The Cayman Islands government opened three days of highly anticipated arguments in court Wednesday regarding the legalisation of same-sex marriage in the Cayman Islands.
Government has appealed Chief Justice Anthony Smellie’s landmark ruling in March that effectively granted the right to same-sex couples to wed in the jurisdiction.
The case brought by Chantelle Day and Vickie Bodden Bush, who challenged a government denial of their application to marry in April 2018, sparked a debate as legal as it was cultural in the Cayman Islands.
On Wednesday, Dinah Rose, QC, contended that Section 14(1) of the Cayman Islands Constitution is clear in its intention to restrict marriage to opposite-sex couples and cannot be interpreted otherwise.
“The right to marry is carefully defined and subject to express limitation,” Rose said, adding that the section is comprehensive and specific.
Chief Justice Smellie argued in his March ruling that denying same-sex couples the right to marry was discriminatory because it prevents such couples from accessing the suite of rights guaranteed to them under the Constitution, including the right to private and family life.
Rose argued these rights were not the issue at hand and the court must consider the narrower question of marriage.
“This case is only about right to marry, not about access to substantive benefits only made available to married couples,” Rose said.
She further argued that it is not up to the court to amend marriage legislation but that that burden falls upon the Legislative Assembly.
“It is up to Legislative Assembly to provide same-sex marriage, should it choose to do so,” Rose said.
She outlined extensive case law deriving from the European Convention on Human Rights and the International Covenant on Civil and Political Rights, both of which were considered when establishing the Cayman Islands Constitution.
Rose argued these documents do not establish marriage as an international human right, but as an issue that comes down to individual legislatures.
Given the language in Section 14 of the Cayman Islands Constitution specifying the right to marry a person of the opposite sex, Rose said, “The Cayman Islands has sought to set out explicitly the national limits on the right to marry … as invited to do so in Article 12 of the [European] Convention [on Human Rights].”
Rose argued the courts are under no obligation to extend marriage rights to same-sex couples and that judges must remove their own values from the equation when making legal decisions.
A 2015 European Court of Human Rights ruling presented the question of civil unions. In that case, the court found Italy to be in violation of human rights because the country neither offered civil unions or marriage to same-sex couples.
Rose was asked by the court at what point the Cayman Islands came into breach of the obligation to offer civil partnerships. She said the earliest date would have been the 2015 European Court of Human Rights ruling.
She added that she is not in a position to say what should be done about it, and that the question of what exactly needs to be done will depend on the outcome of the appeal.
While the 2015 case recognised a right to legal protection, Rose said the court was not arguing that the legal vehicle offered to same-sex couples must be identical to marriage.
Rose argued that European courts have found same-sex couples do enjoy a right to private and family life, but that case law separates such rights from individual marriage provisions. She contended this precedent makes the case that marriage rights cannot be inferred from other provisions in the Cayman Islands Constitution, such as the right to family and private life established in Section 9.
“The limitation of marriage to opposite-sex couples has been found repeatedly by the European Court of Human Rights not to offend against basic human rights,” Rose said, pointing to wording in the Cayman Islands Constitution recognising the jurisdiction’s Christian heritage.
Courtroom 6 was filled to capacity throughout the proceedings Wednesday morning. Spectators included Education Minister Juliana O’Connor-Connolly, a vocal opponent of same-sex marriage, and former Human Rights Commission chair James Austin-Smith, a vocal proponent for marriage equality.
When the proceedings broke for lunch Wednesday, a small prayer circle formed in the bottom floor of the courts building. Other spectators were seen wearing apparel in support of marriage equality.
Arguments continued after the print deadline for the Cayman Compass on Wednesday, and were expected to continue through Thursday and Friday.