On 14 March 2022 the Privy Council handed down its decision in Day and others v The Governor of the Cayman Islands and another [2022] UKPC 6 dismissing the Appellants’ appeal for recognition of same sex marriage in the Cayman Islands.
In brief, the background to the decision is as follows: in early April 2018 Ms Day and Ms Bush, a same sex couple, applied for a marriage licence to recognise their marriage in the Cayman Islands. This application was refused by the Cayman Islands Deputy Registrar on the basis that the Marriage Act (2010 Revision) only recognises marriage as a union between a man and woman. Ms Day and Ms Bush issued a claim in the Grand Court for a determination that the Marriage Act ought to be read in conjunction with the Bill of Rights, Freedoms and Responsibilities (the “Bill of Rights”) which constitutes Part 1 of the Constitution of the Cayman Islands and accordingly there should be a constitutional recognition of same sex marriage.
At first instance the Chief Justice found for the Appellants and decided that section 14(1) of the Bill of Rights did not preclude the right for same sex couples to marry and that the refusal to grant the Appellants a marriage licence constituted unjustified discriminatory treatment under section 16 of the Bill of Rights. The Chief Justice found that the Marriage Act would have to be amended to reflect his determination. The Governor appealed the decision to the Cayman Islands Court of Appeal which latterly dismissed the decision at first instance and held that the Bill of Rights does not confer a right for same sex couples to have their marriage recognised in Law.
The Appellants appealed the Court of Appeal decision on the basis that the Marriage Act is an infringement of their constitutional rights under sections 9,10,14 and 16 of the Bill of Rights. Namely,
- Section 9 (1) “Government shall respect every person’s private and family life, his or her home and his or her correspondence.”
- Section 10 (1) “No person shall be hindered by government in the enjoyment of his or her freedom of conscience.”
- section 14 (1) “the 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.”
- section 16(1) “Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner in respect of the rights under this Part of the Constitution.”
The Appellants invited the Board of the Privy Council to determine that the interpretation of the Bill of Rights ought to be “generous” and is capable of changing in line with developing social standards. In response, counsel for the Governor invited the Board to uphold the Court of Appeal’s finding that section 14 (1) of the Bill of Rights is a lexi specialis which has the effect of preventing same sex marriage from being inferred into any other part or provision of the Bill, specifically the Bill of Rights must be interpreted as a coherent whole and in this case section 14 (1) of the Bill addresses the right to marry, and this provision does not cover same sex couples.
Lord Sales delivered the presiding judgment on behalf of the Board. The Board accepted the Chief Justice’s approach to the interpretation of the Constitution in Hewitt v Rivers [2013] (2) CILR 262, para 7, namely that:
“I consider that my approach to the interpretation of the Constitutional provisions at issue on this petition must seek to give effect to the real meaning of the provisions and, where that meaning is not plain, to apply a purposive interpretation. In that sense, the context will be most important as it also reflects the aspirations of the Caymanian society which the Constitution embodies”.
The Board further confirmed that the Constitution must be read as a coherent whole and that Courts/the Board is “only capable of extending meaning in line with changing practices and understandings so far as the language used in the relevant constitutional provisions can reasonably be said to bear a particular meaning”.
In this case Section 14(1) of the Bill of Rights specifically used language to ensure that it could not be read as capable of covering same sex marriage. The Board further confirmed that it could not interpret the Bill of Rights as the Appellants invited it to do so as this would render section 14(1) of the Bill redundant, which was not the intention of those who drafted the Bill of Rights or the vote of the public which approved it in a referendum. Accordingly, the Board confirmed that the Court of Appeal had correctly determined that section 14(1) of the Bill of Rights did not include the possibility of same sex marriages in sections 9,10 and 16 of the Bill.
The Board concluded by reiterating the Court of Appeal’s comment that there was nothing within the Bill of Rights which prevents the Legislative Assembly from passing legislation to create a right for same sex marriage, however that is a choice of the Legislative Assembly rather than an obligation in Law.
