—Derek O’Brien, Senior Lecturer, Truman Bodden Law School, and Rhian Minty, Assistant Director, Truman Bodden Law School
In its recent judgment in Day and Bush v The Governor of the Cayman Islands (Day and Bush), the Grand Court of the Cayman Islands has declared that the Marriage (Amendment) Law 2008 (Marriage Law), which defines marriage as a union between a man and a woman, violates multiple provisions of the Bill of Rights Chapter of the Cayman Islands Constitution by denying same sex couples the right to marry.
The judgment in Day and Bush follows hard on the heels of the judgment of the Court of Appeal of Bermuda in Ferguson v AG Bermuda. The Bermudian court had been ruled that a provision of the Domestic Partnership Act (s53)–which held that a marriage is void unless the parties are male and female–was unconstitutional on the grounds that it had been enacted for a religious purpose and that it violated the right to freedom of conscience of same sex couples, in particular their belief in same sex marriage, pursuant to s8 of the Bermudian Constitution.
It is hoped by supporters of LGBT+ rights that the combined effect of these judgments will force the UK’s other Caribbean Overseas Territories (COTs)–Anguilla, British Virgin Islands, Montserrat and Turks and Caicos–to amend their Marriage Laws to provide for same sex marriage, and thus bring these delinquent COTs in line with the remainder of the UK’s Overseas Territories, all of which permit same sex marriage.
Though the judgment in Day and Bush marks a significant milestone for LGBT+ rights in the Caribbean, we wish to focus in this post not on the issue of same sex marriage itself, but rather on the constitutional arguments that persuaded the Grand Court to declare that Cayman’s Marriage Law was incompatible with the Constitution.
On behalf of the Petitioners, it was argued that the failure of the Government to provide them with access to an institution (for example, a civil union) that recognises their relationship and provides them with the bundle of rights and obligations available to same sex couples violated both their right to a private and family life pursuant to s9 of the Bill of Rights, as well as their right to found a family. It was further argued that the denial of their right as a same sex couple to marry violated their right to a private and family life pursuant to s9, as well as their right to freedom of conscience pursuant to s10 of the Bill of Rights by denying them the right to manifest their belief in the institution of marriage by marrying each other. Finally, it was argued that the denial of their right to marriage breached the non-discrimination provisions contained in s16 of the Bill of Rights when taken in conjunction with a bundle of other rights guaranteed by the Constitution.
In support of their arguments, the Petitioners relied heavily on comparative case law from other jurisdictions on the issue of same sex marriage; in particular, Obergefell (US), Minister of Home Affairs v Fourie and Bonthys (South Africa), Godwin and De Roche and Ferguson v AG (both from Bermuda). They also referred to decisions of international human rights bodies, such as the Inter American Court of Human Rights (Advisory Opinion C) and the European Court of Human Rights (Oliari).
Under Cayman’s Bill of Rights, which was clearly influenced by the UK’s Human Rights Act 1998, there are two possible options where the Court is faced with legislation which violates one or more of the provisions of the Bill of Rights. The first is to issue a declaration of incompatibility (pursuant to s23). The second arises where the compatibility of legislation with the Bill of Rights is ‘unclear or ambiguous’. In such cases the Court must read and give effect to the legislation, so far as it is possible to do so, to render it compatible with the rights guaranteed by the Constitution (pursuant to s25). The Petitioners, however, argued that these remedies only apply to post-Constitution legislation. Pre-Constitution laws, such as the Marriage Law, were instead subject to the modifications clause contained in s5 of the Constitution Order 2009, which gave effect to the Constitution. Section 5 empowers the Court to read and construe existing laws with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Constitution. In the Petitioners’ submission, this required the Court to declare that the Marriage Law should be modified to read ‘the union of two people’ or words to that effect. From the Petitioners’ perspective, s5 was much a more powerful weapon since, unlike a declaration of incompatibility, it authorises the Court directly to modify legislation to bring it into line with the Constitution, rather than wait for the legislature to act which would be the position following a declaration of incompatibility pursuant to s23.
The central plank of the Respondents’ argument was that the right to marry was already included in the Constitution by s14(1) of the Bill of Rights, which provides for 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.’ As Counsel for the Respondents pointed out, s14 had been fully considered and debated during the round of constitutional negotiations that took place between 2007-2009 and the Constitution itself had received the resounding endorsement of the citizens of the Cayman Islands in the referendum which preceded its introduction under the 2009 Constitution Order. The Respondents also relied heavily on the jurisprudence of the ECtHR, which has consistently held that the Convention is to be read as a whole and that its Articles should construed in harmony with each other. This means that Articles such as Article 8 (the right to a private life) whether alone or read in conjunction with Article 14 (non-discrimination) cannot be read so to give effect to a right to same sex marriage (Oliari v Italy, Schalk & Kopf v Austria). While the Respondents acknowledged the volume of comparative case law from other jurisdictions, such as the US, South Africa and Bermuda, which was supportive of a constitutional right to same sex marriage, they argued that the Constitutions of these countries were not comparable because they do not include an express right for couples of the opposite sex to marry. For this reason the Respondents argued that the jurisprudence of the ECtHR, which is directly applicable to the Cayman Islands (since citizens of the Cayman islands have the right to petition the ECtHR), was to be preferred.
