CIG hangs appeal on same trial arguments

| 10/04/2019 | 56 Comments

Cayman News Service(CNS): The Cayman Islands Government began ratcheting up costs to the public purse in its fight against the legalisation of same-sex marriage on Tuesday during its first appearance in the appeal court asking for a stay on the implementation of Chief Justice Anthony Smellie’s landmark ruling. It also began airing the appeal grounds, which appear to be very similar to those advanced at trial earlier this year that saw government’s defence to the petition fall at every hurdle. In a short hearing before the court yesterday, Acting Solicitor General Reshma Sharma outlined only some of the details of the appeal to justify a stay.

But in documents submitted to the court, more details emerged of the seven grounds on which the CIG is hoping to overturn the legalisation of same-sex marriage. If a stay is granted it will mean an immediate return to a position of discrimination and continued violation of the rights of Chantelle Day and Vickie Bodden, the couple who had successfully challenged the General Registry’s refusal to grant them a marriage licence on the basis they were both women.

The government has not addressed the issue of the discrimination and this violation of the couple’s rights in the appeal document but argues instead that it is justifiable, taking the same position as it did at trial, where it failed to win a single point.

The government’s first two arguments for the appeal relate to section 14 of the Bill of Rights, which provides for the right to marry, firstly claiming it presents a “clear intention” to ban same-sex marriage and secondly that it precludes the location of the right to access the state institution of marriage within other rights.

In its third ground, government claims the chief justice gave insufficient weight to the constitutional negotiations, and fourthly, gave undue weight to judicial decisions from other jurisdictions. In its fifth ground, the government is claiming the chief justice erred in concluding that the Marriage Law was based on religious grounds.

In ground six, the government suggests that the CJ did not acknowledge that the European Court of Human Rights only requires civil unions, not necessarily marriage; and finally that he had exceeded the scope of his powers of modification.

Sharma argued before the appeal court that it was a matter of social policy and a question only for the government to decide “if and when same-sex marriage should be introduced” to the Cayman Islands.

This last ground of appeal was the one that has stirred up all the members of the Legislative Assembly, as noted during the debate in the parliament regarding the government’s decision to appeal, and appears to be what the government considers the most important.

However, arguing on behalf of Day and Bodden, attorney David McGrath described that particular ground as the most misconceived of them all in a list that was “wholly without merit”.

But McGrath also pointed out that government is not challenging the chief justice’s substantive finding that the unavailability of marriage to same-sex couples amounts to multiple, serious and overlapping violations of rights contained in the Bill of Rights.

In his substantive 130-page ruling, which is now available to the public and can be found here, the chief justice summed up the situation regarding the breach of the couple’s rights.

“The Petitioners seek to emphasise, correctly in my view, that the Respondents can no more justify exclusion from the institution of marriage on the ground that a couple are of the same-sex, than exclusion could be justified on the ground that a couple are of different races. That this exclusion is disproportionate is evident alone from the indignity caused to the Petitioners (and their adopted child) by the denial of the status conferred by the institution of marriage. In my view, no aim cited by the Respondents can weigh against that indignity,” CJ Smellie wrote.

The lawyers limited their open arguments to the court on Tuesday, as this is just the first step along a costly litigious road for the public purse. The government is seeking a stay until a substantive appeal hearing, which may be set for the summer Court of Appeal session.

Following the lawyers’ submissions, the appeal court panel of three judges, led by President Sir John Goldring, revealed they would give their decision on a stay on Wednesday afternoon, just hours before Day and Bodden are scheduled to get married.

They were also forced to give an undertaking that they would not marry before the 3pm ruling, even though, as the law stands, they could. There was no blanket ban issued by the court, however, so any other same-sex couple who has already received a licence and posted banns since the legalisation of same-sex marriage on 29 March could still take part in a legal marriage today.

If the stay is granted, Day and Bodden will be forced to postpone the wedding until after the appeal. If that appeal is successful, the women will then need to wait for government to address the continued breach of their human rights with the introduction of a legal framework for same-sex unions or civil partnership. If it does not, government is almost certain to face an order in council from the UK to address it.

While the governor’s office had taken part in the original trial as a respondent to the Day and Bodden petition, it has made it clear that it is not part of the appeal. Governor Martyn Roper has not just accepted the chief justice’s decision but warmly welcomed it.

