Chantelle Day, left, and Vickie Bodden Bush

The Court of Appeal will deliver its decision tomorrow, Wednesday on whether to grant a stay of the execution of a historic court judgment legalising same-sex marriage in the Cayman Islands.

Three appeals judges heard submissions Tuesday from Reshma Sharma, representing the Office of the Attorney General, and David McGrath, acting for Chantelle Day and Vickie Bodden Bush, the couple at the centre of the case. McGrath said the couple would not get married until after the Court of Appeal ruling is delivered. The court is expected to deliver its ruling at 3 p.m.

The Office of the Attorney General, acting on the Cayman Islands government’s instructions, is seeking to appeal Chief Justice Anthony Smellie’s March 29 judgment, which effectively rewrote the islands’ Marriage Law to allow same-sex couples to wed. Government is asking for the change to be delayed until the appeal is decided.

Sharma told the Court of Appeal that the groundbreaking case had altered conditions of marriage that had prevailed for some time, and that it was imperative that a stay be put in place until there was no legal question over the status of marriage in the Cayman Islands.

She said that if Day and Bodden Bush did get married and then if the government’s appeal against the chief justice’s ruling were successful, it would create another level of confusion. “The egg could not be unscrambled,” she said.

Outlining the basis for appeal, Sharma said government maintained that the Constitution defined marriage as between a man and a woman, and that other rights in the Constitution could not be used to usurp that clause.

She accepted that the court had broad powers to modify legislation that was deemed to be out of step with the Bill of Rights through Section 5 of the Constitution, but said this power was not unlimited and that the court had effectively created a “new species” of marriage.

In doing so, she argued, the court had “come dangerously close to stepping into the realm of judicial legislation”.

McGrath, representing Day and Bodden Bush, said the attorney general’s argument had not come close to meeting the bar for a stay to be put in place, adding that while multiple technical points had been raised, the attorney general’s office had not contested the substantive finding of the judgment – that the unavailability of marriage to same-sex couples amounts to multiple serious breaches of the Bill of Rights.

In order for a stay to be put in place, he said, government would have to show that it had a “real chance of success” on appeal, and it had not done so. He added that government was simply rehashing its argument that Section 14(1) of the Bill of Rights amounted to a ban on same-sex marriage. That section reads: “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.”

McGrath argued that all that section did was protect the right of heterosexual couples to marry. “What it definitely does not do is prohibit same-sex couples from entering the institution of marriage,” he told the appeals court justices.

He said the argument on Section 5 was misconstrued, and that the court was required to amend the law once it had been found to be in breach of the Bill of Rights.

Legislators’ powers in the Cayman Islands are constrained to passing legislation that complies with the Constitution, McGrath told the court.

Following the arguments by both sides, the three appeals court judges retired to consider their ruling.

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