A long-simmering debate over rights for same-sex couples reached boiling point this year. First, the Grand Court legalised same-sex marriage, sparking outrage in the Legislative Assembly and uproar among some elements of the Christian community.
Then the Court of Appeal overturned the decision, kicking the issue back to the elected government with an admonishment for its inaction and a direction to rectify the breach in human rights for same-sex couples.
The issue was forced onto the agenda of policymakers by a court action from Caymanian Chantelle Day and her partner Vickie Bodden Bush. The couple brought a legal challenge to the registrar’s decision to reject their application to marry.
The trial
At the initial trial in February, lawyers for the couple said denying marriage rights to same-sex couples was “simple discrimination” and violates rights guaranteed under Cayman’s Constitution. They argued that Cayman’s same-sex marriage ban violates their right to a private and family life, freedom of conscience and freedom from discrimination.
Government’s lawyers insisted the Constitution explicitly outlawed such marriages, but acknowledged there may be a case for civil unions.
The ruling
In a landmark decision on 29 March, Chief Justice Anthony Smellie ruled that the definition of marriage in Cayman’s Marriage Law, as between a man and a woman, was unconstitutional.
He took the unusual step of directly altering the law to allow for same-sex marriages.
He said this was his only choice given the proven breach of the couple’s human rights.
“This Court is … bound not to allow the violation of the Petitioners’ rights to continue without redress. The Constitution, in its mandatory requirement that the Law be brought into conformity, must prevail. The Petitioners and their daughter are entitled to the indignities to which they have been subjected being put to an immediate end by the Court.”
The reaction
Government almost immediately announced plans to appeal the decision, citing concerns over judicial overreach.
Legislators weighed in with unanimous criticism of the judge’s decision, suspending government business for two days to allow for discussion of the issue.
Some, like East End legislator Arden McLean, objected to the court’s directly changing Cayman law.
“When the chief justice takes it upon himself to change our laws, it is necessary to challenge him,” he said.
Others, like Savannah legislator Anthony Eden, had more general objections to homosexuality.
“Man’s laws cannot make moral what God has declared immoral,” he said.
The debate sparked concern from the Human Rights Commission, which described the appeal as “ill considered” and took issue with some of the language used by legislators in their condemnation of the decision.
Demonstrators gathered in the streets to show their support for the couple, while others protested the decision.
Day told the Cayman Compass in April that the couple was disappointed by some of the reaction, but she said they believe they are on the “right side of history”.
The stay
On the day the couple was due to be married, the Court of Appeal intervened, granting government’s request for a stay of execution of the judgement until after an appeal was considered.
Announcing the decision, Justice John Goldring said the judges had read and considered the “moving and detailed” affidavit of Day and were in “no doubt” of the prejudices she and her partner faced.
But, he said, there were grounds for a ‘stay’ to be put in place delaying the impact of the decision.
The appeal
Government lawyers argued that they had the right to restrict marriage to same-sex couples, when the appeal began in August.
“The limitation of marriage to opposite-sex couples has been found repeatedly by the European Court of Human Rights not to offend against basic human rights,” Dinah Rose, QC, told the court.
They did not contest that failing to offer rights to same-sex couples, similar to marriage, was a breach of their human rights
In November, the Court of Appeal announced that it was overturning Chief Justice Anthony Smellie’s decision but declared that the couple, and other same-sex couples, were entitled to “legal protection in the Cayman Islands which is functionally equivalent to marriage”.
The judges ordered that government move quickly to introduce such rights and suggested the UK should intervene if Cayman’s legislators did not act.
What’s next?
The debate is still rumbling as the end of the year approaches.
Amid the turmoil of the cruise port referendum and the budget debates, Premier Alden McLaughlin said any legislation on civil unions for same-sex couples would have to wait till next year.
He said the Legislative Assembly had to consider the issue “expeditiously but not hastily”, and accepted that some form of domestic partnerships legislation was likely necessary.
“I believe the responsible thing for this House to do is to face up to this issue and take its own decision,” he said.
There is still scope for the couple to appeal to the Privy Council, the highest court of appeal in the UK, in an effort to reinstate the chief justice’s original decision implementing full marriage for same-sex couples.
“That is definitely something we are aware is available to us and we are considering it,” Day told the Compass in November.