In the recent (and only) judicial review case regarding same-sex marriage, the Honourable Chief Justice made two rulings: one, that the present marriage law of the Cayman Islands is discriminatory against persons of the same sex who wish to marry each other, and two, that the marriage law should be changed to accommodate such wishes. What is most noteworthy here is that in order to redress the assumed discrimination, the C.J. proceeded to redefine marriage in order to eliminate future discrimination. On a matter of principle, however, this approach sets a very dangerous precedent in local jurisprudence. If this ruling is left to stand, it would logically endanger every other law in which the legislature has wisely decided that some level of just and reasonable discrimination needed to be exercised (after all, discrimination is a neutral exercise, not necessarily a negative or malicious one). Laws relating to immigration, voting rights and the holding of public office, as well as participation in commercial enterprises, and others that are designed to protect Caymanians from indiscriminate and unfair actions from foreign persons or enterprises could very well be ruled as discriminatory and then redefined by the courts to remove the purported discrimination.
Courts have neither a duty nor right to redefine categories or domains in order to accommodate petitioners whose requests cannot be met under the prevailing provisions of the laws with respect to those categories. The duty of the courts is to interpret the law as it stands in relation to the existing categories to which the law applies. For example, the courts do not have a duty, nor do they have the right to change the definition of legal residency (or Caymanian Status) in order to provide ‘rights’ for expatriates who wish unrestricted entry and domicile in the Cayman Islands. In the same way, the present definition of marriage excludes certain “rights”—such as the right to multiple spouses, the right to child marriage and the right to marry someone of the same sex.
Furthermore, marriage as it has been commonly ( and universally) understood was not based on some arbitrary definition by a legislature or court, but was based on the natural understanding of marriage as a legally protected social entity for the promulgation of the human family, which is the basic and foundational unit of society. It is not tradition that has given us marriage as we have known it for centuries, but common sense aligned with nature. The arbitrary redefinition of marriage by the courts is therefore an unhealthy act of social engineering by a public body that has neither the duty nor right to exercise such power.
Pastor M. Alson Ebanks