Attorney Leonardo Raznovich has said he is hoping the Privy Council will deliver its ruling in the Chantelle Day and Vickie Bodden Bush same-sex marriage case when the court resumes in October.
Raznovich, who is part of the legal team representing Day and Bodden Bush, told the Cayman Compass Tuesday that he believes the length of the panel’s deliberation is “out of the ordinary”.
It is nearing six months since legal arguments closed in the case and the Privy Council panel retired to deliberate on the issues highlighted by the couple seeking equal marriage rights in the Cayman Islands.
The Council is currently on summer recess and is expected to resume sittings the first week in October.
Also on the law lords’s decision list is a Bermudian case in which marriage rights are being challenged in that jurisdiction. That ruling is yet to be decided by the same panel of law lords that heard the Cayman case.
“They [the Bermudian couple] have been sitting there for the last almost three years waiting for the Privy Council to make a decision, so I sympathise perhaps a little bit more because of the length [of time] they have [been] waiting… but that doesn’t mean that Vickie and Chantelle [are] not in… limbo… This is a big breach of human rights… this waiting for a decision,” Raznovich said.
The law lords have to decide on two issues in the Day/Bodden Bush case. One is whether Cayman’s Bill of Rights, as set out in the Constitution, provides for a right for same-sex couples to be married. The second issue is whether the Grand Court’s 2019 ruling, that changed the wording of the Marriage Law to legalise same-sex marriage, should be restored.
He said given the complexity of the case and the implications for not only Cayman, but also British Overseas Territories as a whole, he expected it would take some time to arrive at a decision, but not this long.
Raznovich said it is hard to determine which way the Council will go when it comes to either case.
“It would be very difficult to justify that the Privy Council will say yes to Bermuda for same-sex marriage and no to the Cayman Islands for same-sex marriage. Could that be a possible outcome? Yes, it could be. I would find it very difficult to find a justification for that. As a matter of principle, it would put the UK in a very awkward position,” Raznovich said.
He suggested one of the reasons for the delay is the same panel heard both cases. Adding to the complexity, he said, is that each case involved separate legal arguments but the rulings will both focus on whether same-sex marriage should be allowed.
“Each of the jurisdictions have a very high level of complexity and their judgment is going to make history one way or another. They’re going to become the Privy Council of the millennium, or they’re going to ratify themselves as a Victorian court,” he added.
Background to the case
Caymanian Day and her partner, 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.