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

| 04/04/2019 | 199 Comments

Cayman News Service(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

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Category: Government oversight, Local News, Politics

Comments (199)

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  1. Anonymous says:

    Independence are you serious? With the current inept bandits in gov this place would be worse off than Jamaica with independence.

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  2. Anonymous says:

    Yes our leader Honorable Bush will keep us strong!

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  3. Naya Boy says:

    Our dear leaders have finally awaken to find out just how far and just how much they have sold out and pimped out this little place .The problem is they can’t use the same excuse as those now charged in the other posted article on this website. Sham politricks are not going to work either! It’s truly sad when one also finds out that his loyal foreign servant has now become his local master????

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  4. Anonymous says:

    I vote for independence. Let the UK and the gay-loving people enjoy their life style but just not here in Cayman.

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    • Caymanian says:

      So was said for interracial marriages not too long ago..

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      • Anon says:

        Not the same thing. There is no homosexual gene. Science can prove no such thing exists. The homosexual lifestyle is a choice, unlike your race. I wish people would stop comparing the two, which is one for the arguments the CJ made in his ruling.

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        • Anonymous says:

          There is no stupid gene either but no doubt you were born as you are!

        • Anonymous says:

          I was born gay. Will always be gay. I don’t need no bloodwork to prove it. I always knew it.I didn’t choose it at no point of time. Why is it so hard to understand is beyond me. Just ask any gay person. Did you actually choose to be straight?

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        • Anonymous says:

          How can you make yourself like something or not like something by choice? It is either you do or you don’t. So simple. Being gas a given. Can’t enforce it. Or pray away

        • Anonymous says:

          Did you make a conscious decision on who you were attracted to, or did you just know who you liked? Is there a gene that dictates your attraction to the opposite sex? I’m guessing the answer is no to both those, so it kind of follows that if you didn’t make a choice, and you just know, then that would apply to everyone, gay or straight. Besides, apart from those that want to get married who does this affect? Did it affect you that I got married, nope, and I prefer to see this as none of my business on who likes who, or why, same for marriage.

      • Anonymous says:

        Interracial marriages not addressed as a sin in the Bible though. Christians not against who people chose to love in their private lives… they just want the definition of marriage to remain between one man and one woman. There is always civil unions.

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      • Anonymous says:

        If your gonna support the LGBT set at least come correct with a sensible comparison. Using racism is just plain pathetic and desperate.

    • Anonymous says:

      Silly comment 5.51, Independence is a sure way to ensure that NOBODY can enjoy any kind of lifestyle.

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      • Anonymous says:

        You are the silly one! Do you think it’s the Majesty that keeps our Island blessed and prosperous!? Think again!!

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    • Anonymous says:

      Good luck with that. Last ex-pat to leave, please switch off the lights because there will be nothing to see here!

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