.
Crucially, the couple’s barrister Edward Fitzgerald, QC, said the European Court of Human Rights had established civil partnerships, with similar legal rights to marriage, as the minimum acceptable standard for same-sex couples. The impact of the court’s rulings extend to Cayman because of its constitutional ties to the U.K.
The couple is seeking an order of the court amending Cayman Islands Marriage Law to allow for same-sex marriage. Failing that, they want, as a minimum remedy, a declaration from the court that the government must introduce civil partnerships.
Mr. Jowell, speaking on behalf of the government during the Grand Court hearing, before Chief Justice Anthony Smellie, said the Cayman Islands Constitution was different to the others cited.
He acknowledged that some sections, including those on the right to a private and family life, were almost identical, but he said Cayman’s was unique in that it has a section on marriage. He insisted that meant that interpretations of the other clauses should be ignored in deference to the marriage clause.
The clause in question, Section 14.1 of the Bill of Rights, states, “Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family.”
Mr. Jowell said that wording clearly barred same-sex couples from the right to marry in the Cayman Islands.
Mr. Fitzgerald, who presented the couple’s case for most of Thursday and Friday, preemptively rebutted that argument.
“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.
Mr. Jowell suggested this was a “far fetched” and “creative” interpretation. He said the issue had been “hotly debated” up and down the land in the run-up to the constitution and the words “opposite sex” had been inserted in the marriage clause with the express intention of denying same-sex couples the right to marry.
“It clearly intends not to sanction same-sex marriage in any form,” he argued.
He said there could be no doubt that the provision shuts out same-sex marriage in the same way as it shuts out “polygamy, bigamy and underage marriage” by stating that the protection of marriage applies to “unmarried” men and women of the “opposite sex” and of “marriageable age.”
“It gives the right to marriage with one hand, but takes it away with the other hand for these three classes of people,” he said.
‘The rock of our case’
Describing this clause as the “rock” on which government’s case was founded, he said it was “so clear” that there was no need to go “scuttling off” to look at other clauses in the constitution, such as the right to family life or the right to freedom from discrimination.
He said the extensive precedents cited from the U.K., U.S., Europe, South Africa and Bermuda, where courts have interpreted these clauses as permitting same-sex marriage, are irrelevant in this case because Cayman’s constitution, unlike the others referenced, has a specific marriage clause.
He said any ordinary person wanting to find out how marriage was defined in the Cayman Islands would run their finger down the table of contents, find the section for marriage, and exclusively rely on this provision for the answer.
“How can you contradict this by saying, ‘Hah! There is this other provision; there is a right to family life?’” he questioned.
Mr. Jowell relied on documents detailing some of the discussions in the run-up to the constitution as evidence that the people of the Cayman Islands, including the drafters of the document, had never intended to allow same-sex marriage.
“Of course, this issue generates passion and strong views but this case rests on fidelity to constitutional language,” he said.
Speaking earlier on Friday, Mr. Fitzgerald, representing the couple, said the presence of a specific right for opposite-sex couples to marry did not exclude the development of a similar right for same-sex couples.
He dismissed suggestions that what was said in the discussions running up to the drafting of the constitution had any relevance.
“It is no good saying they thought they were introducing an exclusionary clause, if they didn’t introduce an exclusionary clause,” he said.
The words of the document themselves were all that was relevant, he added.
Cayman not a ‘theocracy’
Mr. Fitzgerald also dismissed arguments that Cayman’s Christian heritage was an applicable factor in the case of a state-sanctioned marriage contract in a secular democracy. He said the right to freedom of religion must be protected, but government could not seek to promote the precepts of one particular faith to the law of the land purely on the basis that they were founded in religion. If they did that, he said, the island would be on its way to becoming a theocracy.
“We don’t live in a society where everyone shares the same religious beliefs.”
He added that marriage was an institution that had continually adapted to accommodate formerly oppressed classes, and tradition and religion could not be cited in defense of discrimination.
“The antiquity of prejudice is not a reason for its justification,” he said, citing a judgment from South Africa.
He added, “Even something as pernicious as [a ban on] inter-racial marriage was supported by some people based on religion.”