HRC: Appeal in same-sex marriage case ‘unarguable’

(CNS): The Human Rights Commission has said that government’s decision to appeal Chief Justice Antony Smellie’s judgment in the same-sex marriage petition will fail because the grounds are “weak to the point of being unarguable”. The HRC said government’s decision to commit hundreds of thousands of dollars of public money to appeal, based only on the executive summary and not the full judgment, was extraordinary and it was regrettable that it was seeking to re-litigate the case in an attempt to maintain discrimination.

The HRC is calling on government to review the full judgment before “it pursues this ill-advised appeal” and properly consider its legal position, given that it has a duty to the public under s.19 of the Constitution to make decisions that are rational.

“Unjustified state-sponsored discrimination has no place in a modern democracy and it is unlawful under Cayman’s Constitution,” the commission said in a lengthy statement from the chairman, attorney James Austin-Smith.

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The case in question was brought by Chantelle Day and Vickie Bodden, a same-sex couple, after they were refused a marriage licence. It was heard by the chief justice in February, and on 29 March he ruled in their favour. In order to make the marriage law compatible with the Bill of Rights, he modified the legislation from the bench and legalised same-sex marriage.

However, on Wednesday the premier announced that government would appeal the ruling. He said the  decision had been made in Cabinet on Tuesday, admitting that at that point it was based only on the summary of the ruling, which is around 40 pages, and not on the full judgment, which is understood to be several hundred pages.

The HRC said it has now received and read the full judgment, and it was only after reading the entire document that it released a statement.

The commission found that the case for appeal is weak, not only because the chief justice ruled against the government on every single point but because its own legal team had either failed to provide a response to many points made by the petitioners or had conceded that they were indefensible.

The government’s legal team was led by Sir Jeffery Jowell QC, a preeminent constitutional lawyer and the consultant contracted by government to advise them on the crafting and negotiations leading up to the creation of the 2009 Constitution.

“The government conceded during the litigation that the legal position in the Cayman Islands was
discriminatory,” the HRC said, adding that the chief justice had found government’s attempted justification for that discrimination “collapses and fails at the first hurdle” as clearly not being within the law.

The HRC accused government of pressing ahead with an appeal without fully understanding the details of the ruling, demonstrated by comments made in the Legislative Assembly on Wednesday. The commission urged the public to read the judgment, which makes it clear what the law is and what the court’s role is in protecting the rights enshrined in the Constitution.

The commission also said that the prevailing opinion in the Legislative Assembly that an appeal was necessary to protect the separation of powers was inaccurate. It is settled law that where the Legislative Assembly has previously passed a law that is contrary to the Constitution, the court is obligated to modify that law, the HRC explained.

“This is not an area for judicial discretion – the court has no choice,” the commission stated.

During the trial, as the case was argued before the chief justice, the government’s lawyers also made this concession and could not have done so without instruction from their client.

Given that the case is very weak, the HRC raised concerns about the cost to the public purse, as government has already been ordered to pay the petitioners’ costs for the original trial in addition to its own costs.

“The first trial has cost the public hundreds of thousands of dollars. This ill-considered appeal will waste many hundreds of thousands of dollars more,” the commission stated, noting that it receives regular complaints from Caymanians who cannot afford basic necessities like shelter, medical care or even clothing.

“Our underfunded NAU could make a real difference for the most vulnerable with these funds. Last month the Meals on Wheels charity, which provides food for seniors, the home-bound and the disabled throughout Cayman, noted that there was a waiting list for its services of over 80 people in West Bay alone.”

The commission listed numerous social welfare areas where the money could be much better used. And it pointed to the perpetuation of discrimination that the appeal is seeking to achieve, while all the petitioners were seeking was to be treated with the same dignity and equality that other Cayman residents enjoy.

As the commission established to ensure that the Bill of Rights is upheld, the HRC also questioned the claims that the majority of the public wish to perpetuate discrimination against same-sex couples. The commission said the fundamental principle of the Constitution is that it will respect and protect the rights of the minority, even if the majority will not.

Read the full statement from the HRC in the CNS Library