Government’s lawyers accepted Monday that a persuasive argument had been made for the introduction of civil unions for same-sex couples in the Cayman Islands, though they suggested this should be left to elected politicians to decide rather than enforced by the courts.
Sir Jeffrey Jowell, QC, continued to present government’s case against the introduction of either same-sex marriage or civil unions by court order.
He said rewriting Cayman’s laws to allow for same-sex marriage was a “nuclear option” that should not be considered. He conceded that there was a persuasive case, under the constitution, that same-sex couples had a right to some kind of domestic partnership, conferring similar legal rights to marriage, but argued that the timing of this decision should be left to legislators to deal with.
Mr. Jowell made those remarks as he closed 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 and are asking the court to use its constitutional powers to amend the Marriage Law.
They argue that Cayman’s same-sex marriage ban violates their constitutional right to a private and family life, freedom of conscience and freedom from discrimination.
Mr. Jowell, representing the Cayman Islands government, has argued that a clause in the constitution which protects the right of couples of the opposite sex to marry effectively functions as a constitutional ban on same-sex marriage that buffers a similar provision in the Marriage Law.
Speaking Monday, he accepted that this argument may not be valid for civil unions or domestic partnerships. He argued that the European Court of Human Rights, whose rulings impact Cayman because of its constitutional relationship with the U.K., had never gone so far as to mandate same-sex marriage as an obligation for member states.
He added, “We fully agree that the European Court held that same form of legal protection or domestic partnership arrangement should be provided for same-sex couples.”
Despite that acknowledgment, he suggested the social conditions in the Cayman Islands were different to Italy and other European countries considered by the European court when it made that decision.
Referencing discussions at the time the Cayman Islands Constitution was drafted, he said there had been strong opposition to same-sex marriage. He suggested this extended to civil partnerships, though he acknowledged there was no evidence submitted to support this.
“The question for this court,” he said, “is to what extent the time is now right to declare that arrangements for same-sex unions should be implemented in the Cayman Islands, and to what extent that can be achieved within the bounds of the separation of powers.”
He said the constitution did not allow the judiciary to compel the elected government to introduce new legislation and suggested it would also be going too far for the court, as the couple’s lawyers have suggested, to request the governor of the Cayman Islands use his reserve powers to intervene.
He conceded that the court did have the power under the constitution to amend the Marriage Law, the principal request of the couple’s legal team. But he said this would be a “nuclear option” that would go beyond the bounds of judicial discretion and threaten the integrity of the legislature.
“I really think that would be judicial legislation of an unacceptable kind,” he added.
The basis of government’s case that the constitution does not allow same-sex marriage, is the “marriage clause” which protects the institution of marriage for “opposite-sex couples.”
Mr. Jowell acknowledged the marriage clause did not explicitly outlaw same-sex marriage, but said it was the “necessary implication” of the reference to “opposite sex.” He said other constitutional provisions, such as the right to freedom from discrimination, cannot take precedence over this clause. Asked to explain how it was not discriminatory to deny same-sex couples access to a right enjoyed by opposite-sex couples, he said it could be seen as justifiable differentiation rather than discrimination.
“There is differentiation. It is a constitutional differentiation that has huge force and great gravity,” he said.
Beginning his response to the points raised Monday morning, Edward Fitzgerald, QC, representing the couple, said Mr. Jowell had conceded that the European court’s judgment in the landmark case of Italy v Oliari had established civil partnerships as a minimum right for same-sex couples.
“As I understand his submission on this point, he is not seriously resisting the position that Oliari requires a legal structure such as civil partnerships and he is not seriously resisting the point that the requirements of the ECHR are minimum requirements,” Mr. Fitzgerald said.
He said there was no evidence to support Mr. Jowell’s contention that the “marriage clause” in the constitution banned same-sex marriage. He said his references to what was said during constitutional discussions were irrelevant compared to the words of the document itself.
The case was continuing Monday afternoon.