GEORGE TOWN, Cayman Islands (CNS) — Sir Jeffrey Jowell QC, who the Cayman Islands government has instructed to defend a legal case challenging the British territory’s ban on same-sex marriage and the lack of equity for gay couples, told the court on Friday that “rightly or wrongly”, the intention of the constitution is to ensure that marriage remains a union between opposite-sex couples only.
The leading British attorney, who was the government’s adviser on the 2009 constitution during the consultation process and had assisted in its final wording, argued that the courts should not interfere with the deliberate prohibition on gay marriage because the law was not only constitutional but it was what the people of Cayman wanted.
Jowell, who is leading the government’s defence of the case filed by Chantelle Day and Vickie Bodden after they were refused a marriage licence by the General Registry last year, said that the court should respect the language of the constitution and the people’s wishes not to allow same-sex marriage.
His submission followed a day and a half of argument by Edward Fitzgerald QC, who presented the women’s case, concluding that they could be allowed to marry through a simple change to the wording of the Marriage Law, which the court could make through its powers of modification.
Jowell began by presenting the position that the court had no right to insert its moral values into the constitution, which was “grounded in local culture”.
“The constitution embodies the aspirations of the Caymanian people,” Jowell argued, noting that it had been put to a referendum and gained 62 percent support.
During his presentation, Jowell stuck to the simple argument that the words in the Marriage Law and constitution are deliberate and, “like it or not”, the people do not want to allow same-sex marriage, regardless of whether it is right or wrong, and that there is no way to interpret it any other way.
In what the two women have argued is an exceptionally limited and narrow defence by the government against their wish to marry or at least enter into a civil partnership, Jowell stuck to the government line, as he repeatedly argued that because this is what the constitution and the law says, the gay marriage ban is both deliberate and constitutional.
He suggested that while the Cayman Islands Bill of Rights sought to reflect the European Convention on Human Rights, it had diverged from it as a result of long talks and compromise, which was “hotly debated”, to arrive at the very deliberate wording in section 14 to meet the desires in 2009 and the majority view now that marriage is for opposite sex couples only.
He said that “as sad as it may be”, Cayman’s Constitution was one which had been written with the intent of excluding same-sex couples from the institution of marriage and the court should not override the democratically elected legislature to change it.
While he accepted that marriage is evolving, he described the Bill of Rights in Cayman’s Constitution as still relatively young, since it was only implemented at the end of 2012, and said it was not ready for the “radical shift” towards gay marriage.
Asked some pointed questions about his position by Chief Justice Anthony Smellie, including about the right to family life that same-sex couples are denied by not being allowed to marry, Jowell, who appeared at times to struggle with his presentation as the octogenarian’s voice gave out, was unable to directly address that issue. He suggested, however, that single parents are also barred from those rights.
Jowell will continue his arguments on behalf of the government on Monday, when he is expected to address the women’s breach of rights and the government’s position on the lack of any legislation supporting an equivalent institution to marriage, such as civil partnerships.
Republished with permission of Cayman News Service