UPDATED 6:30 P.M.: Same-sex couples will have to wait a few months longer to find out if they have the right to get married in the Cayman Islands.
The Court of Appeal agreed on Wednesday afternoon to delay implementation of last month’s historic judgment legalising same-sex marriage.
That decision means Caymanian Chantelle Day and her partner Vickie Bodden Bush, who brought the successful challenge to the territory’s marriage laws and had planned to get married this week, will have to delay their wedding.
Government is appealing Chief Justice Anthony Smellie’s decision to legalise same-sex marriage and applied for a “stay” to prevent gay and lesbian couples from getting married until the conclusion of that appeal.
A panel of appeals court judges agreed to that request, saying government had demonstrated that the appeal was arguable. President of the Court of Appeal Sir John Goldring said the court accepted the point raised by attorney Reshma Sharma on behalf of the attorney general that it risked creating a legal anomaly if same-sex couples were allowed to marry and the chief justice’s decision was later overturned on appeal.
A mixed crowd of friends and family of the two women and opponents of same-sex marriage packed the public gallery as the decision was announced.
“Praise the lord, thank you, Jesus,” one woman shouted at the conclusion of the case.
“Bigots,” another member of the gallery shouted in response.
A small group sang religious songs outside the court in apparent celebration of the decision.
The Court of Appeal decision was exclusively focussed on government’s application for a stay. The panel will hear the substantive appeal at its next sitting in August.
Announcing the decision, Justice Goldring said the judges had read and considered the “moving and detailed” affidavit of Day and was in “no doubt” of the prejudices she and her partner faced.
But, he said, there were cogent grounds for a stay to be put in place.
“The chief justice’s judgment concerns the institution of marriage in the Cayman Islands and, as Ms. Sharma says, it can’t be right that there is legal uncertainty pending the final decision of this court,” Justice Goldring said.
He said the court was also conscious of the administrative changes that may be required to give effect to the judgment legalising same-sex marriage.
“It is not without hesitation”, he said, “that we have concluded that the interests of justice do require a stay in this case, pending the decision of this court.”
In an initial hearing before the Court of Appeal on Tuesday afternoon, government argued that Chief Justice Smellie’s decision should not be given effect until the appeals process had been exhausted and there was “no legal question over the status of marriage in the Cayman Islands”.
Sharma said the Cayman Islands government maintained that the country’s Constitution defined marriage as between a man and a woman and would argue on appeal that the chief justice had overstepped his powers by revising the Marriage Law directly, to create what she described as “a new species of marriage”.
She said the question of marriage was a serious social issue and requested a stay until the appeal was decided.
David McGrath, representing the couple, said government’s grounds for appeal were simply a rehash of arguments that had been unsuccessful at trial. He said they were “totally without merit” and had “no chance of success”, and it would be unfair to his clients to deny them the “fruits of their judgment”.
He said government had not contested the substantive finding of the chief justice that, by refusing access to marriage for same-sex couples, it was in breach of multiple rights guaranteed under the Constitution. These include the right to a private and family life and the right to freedom from discrimination.
He said, “Bearing in mind the applicants seek to perpetuate an exclusion to marriage that the chief justice has described as an indefensible anomaly, the stay should not be granted.”
Justice Goldring said the government did not have to prove that it had a realistic chance of success on appeal to be granted a stay. He said it simply had to prove that it had an arguable case.
He said the Court of Appeal would hear that case at its next session in August and make a decision on whether the chief justice’s ruling should stand.
Government has raised seven grounds of appeal to the ruling, including its assertion that Section 14(1) of the Constitution operates as a de facto 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.”
They will also seek to argue that the chief justice gave insufficient weight to the negotiations that resulted in the wording used in the Constitution and that he erred in believing that the clause of the Marriage Law, which defined marriage as between a man and a woman, was passed on religious grounds.
A further ground of appeal involves government’s claim that the chief justice exceeded the scope of his powers of modification under Section 5(1) of the order which brought the Constitution into effect.