It is also likely, given the finds regarding the violations of human rights, that the UK would now be much more prone to intervene in forcing government’s hand over some form of legal framework for same-sex unions.

If a stay is denied, however, the women intend to press ahead and become the first legally married same-sex couple in Cayman, though regardless of the outcome of the appeal, they are unlikely to be the last.

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Category: Local News

Comments (56)

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  1. Anonymous says:

    This regime spends more money on week-long Christmas vote-buying cleanup gigs than mental illness and drug rehab in an entire year. The opportunity cost of blowing further millions on a loosing position will be a multiplied cost we bear down the road from neglected house-keeping. We need better stewards of our trust and money to break our crime cycle and defray the pension, health care and social services liabilities that we already know are unaccounted for on the balance sheet and will be coming soon. We aren’t retiring our debt either, so independence fantasies are completely unrealistic. Where are the adults?

  2. Leroy Parker says:

    I never usually comment on these things. I cannot help at this stage based on the hypocritical and hateful people on this Island. There are more burning issues that are of crave detriment, imminent or otherwise,to the Cayman Islands.

    We are quick to head to the bible and say it says this and that but yet we forget the parts that says leave all judgment to God. There are marches and protests in the name of Jesus and God. When did they elect you all to be judges? I believe that the issue here is that because it’s more fun to hide in the closet and hit a same sex person, making it legal will take away the thrill so keep it illegal like marijuana so that the risk is worth the high or vice versa.

    Why aren’t we lobbying for the legalization of personal use marijuana and say Smellie, CJ, while you are on the point, can you legalize marijuana since the law was pre the constitution? Why aren’t we seeing such challenge mounted? Keeping the people in bondage is a revenue stream so why make it legal?

    Same sex is not illegal in the Cayman Islands so if it is OK for a man to lie with a man and a woman to lie with a woman, why not allow them to marry? they may live happier ever after and better than some of these pretentious married people I see around here.

    Deut. 22:22. If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel. (Its all dead men and women walking around here) Let he that is without sin, cast the first stone. No sin is greater nor is any smaller in the eyes of God.

    God is love and he who defies love is a hater, the same bible says he who hates is a murderer. What if it were your child? would it make it any different? Ask your pretentious selves the important question, what would Jesus do? (read Mark 4 if you have not been edified. Leave the people be and find more beneficial things to do. Why can’t the govt. give money to the feed the future, meals on wheels etc? They waste all this money on appeal and at the end of the day the couple will win! You can’t use settled cases from other jurisdiction to sure up your conviction in other cases, particularly money laundering and theft but the same can’t be seen as acceptable when a same sex couple’s attorney uses it to strengthen their case. Hypocrisy at best.

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    • Anonymous says:

      Sorry, there is absolutely no comparison. Smoking pot is not a human or civil right, and there is nothing unconstitutional about its prohibition.

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  3. Not Gay...... Don't care... If it makes you happy and it does not affect me.... Go for it! says:

    Interesting………….. https://www.thespruce.com/history-of-marriage-2300616

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  4. Anonymous says:

    It is always a good idea to appeal on the basis of arguments you made to the trial court. Coming in with new legal arguments tends to be met with “you should have said that to the trial judge.” It is hard to say the trial judge is wrong about arguments you never made to him.

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  5. Anonymous says:

    The government is suddenly all-in on the idea of Civil Unions after refusing to even consider implementing them for YEARS.

    Reminds me of a student who refuses to turn in an essay, then upon finding out they have failed their course because of it, argues as if not allowing them to complete the essay now is unreasonable.

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  6. Kadafe says:

    I support recognition of their marriage as long as the ceremony is conducted elsewhere. I do not want to see gay weddings on SMB. Sorry. Ever heard of give an inch take a mile? This is a pretty big inch they are asking for, I wonder what’s next? Just get married elsewhere before coming here, simple.

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    • Anonymous says:

      You ignoramus. The marriage won’t be recognised here if it’s not legal! How about this, don’t go to a gay wedding and you won’t ever see one.

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    • Anonymous says:

      Oh yes, exactly what is next? I wish society had never changed since caveman times, Its all been downhill.

