April 8, 2020

The Editor speaks: Same-sex marriage stay appeal. Same arguments but the stay still won


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Colin Wilson

Acting Solicitor General Reshma Sharma outlined some of the details of the appeal to justify a stay on the implementation of Chief Justice Anthony Smellie’s landmark ruling that same-sex couples can now get married in the Cayman Islands.

For government’s sake I hope we hear some better arguments as what we have so far learnt is almost the same as they outlined to the Chief Justice. And we know the outcome of that.

Discrimination and the violation of the couple’s rights was not mentioned.

Government’s arguments for the appeal:

1 & 2. Section 14 of the Bill of Rights, which provides for the right to marry, firstly claiming it presents a “clear intention” to ban same-sex marriage and secondly that it precludes the location of the right to access the state institution of marriage within other rights.

3 &4. Chief justice gave insufficient weight to the constitutional negotiations, and gave undue weight to judicial decisions from other jurisdictions.

5. Chief Justice erred in concluding that the Marriage Law was based on religious grounds

6. The Chief Justice did not acknowledge that the European Court of Human Rights only requires civil unions, not necessarily marriage.

7. The Chief Justice had exceeded the scope of his powers of modification. It was a matter of social policy and a question only for the government to decide “if and when same-sex marriage should be introduced” to the Cayman Islands.

The Attorney, David McGrath, acting for the same-sex couple at the centre of the controversy, said argument #7 was “wholly without merit”.

However, the one argument that won the day for government was the point raised by Reshma Sharma that it risked creating a legal anomaly if same-sex couples were allowed to marry and the Chief Justice’s decision was later overturned on appeal.

President of the Court of Appeal, Sir John Goldring, agreed with her. So the stay was granted and the justices concurred the government’s case had merit.

The news was greeted by a mixture of yells:


“Praise the lord, thank you, Jesus.”

Religious songs were sung outside the Court.

However, the case is far from over.It is only a stay.

We will have to wait until August at the next Appeals sitting for the final decision.

Government had better put up a much stronger list of arguments, then, if they want to win.

Same arguments will, in my humble opinion, not stop marriages of the same-sex here.

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