The Privy Council has set 23 Feb. for hearing Caymanian couple Chantelle Day and Vickie Bodden Bush’s challenge of the Court of Appeal’s decision in their case.
The couple is seeking the right to get married in Cayman.
The five-member UK-based council, which comprises Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Dame Victoria Sharp, has allotted one day for hearing of legal arguments in the case.
They will be looking at two specific issues in the same-sex marriage appeal.
The first, based on the case summary, is “Does the Bill of Rights in the Constitution of the Cayman Islands require that the Marriage Law of the Cayman Islands be interpreted so as to define ‘marriage’ to include the union of same-sex couples?”
The second issue is “If same-sex couples are instead only entitled to legal protection which is functionally equivalent to marriage, have the Government and Governor of the Cayman Islands unlawfully failed to put that protection into effect?”
Day and Bodden Bush mounted a legal challenge of the local Marriage Law after the deputy registrar refused their application for a marriage licence back in 2018. It was rejected on the basis that the local Marriage Law defines marriage as “the union between a man and a woman as husband and wife”.
Chief Justice Anthony Smellie had ruled in the couple’s case, legalising same-sex marriage in the Cayman Islands.
However, in November 2019 the Cayman Islands Court of Appeal overturned that decision.
The government had appealed Smellie’s ruling on the grounds that the chief justice had legislated from the bench when he re-wrote the definition of marriage from that of a union between a man and a woman to “the union between two people as one another’s spouses”.
The appeals court, though finding in favour of government, ordered that the National Unity administration act “expeditiously” to provide Day and her partner with legal status equivalent to marriage.
Last year Premier Alden McLaughlin introduced, for debate, the Domestic Partnership Bill which set out a legal framework that gave same-sex couples protection under the law and formalised their relationship.
However, that bill was defeated by one vote when government ministers Juliana O’Connor-Conolly and Dwayne Seymour voted against the legislation.
Their action set off a chain of events which led to Governor Martyn Roper using his reserved powers under Section 81 of the Constitution to push through the Civil Partnerships Law which was a revised version of the Domestic Partnership Bill.
It also led the UK to retain Section 81 even though it had agreed to its removal following almost two years of negotiations led by the premier.