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      • King Dom says:

        Lol pretty sure the old testament condemnes mold and mildew (defo a cave and ergo a caveman problem) a heck of a lot more than it does gayness…love that so called “christians” refuse to acknowledge how Jesus created our new covenant based on his own teachings of not being a prick all the time just cause its the way you feel comfortable …

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      • Anonymous says:

        Actually going down hill is much easier than going up hill dumbass.

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  7. Anonymous says:

    So glad to see that this ruling still takes precedent over all other important laws that need serious changes, like the jail time for child molesters increasing from 6 months. Glad to see what continues to be priority in this country, God forbid that other pending matters on the dockets get some serious backing as this is getting.

    So glad to see that our youth have thousands of persons financially backing the very much needed youth centers and foster care facilities to keep them off the streets and doing something constructive for their future.

    Absolutely “Ecstatic” that so much is willing to fight for two grown adults both with the financial means to support whatever cause they would choose to fight in court and not for children that are going through depression and being bullied to the point of committing suicide or self-harm whether they may be of the LGBT orientation or not.

    There are so much more problems in these islands and so many laws that need to be amended, it would be fabulous if the focus is on helping those that have not means to help themselves, like maybe those persons getting thrown out on the street with children and nowhere to turn for assistance and having their lowest moments plaster as entertainment on social media.

    Maybe if we all think of helping those less fortunate and using our “power” for those causes, people wouldn’t be so close minded on your personal causes, for that is what it is, a personal choice as there are some persons in the LGBT community that have no care for marriage and are quite happy being single and free to have no financial or other obligation to anyone but themselves, somehow there seems to be some notion that everyone wants to be married unless they are considered incomplete.

    One would almost think that the purpose of this “smoke and mirrors” is to elevate a certain someones legal career so that they can claim to be the “first” to accomplish these changes in the Cayman Islands, Whoop-Tee-Doo what an accomplishment, now what? Ohh now comes the face plastered on websites and social media and rainbow parades, love is not selfish, there are so many other causes that are so much more important that selfish gains that could have been tackled first, your personal life is yours to live.

    There never has been any fear of pitchforks and machete wielding crowds chasing anyone down in the Cayman Islands because of anyone’s sexual preference and there never will be. Therefore, there was no urgency to accomplish what you all believe to have accomplished, yet there is so much more that could have been fought for prior to this, that would have brought respect to your personal causes because it would have really shown he love for our children, community and way of life in the Cayman Islands. Lets see how long and how much more money will be spent on this by the new election year.

    Now bring on the comments and arguments that fighting for the rights of children being protected from pedophiles with harsher jail times, and protection for the children as they grow older instead of throwing them into the Boys and Girls to continually run away, is not a greater cause to fight for in these times. I’m waiting… let’s hear it.

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    • Anonymous says:

      Love this comment! The dummies will miss your sarcasm and the haters will only think they see you supporting what they standing against. I am with you 100%. There are more important things we need to be standing up for in the Cayman Islands. These people fail to realize that once we’ve failed our children there is nothing left.

  8. Anonymous says:

    Why can’t these anti-gay people just side with love and acceptance of others? Why is it so difficult for them? Question: Do fundamentalist religions make people stupid and mean? Or, does those religions simply attract a high ratio of stupid and mean people? Kind of a chicken and egg question, I suppose.

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    • Anonymous says:

      No they just attract people with a low sense of self worth seeking more approval of imaginary hateful deities.

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  9. Anonymous says:

    I am another Caymanian that love Cayman but hate their ignorance. Where is the love and morality your God taught you, you certainly are not displaying that in your post. Typical Cayman selective outrage and prejudice. You picking the wrong battle because at the end of the day Chantelle and Vicky will pay their own way and not rely on handouts so their lives will in no way impact yours. You get that don’t you?

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  10. Anonymous says:

    Still shouldn’t be judges, needs to be decided by the people in a national vote.

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    • Anonymous says:

      Human and civil rights are not a popularity contest. That’s the whole point of enshrining a basic code in a Constitution that stands up for minority victims of discrimination, particularly if it’s state-sponsored! On Judicial Review, which took 3 months, these initial arguments where blown to pieces by both sets of QCs and the CJ. Good luck dummies!

  11. Anonymous says:

    Doesn’t the constitution read every man and woman have the right to marry?

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    • A Young Caymanian says:

      It also talks about non-discrimination in section 16 which makes this constitution ironic.

