February 24, 2020

Cayman Islands and marriage equality: politised and flaw judgment by the Court of Appeal

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By Leonardo Raznovich

Leonardo Raznovich FILE

It is a sad day for Caymanians because their constitution has not been properly upheld by their own courts, and for this reason a sad day for the jurisdiction and its future and I would express my utter disgust at the politicised judgement and epic and inexcusable failure of the Court of Appeal to apply correctly the law and find appropriate and adequate constitutional remedy for Chantelle and Vickie.  

The remedy is in the constitution; the judiciary of Bermuda found it even though its constitution is older and more rustic than ours; but our Court of Appeal not only closed its eyes to it, but went one step further.  For the avoidance of doubt, to conclude that a court of law cannot provide a remedy to an applicant in circumstances in which the government admitted in court to have breached the constitution and is prepared to do nothing about it, defies basic principles of constitutional law; a law student would have failed irremediably.  For this reason only, these judges do not deserve the title of judges, let alone of jurists. More disturbingly, by implication, the Court of Appeal also decided to read in the constitution words that are not there, a technique of constitutional interpretation that it is allowed only to expand rather than to restrict rights by holding that section 14 defines marriage when in plain English it does not. The conclusion is so absurd that in fact all churches in the have today lost the constitutional protection to marry people in that if the constitutional right to marriage can only be derived from section 14, then churches in the jurisdictions could not complain if in the future a government were to take away their right to conduct religious marriages legally binding.  Nowhere in section 14 the word religion is mentioned; such a right could only derive from section 10 but after today’s judgment that section cannot be engaged to imply a right to marry under the constitution. This Court of Appeal could only conclude so because its decision is, in fact, not based in law, but it is based in politics; this is the Achilles’ heel of this decision today and it is the reason why the Court of Appeal will be reverted in London by a ‘court of law’ applying the law and restating Chief Justice Smellie’s judgment as to what the constitution of the requires. 

This is not the first time in modern times that a court of law of a western democracy wrongfully restricts fundamental rights by implication, but it has been a long time since a court of law has done so in such a shameful way.  In the 1930s Adolf Hitler’s party, the National Socialism, won the general elections in Germany, catapulting Hitler to become the Chancellor of Germany.  Amongst his first measures was to prohibit interreligious marriages between Jewish and German people in order to preserve the purity of the Arian race.  A case was brought before the court in Germany, but the court dismissed it on grounds that it was a matter of policy for the state, as determined by the will of the German people, to decide who should benefit from the institutions of the state, such as marriage.  At the same time, many states in the United States passed similar legislation, but contrary to the German government’s anti-Semitic policy, the will of the majority of the American people led to the prohibition of interracial marriages, but on similar grounds: in order to preserve the purity of the white race.  A case was brought to the court that challenged the constitutionality of these laws, but a court in Virginia rejected it on grounds that God made races and placed them in different continents, hence the legal prohibition agreed with the will of the Creator and could not be unconstitutional.  

The stupidity and indecency of the German and American courts of those times is what the Court of Appeal of the Cayman Islands has dastardly followed today with its judgment. It is surprising that Goldring and Morrison seem to have turned their back on these historical precedents. Some judges are defined and remembered for their braveness in doing what the law requires notwithstanding that their decision may be exceptionally unpopular.  Other judges are just cowards and prefer to take a blinkered approach that somehow appeases the majority and shields them from backlash. Justice Smellie is an outstanding example of the former.  But the law, in the end, prevails.  The German court was eventually corrected as a consequence of the Nuremberg trials and the American court of Virginia was corrected by the United States Supreme Court in Loving v Virginia.  This Cayman Islands Court of Appeal will be corrected by the Privy Council. 

Dr Leonardo J Raznovich, Barrister 
——————————————-
Visiting Senior Research Fellow 
Intersectional Centre for Inclusion and Social Justice

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