QC argues for PC to reinstate gay marriage in CI

| 23/02/2021 | 35 Comments
Cayman News Service
Chantelle Day, Vickie Bodden-Bush and Dr Leo Raznovich watch the Privy Council proceedings via video while Edward Fitzgerald QC presents their case

(CNS): Marriage is a secular institution but Chantelle Day and Vickie Bodden-Bush continue to be discriminated against and their human rights denied on religious grounds, Edward Fitzgerald QC argued before the Privy Council in London on Tuesday, as he urged that court to reinstate Chief Justice Anthony Smellie’s ruling from March 2019 which legalised same-sex marriage. As the case opened in the UK court, the women’s lawyer spent most of the day setting out a detailed and nuanced case for his clients.

Day and Bodden-Bush have appealed to the Privy Council to overturn the ruling by the Cayman Islands Court of Appeal, which upheld the government’s appeal of the original judgment from the chief justice. Fitzgerald, who has represented the couple since their original successful Grand Court case, outlined the findings of the chief justice, the violation of the couple’s rights and the key rulings in that original case.

Talking about the difficulties “of a formidable nature” that the couple have endured since they started this legal journey, he said the government had known it had an obligation to address the violation of their human rights for five years. And even now, following the enforced introduction of a Civil Partnership Law by the governor because legislators would not do it, that too is facing a legal challenge.

“Even the provision of a limited civil partnership regime is now itself under legal threat,” he said. “By contrast, had the chief justice’s judgment of 29 March 2019 remained in force, the appellants would by now have been validly married.”

He said that was why this matter cannot be left to the Cayman legislature to deal with, because whatever it does today, it could undo tomorrow unless the law is underpinned by the Constitution. But he also argued that even if the civil partnership regime was solid, it is still not fair or sufficient.

“This is not just about labels; it is about the spiritual and emotional reasons why a couple… want to be married and the obvious discrimination in reserving marriage itself for heterosexual couples alone and relegating same-sex couples to the alternative institution of civil partnerships and no more,” Fitzgerald said.

The long-running legal case, which began in the summer of 2018 after the two women were formally refused a marriage licence, has fuelled a political controversy that remains a long way from being resolved. Almost three years after they began their wedding plans, the couple are still not married, and they are still discriminated against and still not able to enjoy their right to a private family life, as required by the Cayman Islands Constitution.

Since the ruling by CJ Smellie was overturned, Governor Martyn Roper has implemented the Civil Partnership Law, in line with a direction from the Cayman Islands Court of Appeal after the government was unable to pass the legislation in Parliament. But the assent of that law continues to cause controversy and is being challenged under a judicial review application, which has been accepted by a judge in the Grand Court.

And while this does enable same-sex couples to access legal rights afforded to married couples, it is still a different and therefore not equal institution.

Day and Bodden-Bush had already appealed to the Privy Council over the appeal court’s finding against them when this law was passed. Given their desire to marry, as outlined by Fitzgerald, rather than register for a civil partnership, they have continued on their legal mission to get the marriage law changed in Cayman to accommodate same-sex couples as they had successfully achieved in March 2019.

Outlining a multitude of legal reasons why the chief justice was right in the first place, Fitzgerald argued on Tuesday that the situation regarding marriage is evolving and there is provision in the Bill of Rights for the couple to marry.

In his submission to the PC, he argued the basic principle of equality before the law and pointed out that by denying Day and Bodden-Bush the right to marry, the government of the Cayman Islands was not treating them equally because of their sexual orientation. He said that the women are being discriminated against without reasonable justification, as is required when any exemption to a right is being applied.

Fitzgerald pointed out that his clients were being excluded from marriage on religious grounds and that there is “no such thing as a traditional marriage” in law. He said marriage is not a religious institution but one that Day and Bodden-Bush believe in and wish to access. But because of their sexual orientation and the position of a particular religion, the state is discriminating against them and violating their human rights by breaching their right to a private and family life.

As the Marriage Law, which was enacted before the Bill of Rights, falls foul of the Constitution, he argued that it has to be read in line with it. Therefore, the chief justice was right when he amended the Marriage Law from the bench.

The case continues.


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Comments (35)

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  1. Anonymous says:

    Is this an issue where the marriage itself is not as important as the related benefits?

  2. Anonymous says:

    It may take a long time, but eventually love triumphs over hate.

    XXXX and all the others like them can’t win. No matter how long it takes, they will lose. They are on the wrong side of history, the wrong side of fairness, and the wrong side of just plain human decency.

    They can’t win. They will have to content themselves to wallow in their own little bubble of hate, fear, religious fantasy, and imagined superiority. Sad.

  3. Anonymous says:

    The PC will NOT mandate gay marriage where civil unions exist, once they convey all the same privileges. It is too far outside of most existing legal and cultural norms, worldwide, even if Cayman is an OT.

    • Anonymous says:

      What makes you so sure?

      • Anonymous says:

        I’m not sure. Laws emanate from a culture. The culture of Cayman is exceedingly narrow, straightened and inflexible. Why bother to have gay marriage when the rest of the laws-especially the criminal laws-are so punitive and unreasonable and certain people are treated better than others and nothing is done about it? It would actually create one class of people-gays-who are treated better than the rest of the population! You need wholesale law reform.

