Gay couple ‘waited long enough’ to marry

Vickie Bodden (left) and Chantelle Day are fighting for the right to marry in the Cayman Islands court

(CNS): Chantelle Day and Vickie Bodden have “waited long enough” for the Cayman Islands Government to address the lack of any provision for same-sex couples to marry or enter into a civil partnership, Edward Fitzgerald QC told the court, as he made submissions on their behalf Thursday in the landmark case. He said his clients were in love and wanted to marry. He explained that the women had tried in reasonable, sincere and moderate ways to engage with government and ask for a remedy to the discrimination they faced, but nothing has happened, despite the clear need for the local authorities to address this issue.

Having engaged in a correspondence with the premier, who did not respond, and the governor’s office, which had responded but did nothing to resolve the problem, the couple attempted to obtain a marriage licence anyway in April last year. But when the General Registry refused them a licence on the grounds that they were a same-sex couple, they turned to the courts.

They applied for and were granted a judicial review of the decision by the registrar in addition to the human rights challenge. That is based on the discrimination they are facing over the marriage licence refusal because of their sexual orientation, in contravention of section 16 of the Bill of Rights, as well as the denial of their rights to a private and family life and freedom of conscience under section 9 and section 10.

As he opened the case on behalf of the two women, who have made the first direct legal challenge to the lack of marriage equality in the Cayman Islands, Fitzgerald pressed home the publicly declared position of former governor Helen Kilpatrick that for more than four years, following findings in the European Court of Human Rights, the Foreign and Commonwealth Office has been expecting that, at the very least, the authorities here would remedy this lack of provision with civil partnerships.

Kilpatrick spoke frequently and on the public record about ending the discrimination, and Fitzgerald noted that in a statement before she left, she had said the “need for legislation is now pressing to advance the rights” of the LGBTQ community.

But since then, there have been only “hollow words” and “hand wringing” but no action to address the discrimination and denial of rights the couple continue to face. The lawyer said the “crocodile tears” did nothing to help the challenges the women have as a result of the continued denial of their fundamental human rights. Now that they are living in Cayman with their daughter, whom they adopted when they lived in the UK, they have encountered several problems.

While Day is Caymanian and works here for a local law firm, her fiancée, Bodden, is British with family ties to the Bay Islands in Honduras, leaving her immigration status in question. Fitzgerald noted that they had many other challenges relating to their personal and family rights, for example the adoption of their daughter is not fully recognised and they face financial issues, such as pensions and health insurance.

Fitzgerald said that the respondent in this case, which is essentially the Cayman government, “holds all the cards” and has the means to put an end to the discrimination and denial of rights the couple are experiencing.  But he said they were arguing that section 14 of the Constitution, which sets out the freedom of single men and women to marry a member of the opposite sex, overrides everything else in the Constitution.

Fitzgerald argued it did not. He said there was simply no justification for the continued denial of his clients’ right to marry.

Setting out copious examples of settled case-law in the west regarding marriage equality and pointing out that the arc of human history was in favour of recognising same-sex relationships, he said the Constitution’s guarantee of marriage for opposite sex couples could not mean that any other kind of marriage could never, ever be recognised.

He pointed out that marriage has evolved throughout history. Once only a religious private institution, in the mid-nineteenth century it became an institution of a secular state. And marriage has adapted to a changing, democratic, free and secular world in may ways, he said, noting that at one time slaves were not permitted to marry, people of different religions could not be married, and in America it was not until 1967 that interracial marriage was permitted in some southern states.

The lawyer spoke of the enforced or arranged marriages and the mistreatment and inequities of women within the institution of marriage, all of which have changed and evolved to eliminate the discrimination. Fitzgerald said that marriage is now a secular, state-controlled institution, which means the state must deal fairly with the public wishing to enter into it and therefore has an obligation to end the discrimination faced by his clients.

He said it could not be that the guarantee that exists in the Cayman Constitution to protect the rights of men and women to marry each other could never be expanded. The senior advocate also argued that this legal case was not challenging the rights of marriage that is guaranteed in the Constitution for opposite-sex couples.

He also noted how it has been settled across the secular developed world that same-sex couples are just as capable of having stable, supportive family relationships as opposite-sex couples and that those partnerships need legal supportive recognition, he said.

In his detailed submissions, Fitzgerald pressed home that there was no justification at all for the lack of same-sex marriage or civil partnerships now, given the case-law, the findings of the European Court of Human Rights, the UK’s own legislation and its position regarding its territories. But he also argued why the women should have access to marriage rather than an equivalent same-sex civil union.

The lawyer pointed out that if an institution which is equal to marriage is created purely for same-sex couples, it perpetuates the discrimination, as it sets these couples apart as being in some way abnormal, adding a stigma to the institution as something for “biological anomalies”. He said the government’s response was going to be based largely on questions of public morality, which was “the horse which they are backing”, as he suggested it was based on the idea that the state should discourage homosexuality, but this has no justification as it is no longer a crime to engage in such relationships.

The government has not explained how the marriage of a same-sex couple poses such a threat to public morality and the lawyer argued the state has an obligation to treat all people equally so there is no justification for this continued denial of rights. Fitzgerald pressed the point that his clients were being treated differently by a democratic state purely because of their sexual orientation. He told the court that the case was about human dignity and the women’s right to be treated fairly, without discrimination, and to be able to enjoy a private family life as a married couple because they both believed in the institution.

The case, which is being heard by Chief Justice Anthony Smellie, continues Friday.