Image description: People at a pride parade. There is a joyous expression on their faces as they walk under a big rainbow flag.
In March 2022, the Judicial Committee of the Privy Council (JCPC) ruled in an appeal from the Cayman Islands that there is no constitutional right to legal recognition of same-sex marriage under the Bill of Rights of the Cayman Islands Constitution. The effect of this interpretation is that the issue of legal recognition of same-sex marriage is a matter of choice for the Legislative Assembly, and not a right laid down in the Constitution.
The case was brought by two women desirous of entering into a same-sex marriage in the Cayman Islands. They were denied a license to marry under the Marriage Law, which defines marriage as ‘the union between a man and a woman as husband and wife’. They brought a challenge before the Grand Court in the Cayman Islands, invoking the right to marry (section 14), private and family life (section 9), freedom of conscience and religion (section 10) and right against discrimination (section 16) under the Bill of Rights of the Cayman Islands Constitution.
The Grand Court, whose decision was discussed in the JCPC decision, held in their favour. It held that the fact that section 14 of the Bill of Rights enshrines a right to marry for opposite sex couples does not preclude recognition of a right to marry for same-sex couples. It held that same-sex couples have a right to marry under section 9 of the Bill of Rights as an aspect of the right to family and private life, and under section 10 as an aspect of the right to freedom of conscience and freedom to manifest their belief in marriage by being allowed to enter into that institution. Further, the refusal to license the marriage of the appellants constituted unjustified discriminatory treatment contrary to their rights under section 16.
This decision was appealed by the state before the Court of Appeal, which overturned the decision of the Grand Court. The Court of Appeal held that section 14 of the Bill of Rights is the provision which governs the right to marriage as a lex specialis, and it does not cover same-sex marriage. The general rights in sections 9, 10 and 16 could not be interpreted to include a right for people of the same sex to marry, as this was not provided in the lex specialis section 14. It held, however, that a failure to provide for a regime of civil partnerships for same-sex partners with functional equivalence to marriage was in breach of their rights under section 9 of the Bill of Rights (family and private life). Responding to this decision, the Civil Partnership Law 2020 was passed, which allows both opposite-sex and same-sex couples to enter into a civil partnership that has equivalent effect to marriage.
The same-sex couple filed an appeal before the JCPC against the decision of the Court of Appeal. The JCPC, in turn, held that there is no constitutional right to same-sex marriage under the Bill of Rights, based on similar reasons as the Court of Appeal.
It should be noted that another interpretation was possible, one which acknowledged the oppression of queer people in a hetero-patriarchal and homophobic world, and recognised that the denied of access to marriage on equal terms as opposite sex couples furthers such oppression. The Grand Court indicated the possibility of such a purposive interpretation, and it was open to the JCPC to take the same rights-affirming approach.
Those at Oxford should pay particular attention to this case, given that the Cayman Islands was represented by the President of Magdalen College. Her decision to represent the Cayman Islands has previously been debated on this blog here, here and here. It is worrying that arguments on behalf of the Government of Cayman Islands prevailed, denying a constitutional right to same-sex marriage