Any individual living in any country whose government claims to be bound by the rule of law knows that nobody, including the government, is above the supreme law of the land, which in the case of the Cayman Islands is its Constitution.
The only way to enforce such a fundamental principle is an effective judicial remedy, which means that if the legislature breaches the Constitution, then the judiciary will enforce the Constitution against and above the will of the legislature.
The Court of Appeal declined to perform its role by failing to find such an appropriate and adequate constitutional remedy for Chantelle (Day) and Vickie (Bodden Bush) in the same-sex marriage case.
It did so by concluding that the court cannot provide a constitutional remedy to an applicant in these extraordinary circumstances in which the government admitted in court to breaching the fundamental rights of that person under the Constitution and is prepared to do nothing about it.
This is bad news for all of us, especially minorities, because we have been left, by effect of this judgment, at the mercy of the elected government and with no effective constitutional protection from the courts against legislation that impacts our fundamental human rights. For this reason only, it is a legal imperative that this judgment be appealed.
This is not the first time that a court of law of a western democracy denied effective constitutional protection to minorities. During the last century, many US states prohibited interracial marriages, justified by the need for preserving the purity of the white race. A court case challenged the constitutionality of these laws, but a court in Virginia rejected it on the grounds that God made races and placed them in different continents, hence the legal prohibition was agreed with the will of the Creator and could not be unconstitutional. That decision was corrected by a unanimous decision of the US Supreme Court in Loving v Virginia.
The Court of Appeal decision must be appealed to the Privy Council, not just for Chantelle, Vickie and their child’s benefit, but for the sake of all Caymanians, in order to restore the supremacy of the Constitution, the protections it affords all persons and the rule of law of the Cayman Islands.
Dr. Leonardo J Raznovich
LGBTQ activist and attorney