Chief justice to decide on same-sex marriage

From left, Chantelle Day, Edward Fitzgerald, QC, Vickie Bodden Bush and Ms. Day's mother Merta Day leave court Monday after the landmark hearing. - Photo: James Whittaker

Chief Justice Anthony Smellie will decide within the next few months whether the Cayman Islands ban on same-sex marriage should be overturned.

After three days of legal argument, Chief Justice Smellie retired to consider his decision late Monday afternoon. He did not give a time frame for when he expects to deliver his judgment on the controversial issue, though it is expected to be sometime within the next two months.

Lawyers for Caymanian Chantelle Day and her partner Vickie Bodden Bush have argued that the Cayman Islands constitution entitles them to equal rights to marriage as heterosexual couples.

“Time has been called on discrimination based on sexual orientation,” their advocate Edward Fitzgerald, QC, said as he concluded his submissions Monday afternoon.

“The dictates of our common humanity require the opening up of the institution of marriage to same-sex couples.”

The chief justice is being asked to make a ruling that the Cayman Islands Marriage Law, as written, is out of sync with freedoms guaranteed under the Cayman Islands Constitution. Mr. Fitzgerald urged him to use his powers under the constitution to amend the law to allow for same-sex marriage and bring it into balance with the constitution, which outlaws discrimination.

Ministers’ letter

Speaking on the final day of the hearing Monday, Mr. Fitzgerald also delivered a rebuttal to a letter submitted to the court by the Cayman Islands Ministers’ Association at the 11th hour. The letter was not read out in court and may not be accepted as evidence, given that the ministers are not part of the case.

Mr. Fitzgerald said it included the controversial claim that homosexuality is a choice and should therefore not warrant protection against discrimination. He said this claim was not supported by evidence and was, in any case, irrelevant, as sexual orientation is established as having protected status from discrimination.

He added that other arguments submitted by the ministers included that same-sex marriage posed a threat to public morality – an argument that was raised by the government’s legal team but not pursued during the three-day hearing.

“The authors of this memorandum have no exclusive ownership of public morality or the interpretation of its requirements. They do not even have exclusive ownership of what constitutes the proper Christian approach to the issue,” he said.

The legal status of the ministers’ memo is unclear and government’s own legal team appeared to disown the bulk of its content.

Sir Jeffrey Jowell, QC, who represented the Cayman Islands government, said his team had presented a case on the basis of fidelity to constitutional language and had “taken pains” not to make any “value judgments.”

He added, “We completely distance ourselves from that kind of approach and it doesn’t form any part of our argument.”

The arguments

The gist of the argument made by Mr. Jowell on behalf of the government is that the Cayman Islands constitution has a specific marriage clause, which protects the right of couples of the opposite sex to marry. He suggested this should be interpreted as an explicit exclusion of same-sex marriage that overrides other constitutional freedoms, including the right to private and family life and the right to freedom from discrimination.

He appeared to concede Monday that this argument could not be applied to civil partnerships, conferring similar rights to marriage. He accepted the European Court on Human Rights had indicated that legal protection of same-sex relationships was obligatory for member states, but said the court had never gone so far as to mandate same-sex marriage.

Mr. Fitzgerald said the European Court on Human Rights had established civil partnerships as a minimum standard, but he insisted Cayman’s constitution went further.

He said the islands’ constitution contained an “overriding right not to suffer discrimination” and urged the chief justice to rule that same-sex couples were entitled not just to civil partnerships but to full marriage.

He insisted the words of the Constitution do not outlaw same-sex marriage, but simply protect it as a right for opposite sex couples.

He said it was a “chilling and draconian” consequence of government’s claims that all future legislators would be denied the legislative freedom to introduce same-sex marriage. He said the thoughts of participants in the negotiation process, cited by Mr. Jowell to support his case that the intent was to ban same-sex marriage, were relevant only as a matter of historic interest.

“Those participants could not foresee the massive future development in the right to same-sex marriage and the potential reliance on other provisions of the Constitution,” Mr. Fitzgerald added.

Over the course of the hearing, Mr. Fitzgerald argued that his clients faced genuine problems, including uncertainty over Ms. Bodden Bush’s immigration status and succession issues concerning their adopted child. He said the Cayman Islands Constitution entitled them to a private and family life, freedom of conscience and freedom from discrimination, which he said added up to a right to access the institution of marriage.

After the case closed, the couple’s attorney Ben Tonner, QC, released a brief media statement on behalf of the couple and their legal team.

He wrote, “As we have stated in our written arguments to the Grand Court, there is dignity in the bond between two people, whatever their sexual orientation. This fact has been recognized time and time again by the highest courts across the common law world. The Petitioners have done no more than to ask the Grand Court to recognize and give effect to their fundamental right, as human beings, to dignity and equality of treatment. Chantelle and Vickie would like to thank everyone who has shown them kindness and support throughout the course of this case. We must now await the Chief Justice’s decision.”