GEORGE TOWN, Cayman Islands, Monday April 1, 2019 – The Cayman Islands government is contemplating its next move after the Chief Justice Anthony Smellie handed down a ruling that made same-sex marriage legal in the British Overseas Territory.
In his judgment on a petition filed by Caymanian Chantelle Day and her partner Vickie Bodden Bush after they were refused an application to wed in April 2018, Smellie 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.
“By its ongoing refusal to recognize and respect these rights of the petitioners, the state has been and remains in violation of their rights,” he said.
He therefore 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.”
That amendment comes into effect immediately and does not require ratification by the Legislative Assembly or the governor, as Smellie used his powers under the Constitution to rewrite the law.
While the couple, who have an adopted daughter, were ecstatic about what they called the “right result”, with Day saying that it showed that “love wins”, Attorney General Samuel Bulgin described the Chief Justice’s ruling as “very interesting”.
“The government will have to take some time to consider it and think about how to move forward,” he told the media as he exited the court.
In his ruling, the Chief Justice dismissed government’s argument that Section 14 (1) of the Constitution, which enshrines the right to marry for opposite sex couples, can be interpreted as a blanket ban on marriage for same-sex couples.
And he said an amendment to the Marriage Law in 2008, to specifically define marriage as exclusively between a man and a woman, had imposed “indignity, inequality of treatment and inequality of legal status upon same-sex couples”.
The Chief Justice was the court’s duty to intervene to modify laws that did not comply with the Constitution, particularly in cases where the state had failed to act.
“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,” he said, adding that the decision did not threaten traditional marriage.