        • Anonymous says:

          One thing doesn’t exclude another. And how are gays better treated by merely having same rights as you do? What if you were not allowed to have a right to marry who you love just because someone doesn’t agree with it? And what do criminal laws have to do with that right of yours?
          It seems to me that when someone doesn’t want to do a good thing they find a billion excuses not to do it.

  4. Concerned Citizen1 says:

    CNS: “And while this does enable same-sex couples to access legal rights afforded to married couples, it is still a different and therefore not equal institution.” … So, you believe in an EQUALITY that will undermine the rights of children to their biological parents? Just askin. I don’t think the term equality should not be used to infringed on other people’s rights – like freedom of speech and conscience, being branded “hate speech” in certain parts of the United States.

    Such play with words like equality, rights, discrimination, bigots, et cetera, can produce bad undemocratic results on our Caymanian society. There must be limitations to any minority preveleges; or else, we are in for persecuting other people here.

    Common sense tells us, CNS, when we uphold one right that tramples down on another right, we are not seeing a real fair and equal system.

    • Concerned Citizen1 says:

      Pardon my grammer

    • Anonymous says:

      Reading this comment was painful due to various reasons. Do you understand the meaning of words ‘equal rights’ and ‘privileges’, to start with? Rights don’t mean obligations. How much better do you require this to be explained ? Noone is taking any rights from anyone by simply providing equal opportunities to all. Just because I can eat oats for breakfast doesn’t mean you must eat them. It is that easy.
      By the way, I strongly believe there is no such thing as common sense. Simply because it doesn’t appear to be common. Rather rare.

    • Anonymous says:

      Two men or two women together is different than a man and a woman together. So man and woman marry, and 2 men or 2 women civil unions with the same rights should be fair. Nothing wrong with them no bad feelings towards them, it’s just different. Instead of husband and wife. It will be partner and partner. Live and let live. Let’s all respect one another.

  5. Anonymous says:

    Who cares

  6. Anonymous says:

    Can we throw a huge wedding when this is sorted for these ladies? I’d gladly pitch in a few hundred to celebrate in the most epic way possible!

  7. Anonymous says:

    can’t wait till these miscreants are relegated to the ash heap of history.

  8. Anonymous says:

    When are likely to hear about the outcome? Does anyone knowledgeable have any idea?

  9. John Harris says:

    Fingers crossed for Vickie and Chantelle

  10. Anonymous says:

    I may be wrong but I thought most Caymanians were committed (married) to their God through love! The same love these girls feel for each other. What is really wrong in letting them commit to each other?It certainly doesn’t blight anyones lives so let them enjoy life together as one!!

  11. Anonymous says:

    Best of luck, Chantelle and Vicki! You are supported.

  12. Anonymous says:

    Yes, yes, love wins…could we move it along please…

  13. Anonymous says:

    CNS, have you been following Bermuda’s privy case for both same sex marriage and legalisation of Cannabis? Very curious if they would set precedent for us.

    CNS: Yes, Wendy is following these cases.

    • Anonymous says:

      Likely to be ruled around the same time.

    • Anonymous says:

      Considering that the UK is the world’s top exporter of medical cannabis, it would be rather hypocritical for mother to deny her child legal cannabis if they vote for it.

  14. Anonymous says:

    No

  15. Anonymous says:

    I’m not even gay but I hope these ladies get full gay marriage rights just to bun the hypocrites that preach against gays using Leviticus and turn the other cheek to the woman beater up in parliament.

  16. end the discrimination says:

    Cheers for Vickie and Chantelle. Their courage and determination should be admired by all. Their attorney is absolutely right: The reason for “domestic partnerships” was obviously to make it clear that in the mind of Cayman bigots/politicians, gays are second-class citizens and not deserving of “marriage”. That’s because “domestic partnerships” do not represent either equivalency nor equality, just bigotry. Enough with the discrimination. My husband and I — yes, we’re gay — urge the Privy Council: Please do the right thing by bringing EQUALITY — i.e., “marriage” — to all in Cayman and throughout the UK territories.

    • Anonymous says:

      These women could have gotten married in the UK and claimed their rights in Cayman. This is not about marriage, this is about going down in history as being the people that changed Cayman marriage law

      CNS: Ignoring the malice in your comment for a minute, you are factually wrong. At the time when they first applied for a marriage licence here it had been recently determined that the same-sex spouse of a work permit holder could stay here as a dependent but the same-sex spouse of a Caymanian still had no rights. This meant that Caymanians were being discriminated against in their own country.

      • Anonymous says:

        And why not have same sex marriage here if Cayman is part of UK? No one wants to have to go through that same struggle they have been dealing with for years. And all of this could have been easily avoided if they were given any form of civil unions or anything like that at that time. Easy, really. But no, without any valid reason LGBTQ people are denied those same rights as you have. This should have been done half a decade ago and dusted. And even now there are attempts to take the semblance of equality away. What are so many of you so afraid of? Noone is taking your wives or husbands away. Good Lord ! Marriage it is.

      • Anonymous says:

        Good on them for being history makers. Quite often we celebrate those who make history.

  17. Anonymous says:

    Go get ’em girls!

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