Arguments into the appeal of Chief Justice Anthony Smellie’s ruling to legalise same-sex marriage in the Cayman Islands entered day two of the three-day hearing on Thursday, when attorneys for Chantelle Day and Vickie Bodden Bush addressed Court of Appeal judges.
Representing the couple was Edward Fitzgerald, QC, who argued that Chief Justice Smellie was correct to have changed the definition of Cayman’s Marriage Law from a union a between a man and a woman, to a union between two people. The landmark ruling, which was handed down in March, is now being appealed by the Cayman Islands government.
The government is appealing the decision on seven grounds, including that Chief Justice Smellie erred in concluding that the Marriage Law was based on religious grounds; the chief justice gave insufficient weight to the negotiations that resulted in the Constitution; the chief justice gave undue weight to judicial decisions from other common law jurisdictions; and that the chief justice exceeded the scope of his powers of modification under section 5(1) of the Constitution Order.
Dinah Rose, QC, representing the government, argued that after ruling the Marriage Law was incompatible with the Cayman Islands’ 2009 Constitution’s Bill of Rights, the chief justice should have ordered the matter be returned to the Legislative Assembly for Cayman’s legislators to correct it.
Fitzgerald said, “Leaving the matter in the hands of the legislature would be tantamount to leaving Day and Bodden Bush in a no man’s land with no legal protection, as they would be denied the most basic of rights, which are to form a union and found a family.” He added that leaving the matter for legislators to decide would have meant the issue would have gone on “into the ages without a decision ever having been arrived at”.
Justice Sir Richard Field, one of three appeal judges hearing the case, said at the heart of the matter is the issue of Day and Bodden Bush having to prove they were being discriminated against. He said for there to have been discrimination, the couple would have to prove that they did have a right to marriage in the first place before they could state that discrimination had occurred. Field added that since the European Union Convention declared marriage was not a human right, Cayman was not in breach of its compliance to the EUC,” a point Fitzgerald agreed with.
“I accept that the European Convention does not go so far as to mandate the imposition of same-sex marriages,” Fitzgerald said. However, he added, “While Cayman was not in breach in that regard, it was in breach of not having a similar institution such as civil partnerships, which would afford same-sex couples the same benefits as married couples of the opposite sex.
Rose argued that there was no discrimination; instead, sections 9, 14(1) and 16 of the 2009 Constitution sought to protect the rights of opposite-sex couples who wished to get married.
During his remarks on Thursday, Fitzgerald said neither the 2009 Constitution nor the Cayman Islands Marriage Law explicitly outlawed the marriage of same-sex couples.
He went on to argue that if the framers of the Constitution had intended to restrict the marriage of same-sex couples, clauses that stated “nothing in this section shall be used to authorise same-sex couples the right to marriage” would have been included in either the Constitution or the Marriage Law.
He pointed to the Constitution of Montserrat as an example where framers included such clauses. Fitzgerald further stated that during the framing of Cayman’s Constitution, the wording which would have explicitly prevented the marriage of same-sex couples was presented but not included – a point, he said, speaks to the intentions of the Constitution’s drafters.
“While the constitution does not explicitly provide the right for same-sex couples to be married, sections 9 and 16, when engaged, proves that Day and Bodden Bush did have a right to found a family and receive the said benefits,” said Fitzgerald.
On Wednesday, Rose dedicated significant time to evaluating the intention of Section 14, the provision of the Cayman Islands constitution that respects “the right of every unmarried man and woman of marriageable age” to “freely marry a person of the opposite sex”.
Rose argued that the addition of the clarifying word “only” would have made no difference and that the intention of the drafters was clear.
“Why would the draftsmen contend there should be a wider right to marry purely by implication?” she said, arguing that the inclusion of gender-specific language was purposeful.
Unlike other sections of the Cayman Islands constitution, Rose pointed out that Section 14 alone uses gender-specific language. This language places limits that the writers did not intend to place on other sections, such as the right to family and private life established in section 9 and non-discrimination established in Section 16.
She concluded, then, that the right to marry was intentionally set apart from other rights and meant to be restricted to marriages between the opposite sex.
Rose went on to quote interviews with members of the Human Rights Commission conducted around the time the constitution was deliberated. In these interviews, Rose said, the commission members gave reassurances to the Christian church lobby that Section 16 on non-discrimination would not be construed to extend same-sex marriage rights.
These statements, Rose concluded, pointed to the intention of Section 14 in limiting marriage rights to opposite-sex couples.
Rose further argued that Section 10 regarding the right to conscious and religion could not be extended to the cases of LGBT couples because such situations did not entail formal practice of an ideology. She said there must be some sort of established religious practice to invoke Section 10 rights.
The proceedings, which were held in courtroom six, on both days were well attended by supporters and opponents of same-sex marriage.
The case is expected to conclude Friday. However, it is unclear when a decision will be returned.
Compass reporter Kayla Young contributed to this report.