Government has dug deep into the public purse to fight its appeal against the chief justice’s ruling earlier this year that legalised same-sex marriage in the Cayman Islands. As the much-anticipated hearing opened Wednesday, government was represented by Dinah Rose QC, a leading human rights expert from the UK, alongside Sir Jeffrey Jowel QC, the constitutional expert who had argued and lost the original case brought by Chantelle Day and Vickie Bodden.
Rose argued that Chief Justice Anthony Smellie was wrong when he accepted the case put forward by the two women and changed the marriage law as a way to deal with the lack of any legal framework to recognise same-sex unions.
Rose presented the crown’s case for appeal to a packed courtroom. Supporters of Day and Bodden, law students and a number of people opposing the couple’s right to marry were present, including Education Minister Juliana O’Connor-Connolly, who spent most of the morning’s proceedings in court and returned again for the afternoon session.
As the QC outlined the government’s case, she conceded that government had an obligation to introduce a legal framework to protect the rights of same-sex couples. But she argued repeatedly that, in line with the European Court of Human Rights and other international treaties and obligations, that did not mean same-sex marriage.
She also contended that there was no power in the Constitution for the chief justice to amend the marriage law as he did, and “the judge was wrong” when he did.
Rose accused the Cayman Islands’ top judge of misunderstanding case law in his ruling, which led him to make the decision that section 14 of the Constitution is discriminatory and even unconstitutional. She said his ruling was flawed and there was no legal basis for him modifying the law. She also accused the respondents of reinterpreting the arguments made by the chief justice in the appeal case.
Rose, who is a human rights expert, said the Cayman Islands Constitution was not one where discrimination was prohibited across the board, and argued that there was no need to justify section 14, the part of the Constitution which, the government argues, only preserves the right to marry for opposite-sex couples.
The QC told the appeal court that the trial judge was wrong when he described the Marriage Law as unconstitutional and discriminatory because it was based on religious principles. She argued that there was nothing to suggest that the motivation for the 2008 law was religious.
However, the government has consistently fought against allowing gay marriage because of Cayman’s Christian heritage.
Rose argued vigorously that the chief justice was wrong to find that the Constitution discriminated against Day and Bodden because they could not marry, and that he had no legal authority to modify the marriage law to address the problem.
But she conceded that the government was still in breach of the Constitution regarding the discrimination against the couple with respect to its failure to provide a legal framework for same-sex unions. Asked by the court how she was going to address that, she said she could not do so.
Rose said that government has not yet decided how it will provide the same rights to same-sex couples as those afforded to opposite-sex couples if gay marriage is not legal. She said the solution would depend on the outcome of the appeal.
The government, with the support of the opposition benches, has already passed a motion to pursue this case to the Privy Council of the United Kingdom if the appeal should fail this week. It is therefore apparent that it has no plans to rectify the issue of discrimination for Day and Bodden and other gay couples wishing to marry in the Cayman Islands, which the chief justice had sought to remedy.
Rose concluded her submissions on the government’s appeal just after 4pm Wednesday. Day and Bodden’s legal team will respond on Thursday, as the case continues.