GEORGE TOWN, Cayman Islands, Friday April 12, 2019 – On the same day two women were to become the first same-sex couple in the Cayman Islands to get married, a Court of Appeal stayed the High Court decision that would have made the wedding possible.
The right given to same-sex couples to marry in the British Overseas Territory has been suspended, pending the hearing of government’s appeal against Chief Justice Anthony Smellie’s rewrite of the law to legalize same-sex marriage.
The Court of Appeal handed down that decision on Wednesday, after government sought a stay to prevent the Chief Justice’s ruling – which was handed down in a challenge to the Marriage Law filed by Chantelle Day and Vickie Bodden Bush after they were refused an application to wed in April 2018– from taking effect until its appeal is heard.
President of the three-member panel, Sir John Goldring said the court accepted the point raised by attorney Reshma Sharma on behalf of the attorney general that there was a risk of creating a legal anomaly if same-sex couples were allowed to marry and the Chief Justice’s decision was later overturned on appeal.
He said the judges had read and considered Day’s “moving and detailed” affidavit and was in “no doubt” of the prejudices she and Bodden Bush faced. But, he said, there were cogent grounds for a stay to be put in place.
The judge said the court was also conscious of the administrative changes that may be required to give effect to Smellie’s judgment.
“It is not without hesitation that we have concluded that the interests of justice do require a stay in this case, pending the decision of this court,” Justice Goldring said.
The court will hear government’s appeal at its next sitting in August and make a decision on whether the Chief Justice’s ruling should stand.
In his judgment delivered on April 1, the Chief Justice ordered a rewrite of the Cayman Islands’ Marriage Law, saying that preventing same-sex couples 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 Chief Justice ordered that the clause in the law that specifies marriage is reserved for heterosexual couples should be amended to state that: “Marriage means the union between two people as one another’s spouses.”
The government, in its appeal, maintains that the Chief justice overstepped his powers by revising the Marriage Law directly, to create what Sharma described as “a new species of marriage”.
But David McGrath, who was representing Day and Bodden Bush, said government’s grounds for appeal were simply a rehash of arguments that had been unsuccessful at trial. He said they were “totally without merit” and had “no chance of success”, and it would be unfair to his clients to deny them the “fruits of their judgment”.
Justice Goldring said the Alden McLaughlin-led administration did not have to prove that it had a realistic chance of success on appeal to be granted a stay. He said the government simply had to prove that it had an arguable case, which it did.