Same-sex marriage legalised in Cayman

UPDATED MARCH 31: “Love wins,” was the brief but significant statement from Caymanian Chantelle Day as she left Grand Court Friday having successfully won a legal battle to rewrite Cayman’s marriage laws.

Same-sex marriage is now legal in the territory following the delivery of Chief Justice Smellie’s landmark judgment.

The decision, which was met by applause from around 80 people who packed into Courtroom 5, follows a petition by Day and her partner Vickie Bodden Bush.

The couple, who have been in a committed relationship for seven years and have an adopted daughter together, brought a joint judicial review and constitutional challenge after government refused their application to marry in April last year.

Chief Justice Anthony Smellie ruled on Friday that the decision was discriminatory. He said preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman’s constitution, including the right to a private and family life.

Chief Justice Smellie used his powers under the Constitution to rewrite the Marriage Law. He ordered that the clause in the law, specifying that marriage is reserved for heterosexual couples, be altered to state, “‘Marriage’ means the union between two people as one another’s spouses.”

The amendment comes into effect immediately and does not require ratification by the Legislative Assembly or the governor.

The chief justice said it was the court’s duty to intervene to modify laws that did not comply with the constitution, particularly in cases where the state had failed to act.

“The petitioners and their daughter are entitled to the indignities to which they have been subjected being put to an immediate end by the court,” he said.

He said the decision did not threaten traditional marriage, suggesting that the institution was actually strengthened by the inclusion of same-sex couples.

Day shed a tear as the decision was announced and the couple were embraced by a large crowd of well-wishers. Her partner, Bodden Bush, gave a peace sign to the waiting cameras as the couple left the court.

Day said of the judgment, “It shows that love wins and I am really happy that the right result was received today.”

There was no immediate word on whether government plans to appeal the ruling.

Attorney General Samuel Bulgin described the judgment as “very interesting”.

He told reporters as he left court, “Understandably, the government will have to take some time to consider it and think about how to move forward.”

Premier Alden McLaughlin did not respond to requests for comment on Friday.

The couples lawyer Ben Tonner, QC, released a brief statement later on Friday, saying: “Chantelle and Vickie are delighted that their relationship has been recognised at long last. The Chief Justice’s decision demonstrates in unequivocal terms that the rule of law and the democratic values of human dignity, equality and freedom are alive and well in the Cayman Islands.”

The judgment

Chief Justice Smellie read out a 38-page summary of his lengthy legal judgment Friday.

He dismissed government’s argument that Section 14 (1) of the constitution, which enshrines the right to marry for opposite sex couples, can be interpreted as a blanket ban on marriage for same-sex couples.

He agreed with the couple’s contention that failing to allow them equal access to marriage breached their right to a private and family life, among other basic human rights.

“By its ongoing refusal to recognise and respect these rights of the petitioners, the state has been and remains in violation of their rights,” he said.

The chief justice added that the amendment to the Marriage Law, introduced in 2008, to specifically define marriage as exclusively between a man and a woman, had imposed “indignity, inequality of treatment and inequality of legal status upon same-sex couples”.

Since the passage of the Constitution, he said, this clause of the Marriage Law had been out of sync with the fundamental rights guaranteed to all Cayman Islands residents.

He added that tradition and religion could not be used to deny rights to same-sex couples.

“No justification has been established to sustain this severe form of discrimination.

“The possible desires of the heterosexual majority to maintain a perceived tradition of marriage of its liking or to impose dominant religious beliefs on the homosexual minority, cannot, as the extensive survey of the case law has shown, constitute valid justification.”

He said the failure to provide for legal recognition of same-sex relationships also violated the right to freedom of conscience, the right to freedom from discrimination, and numerous other rights under Cayman’s constitution. He accepted the couple’s argument that government’s failure to amend the law to bring it in line with the Bill of Rights meant that it was the court’s duty to modify the law.

The couple’s story

Outlining the background to the case, he said Day, who was born and raised in the Cayman Islands, and Bodden Bush, originally from the Bay Islands in Honduras but with deep roots in Caymanian society, had met and fallen in love in the Cayman Islands. They left the islands between 2014 and 2018, in part because of Bodden Bush’s “tenuous immigration status” and the lack of a mechanism in Cayman for their relationship to be recognised.

