On Monday, 14 March, the UK’s Privy Council will be handing down its judgment on whether same-sex marriages are compatible with Cayman’s Constitution.
That decision will come more than one year after four judges heard arguments for and against same-sex marriages.
At the heart of the legal battle, which has been brought by same-sex couple Chantelle Day and Vickie Bodden Bush, are two questions.
Firstly, does the Bill of Rights in the Cayman Islands Constitution provide the right for Day and Bodden Bush to marry?
If so, the second question asks whether the order of the Grand Court of the Cayman Islands, which modified the Marriage Law to define marriage as “the union between two people as one another’s spouses”, should be restored.
During the Privy Council hearing on 23 Feb. 2021 attorney Edward Fitzgerald, QC, who represents the couple, argued, among other things, 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.”
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.
The Privy Council heard a similar case regarding same-sex marriages in Bermuda, and is also expected to return that judgment on 14 March.
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