Round 2 in same-sex marriage fight

Chantelle Day, left, and Vickie Bodden Bush – photo: Taneos ramsay

Government’s appeal against a Grand Court decision to legalise same-sex marriage in the Cayman Islands will be heard next week.

A three-day hearing is scheduled to start on Wednesday, 28 Aug.

In March this year, 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 Marriage 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, who started court proceedings after being denied the right to marry.

Implementation of the chief justice’s decision was delayed after government announced its intention to appeal and successfully applied for a ‘stay’ until the conclusion of the appeals hearing.

Three Court of Appeal judges, including president Sir John Goldring, will hear arguments from both sides next week, and a decision is expected in October. If government is unsuccessful in its challenge, it still has the option to appeal to the Privy Council in the UK.

In his original decision, Chief Justice Smellie ruled that failure to provide for legal recognition of same-sex relationships violated the right to a private and family life, the right to freedom of conscience, the right to freedom from discrimination, and numerous other rights under the Cayman Islands 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.

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.

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