They got engaged in 2017 and decided to move back to the Cayman Islands and try to marry in Day’s home country.

Citing Day’s evidence to the court, Chief Justice Smellie said she had attested, “It would be demoralising to have married abroad and have to return to Cayman to fight for our marriage to be recognised.”

He said they had written to the premier and governor on several occasions in an effort to have their relationship recognised without going to court.

“By any objective measure, it must be regretted that such efforts at finding a non-litigious solution did not bear fruit,” the chief justice said.

When their appeals fell on deaf ears, the couple applied in April last year for the right to marry, which was refused by the deputy registrar of the Cayman Islands on the grounds that they are of the same sex. In July last year, they appealed that decision to the courts.

The trial

During a three-day trial in February this year, lawyers for the couple 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 United Kingdom. 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.

Government defended the same-sex marriage ban, claiming it had always been the intention of the constitution to preserve marriage for heterosexual couples. Jeffrey Jowell, QC, acting for the government in the case, argued that the islands’ Bill of Rights was a “unique instrument” founded on the distinct history and Christian tradition of the Cayman Islands.

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.

The final word

The chief justice dismissed the government’s argument, saying it had “not and cannot justify the discrimination” in treating same-sex couples differently because of their sexual orientation.

He added, “It is to be hoped, perhaps even more fervently, that our constitutional democracy will itself have been strengthened by the affirmation of a state’s obligation to respect the fundamental rights and, in doing so, to preserve the crucial balance between different aspirations and ideals which might otherwise be at tension in society.”

Petition

Opponents to the change in the Marriage Law have launched an online petition, which calls for the government to put the marriage definition matter to a people-initiated referendum.

By Sunday afternoon, 2,760 people had signed the change.org petition.

ORIGINAL FRIDAY, MARCH 29: Same-sex marriage is legal in the Cayman Islands after a landmark judgment in Grand Court Friday morning. Chief Justice Anthony Smellie ruled that the definition of marriage as between a man and a woman was unconstitutional and violated multiple rights.

He ordered that the local law be changed to reflect that same-sex couples are allowed equal access to marriage as heterosexual couples.

His ruling followed a petition by Caymanian Chantelle Day and her partner Vickie Bodden Bush.

As she left the court Friday, Day said of the judgment, “It shows that love wins and I am really happy that the right result was received today.”

Around 80 people were present in the courtroom for the ruling, with many applauding after the chief justice issued his ruling.

Chantelle Day, left, and Vickie Bodden Bush, with their legal team outside court last month.

Day and Bodden Bush brought a joint judicial review and constitutional challenge after the government refused the couple’s application to marry in April last year.

Chief Justice Smellie ordered in his ruling that section 2 of the Marriage Law be changed to state “‘Marriage’ means the union between two people as one another’s spouses.”

He stated: “This Court is … bound not to allow the violation of the Petitioners’ rights to continue without redress. The Constitution, in its mandatory requirement that the Law be brought into conformity, must prevail. The Petitioners and their daughter are entitled to the indignities to which they have been subjected being put to an immediate end by the Court.”

The couple’s attorney, Ben Tonner, issued this statement after the ruling: “Chantelle and Vickie are delighted that their relationship has been recognised at long last. The Chief Justice’s decision demonstrates in unequivocal terms that the rule of law and the democratic values of human dignity, equality and freedom are alive and well in the Cayman Islands.”

Attorney General Samuel Bulgin described the judgment as “very interesting”.

He told reporters as he left court, “Understandably, the government will have to take some time to consider it and think about how to move forward.”

For more on this story, see Monday’s Cayman Compass.

3 COMMENTS

  1. I have one question ok maybe a few…. to all those who are opposing the latest ruling to the same-sex marriage. If it is such a sin…

     how is that any different from all of our god loving seamen who went abroad and bedded different women  who were not their wives to whom they were in a heterosexual marriage

     how is that different from all those god loving Seaman who went abroad and fathered children outside of that marriage

     how is that different from sleeping with his brother’s wife

     how is that different from having children out of wedlock or while that husband was away.

    Just asking.

  2. Lucy…Agreed, it’s all sin. However, God has specifically identified marriage as the union of one man and one women and has given marriage special importantance to family and society. Same sex unions are not marriage in God’s eyes.

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