Since Chief Justice Anthony Smellie’s ruling on same-sex marriage was released Friday, there has been debate across the islands about the issue and what happens next.
Here we break down what the judgment says and what it means for Cayman, and try to answer some of the key questions that emerged in its aftermath.
What did the judgment say?
Chief Justice Smellie ruled on March 29 that it is unlawful and discriminatory for the Cayman Islands government to prevent same-sex couples from getting married.
He ruled that the Marriage Law, which explicitly defines marriage as between a man and a woman, should be amended to reflect that couples of the same sex are also allowed to marry.
He said the Bill of Rights entitled everyone in the Cayman Islands to the right to a private and family life and the right to freedom from discrimination.
What prompted the ruling?
Caymanian Chantelle Day and her partner Vickie Bodden Bush filed a joint judicial review and constitutional challenge after they were refused a marriage licence in April last year. The couple, who have been together for seven years and have an adopted daughter, want to get married and raise their family in Cayman. Lawyers acting for the couple successfully argued during a three-day hearing held in February that preventing them from doing so breached their rights under the Cayman Islands Constitution, in particular sections 9, 10 and 16 of the Bill of Rights.
So can same-sex couples get married now?
Yes. The chief justice used his powers under the Constitution to edit the Marriage Law.
Section 2 of the law, which stated, “Marriage means the union between a man and a woman as husband and wife” has been changed by his order to “‘Marriage’ means the union between two people as one another’s spouses.”
The law is now changed and the registrar must give it immediate effect. No ratification is required by the Legislative Assembly or by the governor.
Wait, the courts can just change the law like that?
When a law, passed before the commencement of the Constitution, does not comply with the Constitution, then yes, the courts can change it directly. Section 5 of the Constitution Order states that existing laws, which predate the introduction of the Constitution, must be read and construed with such modifications as are necessary to bring them into conformity with the Constitution and the Bill of Rights.
In his judgment, the chief justice said the legislature could have ensured compatibility between the Marriage Law and the Bill of Rights by amending the law itself or, at a minimum, by introducing a law for same-sex civil unions but failed to do so.
He said this clause of the Constitution was a “check and balance” that allowed the courts to address past actions or current inactions of the local legislature, when they resulted in breaches of rights guaranteed by the Constitution.
But doesn’t the Constitution define marriage as between a man and a woman?
This is what government tried to argue at trial, but the court ruled that it does not.
Section 14 (1) of the Constitution 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.”
Sir Jeffrey Jowell, QC, who was a consultant during the constitutional talks and presented government’s case at the hearing in February, said this clause was “the rock” of government’s case and amounted to an exclusion of same-sex marriage.
Edward Fitzgerald, QC, representing Day and Bodden Bush at trial, said the clause simply protected the rights of opposite-sex couples and had no impact on the issue of same-sex marriage.
“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.
Chief Justice Smellie accepted that argument in the ruling, stating that the clause was not exclusionary.
But people thought they had voted on this when they passed the Constitution, right?
Jowell attempted to make this argument in court, too. He said the issue had been “hotly debated” up and down the land in the run-up to the referendum on the adoption of the 2009 Constitution and Bill of Rights, 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. Fitzgerald rebutted this, saying the words of the Constitution, rather than supposition about what people thought at the time, were what the court had to rely on.
“It is no good saying they thought they were introducing an exclusionary clause, if they didn’t introduce an exclusionary clause,” he said. The chief justice accepted this argument, stating, “It cannot suffice for a blatantly discriminatory construction to be advanced simply on the basis that that is the clear intention of those who took part in the constitutional negotiations.”
Where in the Constitution does it say people of the same-sex can get married?
The key sections of the Constitution cited in the judgment were Section 9, which guarantees the right to a private and family life and Section 16, which guarantees freedom from discrimination.
Citing numerous judgements from across the developed world, including a ruling of the European Court of Human Rights, which is relevant to Cayman because of its constitutional relationship with the U.K., the chief justice said it had been established that the “right to a private and family life” included the right of couples of the opposite sex to register their relationships and have their rights protected by the state.
Section 16, which deals with freedom from discrimination, provides that it is unlawful for the state to treat people differently because of their status, in this case sexual orientation, according to the Chief Justice’s ruling. In other words, it provides that they have the same rights to marriage as heterosexual couples.