With regard to the remedies available in the event that there had been a violation of the Bill of Rights, the Respondents argued that the deployment of the modifications clause in the manner proposed by the Petitioners was objectionable on two grounds. The first was that so far as the Bill of Rights was concerned, there was no distinction between pre and post-Constitutional legislation s5: expressly provides that existing laws ‘shall have effect on and after the appointed day as if they had been made in pursuance of the Constitution.’ The second concerned the extent of the Court’s power of modification. In the Respondents’ submission, this did not extend to reversing the expressed and direct intention of the legislature. To modify the Marriage Law in the manner proposed by the Petitioners would be ‘no mere modification, or the introduction of some exception, but a total destruction…of the precise intention of the … Legislative Assembly in defining marriage to mean opposite-sex marriage.’
In finding for the Petitioners, the Grand Court refused to accept the Respondents’ contention that the right to marry could only be found in Article 14. The Court also accepted that there had been a direct violation of the Petitioners’ rights to a private life and freedom of conscience. The Court further found that there had been a violation of the non-discrimination provisions contained in s16 when viewed in conjunction with multiple rights under the Constitution, including: freedom of expression, freedom of movement, the right to found a family, peaceful enjoyment of property and protection of the child’s right to family and parental care.
Having found that the Marriage Law, which was an existing law, violated multiple, overlapping rights under the Constitution, the Court adjudged that it was bound by s5 of the 2009 Constitution Order (the modifications clause) to provide a remedy for these violations by rewriting the Marriage Law, which would henceforth read: “marriage” means the union between two people as one another’s spouses.
The Grand Court’s judgment is remarkable on at least four levels.
The first is the Court’s willingness when interpreting the Constitution to disregard the expressed intentions of the framers as well as the views of those who voted in the referendum and who gave their support to the Constitution on the basis that by defining marriage as a union between couples of the opposite sex it impliedly excluded the right to same sex marriage.
The second is the Court’s determination to go beyond the judgment of the ECtHR in Oliari. Consistent with the judgment in Oliari, the Court could simply have declared the marriage law to be incompatible with the right to a private life, guaranteed by s9 of the Constitution, leaving it to the Caymanian Government, or in the last rest the UK Government, to decide how and when to introduce legislation providing for civil unions.
The third is the Court’s adoption of a twin track approach to the issue of determining compatibility with the Constitution by categorising laws as pre- and post-Constitution: the former being susceptible to modification, while the latter may be declared incompatible or construed so as to bring them into conformity with the Bill of Rights, but only if their compatibility with the Bill of Rights is unclear or ambiguous. Such a twin track approach is novel and support for this approach, such as it is, lies buried very deep in the text of the Constitution.
The fourth is the Court’s deployment of the modifications clause in a manner that is, arguably, more radical than it has ever previously been deployed by the Judicial Committee of the Privy Council (JCPC) to rewrite the Marriage Law to include same sex couples.
Unsurprisingly, the judgment has been welcomed by the LGBT+ community in the Cayman Islands and will, doubtless, be prayed in aid by LGBT+ groups in the other COTs calling for the introduction of same sex marriage. The judgment will also come as a mighty relief to the UK Government, which has expressed its unequivocal support for the introduction of same sex marriage in its COTs but has consistently refused to intervene on the issue in either the Cayman Islands or Bermuda.
In the case of Bermuda, for example, under the terms of its Constitution the Secretary of State for the Commonwealth and UN could have instructed the Governor to refuse to his assent to the Domestic Partnership Act, which replaced same sex marriage with civil unions.
In the case of the Cayman Islands, if the Cayman Islands Government’s refused to do so, it was always open to the UK Government to issue an Order-in-Council implementing same sex marriage, just as it had previously done in the cases of the death penalty and the decriminalisation of homosexuality.
The refusal of the UK Government to intervene in both Bermuda and the Cayman Islands has meant that the introduction of same sex marriage still feels somewhat contingent: the decision of the Court of Appeal of Bermuda is already the subject of an appeal to the JCPC and the Premier of the Cayman Islands announced, within 5 days of judgment being handed down in Day and Bush that he had instructed the Attorney General to file an appeal with the local Court of Appeal. This now sets the Government of the Cayman Islands on a collision course with the Governor who has warmly endorsed the Grand Court’s decision.
Suggested Citation: Derek O’Brien & Rhian Minty, Same Sex Marriage in the Cayman Islands, Int’l J. Const. L. Blog, Apr. 11, 2019, at: