Same-sex marriage: Couple considers Privy Council appeal

Chantelle Day and Vickie Bodden Bush
Chantelle Day and Vickie Bodden Bush had challenged Cayman’s Marriage Law in February 2019 on the grounds that it was discriminatory and violated their human rights.

The couple fighting for equal marriage rights in the Cayman Islands is mulling a possible appeal to the UK Privy Council after a court decision to legalise same-sex marriage was overturned.

Chantelle Day, speaking on behalf of herself and her partner Vickie Bodden Bush, said she was disappointed at the decision handed down by the Court of Appeal last week, although she commended the court’s criticism of government’s failure to act on the issue.

She said the couple would wait to see if and how the Cayman Islands and the UK government responded to the court’s declaration that it should move “expeditiously” to provide same-sex couples with legal status equivalent to marriage.

Day told the Cayman Compass, “We are disappointed that the court was not able to provide an effective remedy for an admitted and blatant breach of the Constitution and the European Convention on Human Rights.”

The Cayman Islands government accepted, and the court had confirmed, that by failing to provide rights “equivalent to marriage” for same-sex couples, lawmakers in Cayman are in breach of the islands’ own Bill of Rights and the European convention.

Asked if they plan to appeal to the Privy Council – the highest court of appeal for British Overseas Territories – Day said they were discussing the option with their legal team.

“That is definitely something we are aware is available to us and we are considering it,” she added.

The Court of Appeal reversed Chief Justice Anthony Smellie’s original ruling, which changed the Marriage Law to make it conform with the Bill of Rights by allowing same-sex marriages.

Instead, the appeals judges ordered government to bring legislation offering equivalent rights and said the UK should intervene if the Cayman Islands legislature failed to act.

Civil partnership compromise offered before case

Day said it was unfortunate that the government had chosen to fight in court to block the rights of same-sex couples, rather than simply bringing in a legal regime with equivalent rights without the need for an extended and expensive court case.

The couple wrote on several occasions to Premier Alden McLaughlin and then-Governor Helen Kilpatrick in the hope of finding a political solution to the situation.

In a letter to the premier before they undertook legal action, lawyers acting for the couple urged government to move to introduce civil partnerships for same-sex couples, suggesting this was the minimum requirement of Cayman’s Bill of Rights.

Day said, “We asked them to put an end to the human rights crisis facing all same-sex couples in the Cayman Islands that simply are entitled to be afforded the same protections as other families.”

Government did not respond to that letter and fought the case in court. They conceded during the trial, however, that they were in breach of Cayman’s Bill of Rights and of the European Convention on Human Rights.

“They were willing to go to court and fight to oppress the rights of Caymanian citizens and spend significant funds on legal fees arguing against this, even though they accepted that they were in breach,” Day added.

At this point, she said, she is not sure how to feel about the prospect of civil partnerships.
While she said she believed it would be a huge step forward and provide necessary legal protection to her family and many other same-sex couples, she said it is still effectively different treatment.

“True equality comes in the form of marriage, and not a separate but functionally equal legal regime that has a different title for the sole reason as to distinguish between sexuality,” she added.

Court of Appeal declaration:
In recognition of the longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under section 9 of the Bill of Rights and in recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights, IT IS DECLARED THAT Chantelle Day and Vickie Bodden Bush are entitled expeditiously, to legal protection in the Cayman Islands which is functionally equivalent to marriage.

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