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].

The Cayman Island Bill of Rights

S 14 of the Bill of Rights, headed “Marriage”, is its only provision that refers specifically to marriage. Under it:

“(1) 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.

(2) No person shall be compelled to marry without his or her free and full consent.

(3) Nothing in any law or done under its authority shall be held to contravene subsection (1) to the extent that the law makes provision that is reasonably justifiable in a democratic society – (a) in the interests of public order, public morality or public health; (b) for regulating, in the public interest, the procedures and modalities of marriage; or (c) for protecting the rights and freedoms of others” [12].

S 9 of the Bill of Rights provides that:

“(1) Government shall respect every person’s private and family life, his or her home and his or her correspondence.

…

(3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society [for various defined purposes]” [14].

The drafting of s 14 is more specific than the wording of Article 12 ECHR, which provides that “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right” [13].

The arguments

For the appellants, it was argued that though s 14(1) of the Bill of Rights could not be read to include a right to marry for same-sex couples, it did not prevent such a right from arising under other provisions of the Bill of Rights, namely sections 9, 10 and 16. As in Canada, the Constitution was a “living tree capable of growth and expansion within its natural limits” and “subject to development through usage and convention”: Edwards v Attorney General for Canada [1930] AC 124, 136. Accordingly, the interpretation of the rights it sets out could change in line with developing social standards [29].

For the Cayman Islands Government, it was argued that, in providing for a specific right to marry under certain conditions, s 14(1) was a lex specialis which had the effect that no right to enter into a same-sex marriage could be found to exist in any of the other provisions of the Bill of Rights. The other provisions were in general terms and could not be taken to displace or circumvent the way in which the drafters of the Constitution had specified the express right to marry as incorporated in the Bill of Rights – which had to be interpreted as a coherent whole [30].

The judgment

S 14 of the Bill of Rights was the lex specialis that govern marriage, and that right was confined to opposite-sex couples. The other sections of the Bill of Rights had to be interpreted in light of s 14(1), which meant that none of them could be construed as including a right for a same-sex couple to marry [32]. The Bill of Rights had to be interpreted in its particular context and as a coherent, internally consistent whole [33 & 38]. The right to marry in section 14(1) had been drafted specifically to make it clear that it applied only to opposite-sex marriage [39]. Because it was the lex specialis governing marriage, it defined who had a constitutional right to marriage, and the general provisions in ss 9, 10 and 16 could not, therefore, be interpreted to circumvent the express limits on the right to marry in s 14(1) [40]. To do so “would have the effect of making the right in section 14(1) redundant, which would clearly be contrary to the intention of the drafters of the Bill of Rights” [41].

That interpretation was supported by the jurisprudence of the ECtHR, as demonstrated in Schalk and Kopf v Austria (2011) 53 EHRR 20, Hämäläinen v Finland (2014) 37 BHRC 55, Oliari v Italy (2017) 65 EHRR 26 and Orlandi v Italy [2017] ECHR 1153 [45-50].

In view of the clarity and precision of the drafting of s 14(1), it was not necessary to refer to the travaux préparatoires leading to the adoption of the Constitution [56]. Furthermore, the Constitution had been adopted after a vote by the public to approve it in a referendum, and the public were entitled to understand that they were voting to approve the Constitution in the form in which it was presented to them, interpreted in the light of the context and circumstances in the public domain at that time:

“It might not be putting it too strongly to say that it would be ‘a confidence trick … and destructive of all legal certainty’, to use the language of Lord Diplock … if, having invited approval of the Constitution by the public on one basis, the Government were able to refer to private materials which were not publicly available at that time and say that its interpretation is to be taken to be affected by them” [57].

The Judicial Committee emphasised that the interpretation to be given to the Bill of Rights as explained in its judgment did not prevent the Legislative Assembly from introducing legislation to recognise same-sex marriage. The effect of its interpretation was that it was a matter for decision by the Legislative Assembly rather than a right laid down in the Constitution [59]. Appeal dismissed [60].

Comment

The unanimous judgment of the Judicial Committee was delivered by Lord Sales – who had been the sole dissentient in AG for Bermuda v Ferguson & Ors.