Caymans

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Monday, Dec 09, 2019

CI Premier “Pleased” with Same Sex Marriage Ruling

CI Premier “Pleased” with Same Sex Marriage Ruling

The Appellate Court in the Cayman Islands stopped short of granting full marriage rights to a lesbian couple seeking to legitimize same sex marriage in the Territory on Thursday, 7th November. The ruling essentially overturns the precious ruling by the Islands’ Chief Justice Anthony Smellie, which called for the legalization of same sex marriage to be allowed.
Cayman Islands Premier Alden McLaughlin issued a statement in response to the ruling stating:

“I am pleased that the Court of Appeal has agreed with Government that the original ruling brought significant ambiguity surrounding the Constitution and Bill of Rights and the interpretation of and ability of the Court to amend laws. We believed it was critical that the country had the benefit of clarification on these very important constitutional issues,” Mr.McLaughlin said. “While I do appreciate the ruling, I am mindful that it comes with a declaration that requires immediate action from the Government.”

“The Court of Appeal declared that “Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage”.

According to the Premier, Government had three primary points of concern with the original ruling of Chief Justice Anthony Smellie, QC:

“A. Firstly, 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 license is made for a man to marry multiple wives.

“B. The second concern related 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.

“C. And a third concern was 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.

“The Government will carefully consider the full judgment to determine how best to proceed.”

By overturning the chief justice’s ruling, the Court of Appeal has essentially upheld the original definition of marriage under Cayman Islands law as the union between a man and a woman.

They Appeals Court however, indicated that government needed to urgently provide a legal equivalent of marriage to Day and Bodden Bush.

The Attorney General’s Chambers had accepted during the course of this appeal that they must accommodate same-sex unions. Though the Cayman Islands government has not been in any rush to provide such legislation.

The Appeal Court has only given the Cayman Islands Government a guideline and not a specific timeline with regard to when it must act to provide such legislation however, and it is quite possible that nothing may change until the governor intervenes.

Instead the court said, “Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands which is functionally equivalent to marriage.”

The Appeals Court also stated, “It is difficult to avoid the conclusion that the Legislative Assembly (in the Cayman Islands) has been doing all it can to avoid facing up to its legal obligations,” and called upon the United Kingdom to see to make sure that civil partnerships or a legal equivalent are implemented if the Cayman Islands government fails to do so.

The judgment goes on to say, “It would be wholly unacceptable for this declaration to be ignored.

“Whether or not there is an appeal to the Privy Council in respect of same-sex marriage, there can be no justification for further delay…” said the Judges.

Attorney for the Day and Bodden, Mr. Benjamin Tonner was noticeably disappointed after Thursday’s ruling. He expressed his concerns to the press subsequent to proceedings:

“Although the Court of Appeal has stated that an equivalent framework to marriage is required without delay, it has also decided that the government may continue to deny same-sex couples access to marriage itself,” he said.

Mr. Tonner added that the Appeals Court has taken a more conservative view than the Chief Justice, who in his ruling earlier this year found, “…… the indignities to which the petitioners and their daughter have been subjected should be put to an immediate end by the court amending the Marriage Law.”

The women’s Attorney noted that his clients may could appeal to the Judicial Committee of the Privy Council in the matter.
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