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GOVERNMENT ORDERED TO PROVIDE LEGAL EQUIVALENT

Same-sex marriage ruling overturned but ...

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The Cayman Islands Court of Appeal has ruled in favour of the government, overturning Chief Justice Anthony Smellie’s previous ruling that legalised same-sex marriage in the Cayman Islands.

At the same time, however, the court ordered government to “expeditiously” provide Chantelle Day and her partner, Vickie Bodden Bush, with legal status equivalent to marriage, according to court documents.

In a statement following the ruling, attorney and LGBTQ activist Leonardo Raznovich, said, “It is a sad day for Caymanians because their constitution has not been properly upheld by their own courts, and for this reason a sad day for the jurisdiction and its future….”

While overturning the chief justice’s previous judgment, the appeals court also called on the UK to step in and ensure that civil partnerships or a legal equivalent are implemented if the Cayman Islands government fails to do so. No timeline was given on how long government has to act, but the court did note that government has previously failed to decide this matter.

“It is difficult to avoid the conclusion that the Legislative Assembly has been doing all it can to avoid facing up to its legal obligations,” the court wrote.

The next step for Bodden Bush and Day is not immediately clear.

“The Petitioners are mindful that section 26(3) of the Bill of Rights gives them the right to appeal to the Judicial Committee of the Privy Council on the marriage issue and a further press release will follow in due course once the Petitioners have had an opportunity to consider the judgment and take legal advice,” said attorney Ben Tonner, who represents Bodden Bush and Day.

Cabinet Minister Juliana O’Connor-Connolly attended the proceedings and declined to comment on the matter.

How we got here

In August, the Cayman Islands government appealed the March 2019 landmark ruling handed down by Chief Justice Smellie.

The courts were initially petitioned in February by Day and Bodden Bush. They claimed discrimination on the grounds that the Marriage Law – parts of which comprise section 14 of the Constitution – defined marriage as a union between a man and a woman. They said that definition resulted in a breach of their constitutionally protected human rights.

Day and Bodden Bush’s attorneys argued that, while the Marriage Law did not explicitly state that same-sex couples were not allowed to be married, the definition was limiting and restricted same-sex couples from forming their own unions. The attorneys also argued the discrimination was further compounded by the lack of civil partnerships or a legal equivalent.

When responding to the initial case, government’s attorneys argued that there was no discrimination, and that the framers of the Constitution intended to preserve marriage as a union between a man and a woman. They argued that limiting marriage to opposite-sex couples was not discriminatory because it did not prevent government from introducing equivalent legislation.

They argued that if the court found the law to be discriminatory, it was the job of the courts to refer it back to the Legislative Assembly to be changed.

When arriving at his decision, the chief justice was guided by common law jurisdictions such as Canada, Bermuda and South Africa; places where same-sex marriages or civil unions have since been legalised. He ruled that as long as the Marriage Law defines marriage as a union between a man and a woman, it was “repugnant” to the Cayman Islands Constitution’s Bill of Rights, and that Day and Bodden Bush were entitled to marriage.

After declaring the law unconstitutional, the chief justice then drew on Section 5(1) of the Constitution, ‘Existing Laws’, which allows a judge to either nullify or change a law deemed unconstitutional to bring it in line with the Constitution. Ultimately, he changed the definition in the Marriage Law to mean a union between two people.

The appeals judges on Thursday found that the Bill of Rights within Cayman’s Constitution was framed with the European Court of Human Rights stance on same-sex marriage in mind and the chief justice gave undue weight to judicial decisions from other common law jurisdictions.

In a matter dating from 2004 that concluded in 2016, the European Court of Human Rights ruled that same-sex marriages were not considered a human right. So had the chief justice placed more weight on the European court instead of rulings from other common law jurisdictions – a route the appeals court found to be more appropriate since Cayman’s constitution was framed with the European Court of Human Rights in mind – he would not have arrived at his decision to legalise same-sex marriage.

“We well understand how and why the Chief Justice reached the decision he did. However … we have been driven to allow the appeal,” the court said.

By setting aside the chief justice’s ruling, the Court of Appeal has confirmed the original definition of marriage under the law as the union between a man and a woman.

Although the appeal judges found there was no discrimination, they did acknowledge that government needed to urgently provide a legal equivalent of marriage to Day and Bodden Bush.

“Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage,” said the judges.

The judgment goes on to say, “It would be wholly unacceptable for this declaration to be ignored. Whether or not there is an appeal to the Privy Council in respect of same-sex marriage, there can be no justification for further delay or prevarication.”