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    • Anonymous says:

      No14.—(1) Government shall respect the right of every unmarried man and woman of
      marriageable age (as determined by law) freely to marry a person of the opposite sex and found a
      family. it doesn’t. ..try reading it…it is actually well written and simple. It says “14.—(1) Government shall respect the right of every unmarried man and woman of
      marriageable age (as determined by law) freely to marry a person of the opposite sex and found a
      family.”.
      Congrats to the Appeal Judges for getting it right today!
      Interesting how the media has no shame in wording their articles to be pro gay marriage despite Cayman law and Constitution and now after today’s ruling Caycompass says gays will just have to wait a little longer etc. The media here seriously wants gay marriage regardless of the constitution they claim provides this right to gays, which IT DOES NOT!!!!
      Born Caymanian!….young Caymanian! Educated Caymanian! Bachelor’s degree holding Caymanian! Proud Caymanian!
      Long live Caymanians and may the Cayman Islands always respect God regardless if the human being who publicly declares God to be Almighty sins and falls short of His Glory. Being a sinner or Christian that isn’t perfect like Christ does not disqualify the person’s point if they are accurately defending God’s word.
      From a legal perspective on this gay marriage issue in Cayman…the Constitution is clear on the point of marriage and the authority of the legislature and the role of the Chief Justice. The Chief Justice severely overstepped his boundaries from a layman perspective.
      The whole legal fraternity and law school should put their expertise to use and explain to the public how it can be possible that the Chief Justice’s ruling is lawful????????

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      • Anonymous says:

        “May the Cayman Islands always respect God regardless if the human being who publicly declares God to be Almighty sins and falls short of His Glory”… so, Educated Caymanian, what “sins” do you consider OK while gay marriage is not OK? Spousal abuse, adultery, theft, all fine? But two ladies getting married and living a happy life together, not fine? Ignoramous!

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  12. Anonymous says:

    Church bots at it again. I’ve figured out what they do with that tithing money… buy a bunch of computers and the out of work parishioners jump from computer to computer to go against any comment that is pro human rights. Hilarious.

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    • A Young Caymanian says:

      Exactly. As a person with plenty of knowledge and experience of the cyber network, it is very plain and easy to see the loophole with these likes and dislikes which are caused by bots and copies. Nothing here is statistically correct.

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    • smh says:

      Wow, you really do have an imagination. Maybe you should drive around and find that secret group, or open your eyes and see enough locals don’t want this in Cayman.

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  13. Arthur Rank says:

    It’s very sad, a community is built on law, it’s own morality, and somewhere in the mix is the individuals stance based on their particular religious views. That last bit is individual, the law is all embracing.
    What is happening in this debate is that moral luminaries like the minister for education, are making base assumptions that their particular religious views over ride all others, and that the law is secondary. That isn’t how it should be, religious views are your own, and lawmakers in particular have no right to apply their views to those whose beliefs are different.
    So, madam Juliana Connor O,Connolly (did I get that right?), if you don’t want to marry a person of your own gender, then don’t, but don’t tell others they may not. You clearly have your own form of morality, abide by those standards (a question there!) and don’t judge others who may be more moral in other senses than you are.

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  14. Anonymous says:

    Either way a constitutional change should be up to a referendum, not one judge. For get wasting time and money on a cruise referendum, we need one on SSM

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    • Anonymous says:

      Of those two issues, SSM is really the one you think is going to have a bigger impact on the future of this country? Really, get a grip.

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  15. Anonymous says:

    Born Caymanian says good luck today. You ARE on the right side of history and no matter what, your names will be honored for future generations whereas our inept gov leaders will be dead and forgotten. Love wins always!!!!!

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  16. Another Born Caymanian says:

    We should focus more on the heterosexuals that choose to have 3+ children while having a collective household income $2000 so they then have to rely on NAU to raise them, which you and I have to pay for at the end of the day through taxes. Two gay people getting married doesn’t affect anyone.

    Morality? My parents went to church all my life and guess what? They divorced due to adultery. Typical religious Caymanian hypocrisy. Love them still though.

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    • Rakulko says:

      Which taxes are you talking about?
      Do you pay taxes in the Cayman Islands?????

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      • Anonymous says:

        5:04 pm, taxes/duties on everything you eat, drink, wear, Vehicles, building supplies, land sales, fuels, even Bank transactions etc. etc., but no income or property tax.

