The third and final legal battle over the issue of whether same-sex marriage should be legalised in the Cayman Islands began today, 23 Feb., before the Privy Council in the UK.
At the heart of the civil dispute are two questions. The first is whether Cayman’s Bill of Rights, as set out in the Constitution, provides for a right for same-sex couples to be married. If so, the second question asks whether the Grand Court’s 2019 ruling, that changed the wording of the Marriage Law to legalise same-sex marriage, should be restored.
The appellants, Chantelle Day and Vickie Bodden Bush, took their case to the UK’s highest court with the hopes that it would side with Cayman’s Grand Court and make same-sex marriage legal in Cayman. In doing so, the Privy Council would set aside the Court of Appeal’s ruling that has kept marriage as a union between a man and a woman.
While speaking to the judges via video link, attorney Edward Fitzgerald, QC, who represents the couple, told the Privy Council that Cayman’s Marriage Law predated the 2009 Constitution and therefore Chief Justice Anthony Smellie was within his powers to modify the law so that it conformed with the Constitution.
In 2019, Smellie ruled Cayman’s Marriage Law was “repugnant to the Constitution” and was discriminatory.
“[The Marriage Law] is an existing law and should have been modified,” said Fitzgerald. “This was not a case for a declaration of incompatibility.
“There is very well-established precedent, as set out by the chief justice in his judgment, that states when it is an existing law, you modify it.”
Dinah Rose, QC, who represents the Cayman Islands government, told the Privy Council that the Court of Appeal was right to have set aside the Grand Court’s ruling, because the decision of “whether, and if, same-sex marriage should be introduced into the Cayman Islands is a matter which the Bill of Rights has left to Parliament”.
“That choice… is fully compatible with the Cayman Islands International Human Rights obligations, both under the European Convention on Human Rights and under the International Convention of Civil Political Rights,” said Rose.
She added, “It was a choice that the Cayman Islands was entitled to make and did make, as an autonomous parliamentary democracy exercising its right to self determination in domestic matters, and we submit it would be wrong for this court to overturn it.”
Rose told the Privy Council that Cayman’s Constitution provided limited “free standing rights to equality” on issues such as same-sex marriage.
When making her case for why the Privy Council should uphold the decision, Rose told the five judges that, since 1985, the European Court of Human Rights has considered the case of rights for same-sex marriage, and during that time it has remained consistent.
“It has absolutely consistently said, that Article 12 (of the European Convention on Human Rights) is the [governing law] on marriage, that you don’t derive rights to marriage from any other article and that Article 12 only envisages marriage between individuals of the opposite sex.”
The case continues tomorrow.
Background to the case
Day and Bodden Bush were denied a marriage licence in 2018 after their application was rejected on the basis that the Marriage Law defines marriage as “the union between a man and a woman as husband and wife”.
In March 2019, the Grand Court found in their favour, ruling that preventing same-sex marriage was incompatible with Cayman’s Bill of Rights, as set out in the Constitution, which guarantees the right to private and family life.
Smellie used his powers under the Constitution to rewrite the Marriage Law, legalising same-sex marriage by defining marriage as the “union between two people as one another’s spouses”.
In November 2019, the Cayman Islands Court of Appeal overturned that decision, ruling that the right to marry under the Constitution does not cover same-sex couples. However, the court also ordered government to act “expeditiously” to provide the couple with legal status equivalent to marriage.
The couple subsequently appealed to the Judicial Committee of the Privy Council.