Cayman Islands Government Appealing Same-Sex Marriage Ruling

Premier Alden McLaughlin says the implications of the court decision for the Cayman Islands Constitution are significant and potentially far-reaching and go well beyond the rights of same sex couples.

GEORGE TOWN, Cayman Islands, Wednesday April 3, 2019 – Five days after the Chief Justice rewrote legislation to make same-sex marriage legal in the Cayman Islands, the government has announced it will appeal the ruling.

Premier Alden McLaughlin told Parliament today that the government
has instructed Attorney General Samuel Bulgin to file an appeal with the Court
of Appeal and seek a stay of execution of the judgment pending the outcome of that
appeal.

Last Friday, Chief Justice Anthony Smellie amended the Marriage
Law in his judgment on a case brought by Caymanian Chantelle Day and her
partner Vickie Bodden Bush, whose application to get married was refused last April.
He said that preventing those persons from accessing marriage and the suite of
rights that come with it was a clear violation of freedoms guaranteed in the
Constitution, including the right to a private and family life, the right to
freedom of conscience, and the right to freedom from discrimination.

The ruling, which took immediate effect, was for the clause in the
law that specifies marriage is reserved for heterosexual couples to be amended
to state that: “Marriage means the union between two people as one another’s
spouses.”

Premier McLaughlin said appealing the ruling was not a decision
the government had taken lightly. But he said Smellie’s judgment had brought
about significant ambiguity surrounding the Constitution and Bill of Rights and
the interpretation of and ability of the Court to amend other laws should
similar applications be made.

If the ruling was left unchallenged, he said, “the implications
for the Cayman Islands Constitution are significant and potentially
far-reaching and go well beyond the rights of same sex couples”.

“I and my entire government have great respect for the Hon. Chief
Justice and indeed the independence of the judiciary. But even the best judges
get it wrong from time to time. Hard cases make bad law. None of us who are human
are infallible,” he said. “Government believes that in his determination to
right what he has described as injustice and indignities suffered by the
petitioners in the same-sex partnership case, the Hon. Chief Justice may have
exceeded the scope of the powers conferred on the Court by the Constitution and
in doing so, some have argued, assumed the role of this Legislative Assembly in
deciding on what should be public policy and then legislating for it.”

McLaughlin contended that introducing the entirely new concept of
same-sex marriage into the existing Marriage Law goes way beyond any reasonable
interpretation of modification or adaptation.

“This, we believe, might be inconsistent with the separation of
powers by trespassing on the constitutional remit of this Legislative Assembly,”
he said.

The Premier outlined the government’s main points of concern, based
on the Executive Summary of the Court’s judgment.

Firstly, he said, the implications of the Court’s decision for
other types of marriages (for example, polygamous marriage), and whether
Government would now be bound to give effect to or recognise such marriages if
an application for a marriage licence is made for a man to marry multiple
wives.

The second concern relates to the extent of the powers of the
Court under Section 5 (1) of the Constitution to modify legislation on matters
such as the right to marry, bringing into question the appropriate separation
of powers under the Constitution and whether by exercising these powers under Section
5 (1), the Court has exceeded its mandate under the principle of separation of
powers. 7 

A third concern is whether, given the language in Section 14 (1)
of the Constitution, it was open to the Court to find that the right to marry
and found a family, could be located in other rights within the Bill of Rights,
namely, Sections 9 and 10 of that document.

“After very careful consideration of the three main points
previously mentioned, the Government is of the view that the issues are of
fundamental constitutional importance and therefore it is in the public
interest to have them considered and determined by an appellate court,” he
said.

On Monday, Governor of the British Overseas Territory, Martyn Roper said he was in favour of the judgment which he said provides equal rights for everyone.

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