Section 10, which deals with freedom of conscience – in this case, the right to believe in and partake in marriage regardless of sexual orientation or religious belief – was also cited in the judgement.
What rights are same-sex couples denied by not being able to get married?
Marriage brings with it a legal recognition of a relationship and of a family. A number of rights derive from it in relation to immigration status, property, inheritance, the right to discuss medical care in the case of an illness and so on.
Crucially in this case, it also impacts the rights of the couple in relation to their adopted child. Chief Justice Smellie said the couple and their daughter were each entitled to be recognised as being legally connected to the other two. Without an option to marry, same-sex couples are effectively treated as ‘legal strangers’.
Why did the court opt for full marriage rather than civil partnerships?
In theory, the Cayman Islands could have allowed same-sex couples to register their relationships and access the legal rights associated with marriage by introducing civil unions but they did not do so.
Though the chief justice is entitled under the Constitution to amend existing law (passed before the introduction of the Constitution), that power does not extend to writing new legislation.
Therefore, there was no option for him to introduce civil unions directly. He decided that the only option to ensure that same-sex couples’ right to a family life was protected was to change the Marriage Law. His ruling also indicated that the Constitution outlaws discrimination on the grounds of sexual orientation, so it is not clear that introducing civil unions, similar but not equal to marriage, would have been enough to clear this hurdle.
What about Cayman’s Christian heritage and traditions? Isn’t that enshrined in the Constitution?
While the Constitution is prefaced with a reference to the islands’ Christian heritage, and religious freedom and tradition are protected by the Bill of Rights, the court ruled that it is not lawful for the Christian majority to impose its interpretation of that religion’s views on the rest of the population through law.
The chief justice cited a judgment on the same issue from the Constitutional Court of South Africa, which pointed out that religion had been used as justification for slavery, bans on inter-racial marriage and colonialism among other laws and institutions now regarded with shame and disdain.
He said tradition, too, could not justify a ban on same-sex marriage.
“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.
“All sorts of iniquities have existed in the name of tradition. Tradition alone cannot form a rational basis for a law, nor for the promotion and maintenance of a discriminatory legal system of rights.”
Can the people or the government change this decision, either through a referendum or through new legislation?
This is not spelled out in the judgment but the Cayman Compass understands that the only avenue for politicians or protesters who want to reverse this decision is for government to appeal, first to the Court of Appeal, then to the Privy Council in London. The likelihood of success here is considered marginal based on the extensive case law in the U.K. and Europe that was cited in the chief justice’s judgment.
What about a people-initiated referendum?
An online petition is circulating calling for a people-initiated referendum but this approach appears to be a nonstarter. In the first place, for a petition for a referendum to be valid, it must be a written petition with verified signatures from more than 25 percent of the electorate. However, even if protesters were able to raise such a petition, the Constitution does not permit referenda on issues where human rights could be impacted.
Section 70, which deals with this issue, states that government can be compelled to hold a referendum only on “matters of national importance that do not contravene any part of the Bill of Rights or any other part of this constitution”.
Can legislators change the Constitution to explicitly prohibit same-sex marriage?
They could try, but as the Constitution was passed by Order in Council from the U.K., it would require the approval of the U.K. Parliament to alter it.
Will churches or marriage celebrants be forced to perform same-sex marriage ceremonies?
In terms of religious ministers, it appears not.
While the chief justice amended the Marriage Law in respect of who can and cannot get married, he did not amend Section 8 of the Marriage Law which states, “No minister of religion who is a Marriage Officer shall be required to act as a Marriage Officer with respect to any marriage which is contrary to the rules of the religious denomination to which he belongs.”
The picture is less clear for civil registrars. Legal sources told the Compass they believed such officials may well be compelled to sanction such ceremonies because they are officiating civil rather than religious ceremonies. If a civil registrar were unwilling to officiate a civil ceremony because of their religious beliefs, they may be able to appoint a deputy to do it for them.
This issue is not addressed in the judgment and there is no clear consensus on how it will unfold. The legal duty falls on the official Registrar of the Cayman Islands Government general registry to allow for same-sex marriage and it is likely that this will at least involve a responsibility to ensure there are licensed officials who will perform same-sex marriage ceremonies.