The Cayman Islands and same-sex marriage: Day & Anor

In a guest post earlier in the week, Elijah Z Granet analysed the Judicial Committee of the Privy Council’s judgment in Attorney General for Bermuda v Ferguson & Ors [2022] UKPC 5. On the same day, the Judicial Committee handed down judgment in a second case on provision for same-sex marriage: this time, in the Cayman Islands.

Background

In Day & Anor v The Governor of the Cayman Islands & Anor [2022] UKPC 6, Ms Chantelle Day and Ms Vickie Bodden Bush wished to have a same-sex marriage recognised in law but were refused a marriage licence on the grounds that s 2 of the Cayman Islands’ Marriage Law defines marriage as “the union between a man and a woman as husband and wife”. They argued that the Bill of Rights, Freedoms and Responsibilities in Part 1 of the Cayman Islands Constitution, as set out in the Cayman Islands Constitution Order 2009, gave them a constitutional right to legal recognition of same-sex marriage and that the Marriage Law should be read so as to reflect that right. Their claim was successful at first instance but overturned on appeal, and they appealed to the Judicial Committee of the Privy Council [1].

It was common ground in the Court of Appeal and before Judicial Committee that under s 9(1) of the Bill of Rights (right to respect for family and private life) the Legislative Assembly was required to provide them with a legal status functionally equivalent to marriage, such as civil partnership, and that the Government and Legislative Assembly were in breach of that obligation – and the Court of Appeal made a declaration to that effect. The Government did not appeal against that declaration, and the obligation was subsequently complied with by the promulgation of the Civil Partnership Law 2020 [2]. Continue reading