(CMR) The government won it's appeal against the same-sex marriage case today in what can only be said is a partial win. The Court of Appeal allowed the Government's appeal in the same-sex decision but issued a strongly worded declaration indicating the Legislative Assembly has a positive obligation to rectify the current situation as it is an “unsatisfactory state of affairs” that is making the respondents suffer in many ways.
In a 37 page judgment, the three-judge sitting court found that the respondent's lawyers, Edward Firzgerald QC, had put forward certain positions that it was not willing to accept. In general, terms when looking at section 14 of Bill of Rights (BoR) they found that they cannot accept that the argument that it was included to protect the institution of marriage from abolition as was argued on behalf of the respondents. The judges further found that s. 14(1) of the constitution clearly defines marriage between a man and a woman and that the working “precludes same-sex marriage.” The judgment concludes that “meaning and effect have to be given to the words, “a person of the opposite sex.”. If the framers of the constitution intended to include same-sex unions in that definition the use of that terminology would have been “otiose and misleading”.
The judges also found that the omission of the word “only” before “of the opposite sex” does not support the argument that the limited can, therefore, is ignored, circumvented, or expanded to include same-sex.
They further found that the Chief Justice's conclusions that the government's interpretation of section 14(1) would mean that they are denied the right to found a family with the same protections of opposite-sex couples was erroneous. Instead, it accepted the government's argument that the BoR may restrict the right to marry but that not deprive them of the right to respect for private and family life under section 9 of the BoR and Article 8 of the European Convention on Human Rights (ECHR).
In a critical interpretation relating to the BoR providing a broader right to marry pursuant to sections 9 and 10 the court found that could not be the case or section 14 would not have been necessary to include at all. It does accept that the BoR is based on the ECHR and that the United Kingdom's Parliament fully intended that the “pattern of the BoR should follow that of the ECHR.” The judges concluded that Article 12 did impose an obligation to grant same-sex couples access to marriage. The obligation only arose in respect of opposite-sex couples; so a right to marriage could not be derived from Article 8 in conjunction with Article 14. These sections must be read in harmony with Article 8. The construction of the BoR should, therefore, be informed by the jurisprudence of the ECHR and that was the intention of the framers of the constitution.
The court also made an observation that despite changing “social mores” relating to same-sex marriage there is no right to same-sex marriage in a number of Caribbean jurisdictions. Equally, there is no universal right in Europe either.
In its conclusion, the Court of Appeal found that they understood how and why the Chief Justice reached his decision. However, they concluded that the decision was legally incorrect and allowed the government to win this round and set aside the orders by the Chief Justice. However, the judges made a declaration that despite this being their decision they must state that the government has already accepted that section 9(1) of the BoR requires the Legislative Assembly to provide the parties with “legal status functionally equivalent to marriage.”
However, in a rare move, the court also made a strong declaration that the Legislative Assembly must expeditiously address the longstanding and continuation violation of Article 8 of the ECHR. The declaration also found that there was a “longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under section 9 of the Bill of Rights.”
“They found that Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage.”
In conclusion, it added that they were “driven to make this final observation” – the court is an arm of the government and any constitutional settlement requires the executive and the legislature to obey the law and to respect the decisions of the court and it would be “wholly unacceptable for this declaration to be ignored” and there can be no further justification for further delay.
Day indicated when walking out of court that they will reflect on the full reasoning for the decision and in consultation with their lawyers decide what the next appropriate step should be. They do have the option of appealing this to the Judicial Committee of the Privy Council.