The Cayman Islands is an autonomous British Overseas Territory in the western Caribbean. It is governed under the Cayman Islands Constitution Order 2009, Schedule 2 to which sets out the territory’s Constitution in detail.
In Deputy Registrar of the Cayman Islands & Anor v Day & Anor  CICA No 9 of 2019, Ms Chantelle Day and Ms Vickie Bodden Bush had applied in April 2018 for a marriage licence but the Deputy Registrar had refused to grant it, relying on s.2 of the Cayman Islands Marriage Law (2010 Revision), which defines marriage as “the union between a man and a woman as husband and wife.” Ms Day and Ms Bush applied to the Grand Court for orders to enable them to marry and were successful.
On appeal, that decision was overturned: the Appellants accepted, however, that under the terms of s.9(1) of the Bill of Rights, Freedoms and Responsibilities (which forms Part 1 of the Constitution Order, and which declares that “Government shall respect every person’s private and family life, his or her home and his or her correspondence”), the Legislative Assembly of the Cayman Islands was required to provide the Respondents with a legal status functionally equivalent to marriage, such as civil partnership.
The Court pointed out that the Cayman Islands were part of the UK for the purposes of international law and that the ECHR had been extended to them. The Bill of Rights, Freedoms and Responsibilities was plainly based on the ECHR . Therefore, not only did the inaction of the Legislative Assembly on the matter place it in breach of the law,
“it also means the Government of the United Kingdom is in violation of Article 8 of the European Convention of Human Rights” .
Nevertheless, the Court of Appeal felt itself bound to find for the Appellants and it overturned the ruling of the Grand Court. It did so primarily on the grounds of a plain reading of s.14(1) of the Constitution, which reads “Government shall respect the right of every unmarried man and woman of marriageable age (as determined by law) freely to marry a person of the opposite sex and found a family”. In the opinion of the Court:
“The wording of section 14(1), on its face, defines marriage in terms of marriage between a man and a woman. The wording, in our judgment, precludes same-sex marriage. It seems to us … that as a matter of syntax and logic, the words, ‘the right of every unmarried man and woman of marriageable age .. freely to marry a person of the opposite sex’ make up a single, composite expression. Meaning and effect have to be given to the words, ‘a person of the opposite sex’. If … the framers of the Constitution had intended that same-sex couples should enjoy a constitutional right to marry, the words ‘of the opposite sex’ would have been otiose and misleading…” .
In doing so, however, the Court was scathing about the failure of the Legislature to provide any legal form of recognition of same sex relationships, and made the following order:
“In recognition of the 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 and in recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights, IT IS DECLARED THAT Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands which is functionally equivalent to marriage. ”
“This court is an arm of government. Any constitutional settlement requires the executive and the legislature to obey the law and to respect decisions of the court. It would be wholly unacceptable for this declaration to be ignored. Whether or not there is an appeal to the Privy Council in respect of same-sex marriage, there can be no justification for further delay or prevarication . Moreover, in the absence of expeditious action by the Legislative Assembly, we would expect the United Kingdom Government to recognise its legal responsibility and take action to bring this unsatisfactory state of affairs to an end [121: emphasis added].”
[With thanks to Elijah Z Granet]