      • Anonymous says:

        Yes you plonker we do. On everything we consume. How else do you think the Gov gets its spending money?

  17. Born Caymanian says:

    Rachet the cost, yes! The fight is worth it to the end. 100% behind my leaders. For the glory of God, my Family, my Culture, and Morality 🙌🏼🙌🏼🙌🏼🙂

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    • A Young Caymanian says:

      Are you serious? These funds can be used on some more important issues such as CCTV upgrades, the continuation of the expansion of the airport, the public transport system, etc. Instead, you will waste it on this case to create even more discrimination against other Caymanian people. This is why there are more foreigners here while the young Caymanians want to leave this island and this makes me embarrassed to be Caymanian. You care more about this case than some child being raped on the streets and the rapist never caught because of no CCTV functioning. Makes me sick.

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    • Anonymous says:

      You are such a good Christian. Praying for you and others like you who interpret the Bible to fit your discriminative agenda. Glory be to you your highness and judge of all over the supposed maker you believe in.

      Seriously, where in the Bible does it tell you to fight the battles for this supposed maker? Try living your life the best you can and maybe you’ll get to your supposed heaven cause the way you people are spewing hate really sends a hell kinda vibe.

      It’ll so piss y’all off when (and I don’t believe in heaven but let’s act like it) us atheists end up in heaven for being good people and you judgey religious bunch end up kissing Satans arse.

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    • Anonymous says:

      Why do you care so much? If you don’t like same sex marriage don’t marry someone of the same sex. Stop telling other people how to live their lives!

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      • Vice versa says:

        And you .. please stop forcing the country to approve and recognize your lifestyle.

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        • Anonymous says:

          No one cares about your approval. They just want access to the same rights. You are free to continue holding your views, once those views don’t affect other people living their lives. Just like how these people getting married will not affect you living your life. See how that works?

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    • Anonymous says:

      Wouldn’t like to be you when you reach the pearly gates and the opinion of the only one (according to your own Bible) who is in the position to judge mankind. Better start sharpening your pitchforks because you and all your other so-called ‘Christian’ cronies are sure to be sent down below.

      Walk good.

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  18. Anonymous says:

    So what you’re saying is that this whole fiasco is because gov refused or failed to implement framework for their union years ago, forcing the court to allow same sex marriage today.

    Now gov is crying because their inaction caused the marriage definition to be changed, and is appealing. If their appeal is successful, they will then be forced to implement the same sex union, still granting rights to the homosexuals.

    At the end of the day, the homosexuals will get their rights, and CMA will get butthurt. What a waste of time and money.. good luck ladies.

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    • Anonymous says:

      No waste of money, money well spent. If these two did not challenge our Constitution we wouldn’t have to spend this money. The same how they spend millions to defend murderers, rapists and other criminals when we have facts to know that they are guilty, they have a right to defend our Constitution for the majority of the Caymanians also.

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      • Anonymous says:

        And clearly the money used to educate you was wasted as you have no clear understanding of the history of discrimination. I pray that no one every comes for you, you will have no one left to protect you from the majority.

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      • Anonymous says:

        Amen and Hallelujah! I feel God in our midst…corrupt individuals and interest groups trying to impose their lifestyle on Cayman. Go to California or the UK! When reasonable Caymanaians go to other countries they dont try to change their laws and culture….they simply pass through or choose not to live there or keep to themselves.

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        • Anonymous says:

          The people trying to impose their lifestyle on Cayman ARE CAYMANIANS!

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        • Anonymous says:

          But aren’t you trying to force your religious beliefs and lifestyle on them. You are preventing them from getting married…what will them getting married prevent you from doing?

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      • Anonymous says:

        The judge has changed it to defend human rights. The judge was defending the constitution for *ALL* Caymanians — to ensure that all Caymanians are guaranteed human rights.

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    • Anonymous says:

      Wrong. Its worth every penny.

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  19. Anonymous says:

    Lets hope common sense prevails and this is ended here. Let the ladies live their lives in peace without discrimination and enjoy their wedding which they will have spent time and money arranging.

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  20. Anonymous says:

    Can’t wait for 3pm! I know the judges have more common sense and decency than our elected officials. Wishing the ladies the very best and a beautiful and long lasting union no matter the results!!

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