Privy Council rules on same-sex marriage in the Cayman Islands
In Day & Anor v The Governor of the Cayman Islands and Anor [2022] UKPC 6, the Judicial Committee of the Privy Council has held the Cayman Islands Constitution does not guarantee same sex couples the right to marry. Whether or not to introduce same-sex marriage is a political question for the Cayman Islands Parliament.
Background
The claimants are a lesbian couple who wished to enter into a same-sex marriage recognised in law in the Cayman Islands. The Cayman Islands General Registry refused their application for a special licence to marry, citing section 2 of the Marriage Law (2009 Revision), which defines marriage as a “union between a man and a woman as husband and wife”.
The claimants commenced judicial review proceedings, arguing that the refusal of permission for them to marry contravened their rights under the Bill of Rights, set out in Part I of the Constitution of the Cayman Islands. Alternatively, they contended, the Government was required to provide them with an alternative legal framework equivalent to marriage. Relevantly, section 14(1) of the Bill of Rights provides:
“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.”
Grand Court Decision
The Grand Court of Cayman Islands ruled in favour of the claimants on the marriage issue. The Chief Justice held that: (1) the right to marry a person of the opposite sex under section 14(1) of the Bill of Rights did not exclude the possibility of a right to enter into same-sex marriage arising under other provisions of the Bill of Rights – in particular, the right to family and private life under section 9 of the Bill of Rights; (2) the right to freedom of conscience under section 10 of the Bill of Rights conferred on the claimants a right to manifest their belief in marriage by entering into such an institution; and (3) the refusal to license the marriage was unjustified discrimination contrary to section 16 of the Bill of Rights.
Court of Appeal Decision
On appeal, the Court of Appeal of the Cayman Islands reversed the decision of the Grand Court. The Court held that the right to marry under section 14(1) of the Bill of Rights was clearly intended to be limited to opposite-sex couples. That provision was the ‘lex specialis’ on the right to marry, and so other more general rights could not be interpreted to provide what section 14(1) was drafted not to include.
On the question of civil partnerships, the Court of Appeal further held, accepting a concession made by the Government of the Cayman Islands, that the right to respect for family and private life under section 9 of the Bill of Rights required the Government to provide a legal framework for the recognition and protection of same-sex relationships. (This obligation has since been fulfilled by the promulgation of the Civil Partnership Act 2020).
The claimants appealed to the Privy Council on the marriage issue.
Decision of the Privy Council
The Board unanimously dismissed the appeal. Lord Sales, writing the opinion of the Board, held that the issue on appeal is a question of interpretation of the Bill of Rights.
The Board reasoned that the Constitution should be read as a coherent whole. General provisions should not, consistent with the maxim that lex specialis derogat legi generali, be interpreted so as to undermine the intended effect of provisions specifically drafted to deal with a particular situation.
Here, the right to marry under section 14(1) of the Bill of Rights was drafted in highly specific terms. It provides a right to marry “a person of the opposite sex”. The language of the section, the Board found, clearly limits the ambit of the right to marry to a right to enter into an opposite-sex marriage. Since section 14(1) constitutes a lex specialis in relation to the right to marry, the interpretation of other general rights in the Bill of Rights, such as the right to equality, the right to respect for family and private life, and the right to freedom of conscience, cannot be construed to give rise to a right on the part of same-sex couples to marry, which has the effect of circumventing the limitation on the right specified in section 14(1).
The Board found support for its interpretation in the case law of the European Court of Human Rights, in particular Schalk and Kopf v Austria (2011) 53 EHRR 20, and in the United Nations Human Rights Committee’s interpretation of Article 23(2) of the International Covenant on Civil and Political Rights in Joslin v New Zealand, Communication No 902/1999. In light of the clear language of section 14(1), the principle that a constitution is a “living tree” was of no assistance to the claimants.
The Privy Council stressed that their Opinion does not prevent the Cayman Islands Legislative Assembly (since renamed Parliament) from introducing legislation to provide for same-sex marriage. It found only that the Constitution did not require the introduction of such legislation.
The case has been widely reported, including in The Guardian, ABC News, The Telegraph, Cayman Compass, Los Angeles Times, among others.
Representation:
Tim Parker acted for the Attorney General of the Cayman Islands, led by Dinah Rose QC and Sir Jeffrey Jowell QC.
This case summary was drafted with the assistance of Samantha Lau of Denis Chang’s Chambers.
| Tim Parker
“Tim is a star. A measured yet forceful advocate who has a very tactical mind. He easily holds his own with the most senior of judges.” Legal 500 Asia-Pacific 2021 & 2022: Hong Kong Bar — Leading Juniors Tim Parker’s practice spans advocacy and advisory work in public international law, constitutional and administrative law, competition, and civil / commercial matters. He practices both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers. Recently, Tim has been ranked as a leading junior in Chambers and Partners 2022, and in Legal 500 Asia-Pacific 2022 for the areas of Administrative & Public Law, Commercial Disputes, and Competition Law. In the field of discrimination law, Tim’s notable cases include Re The German Swiss International School Association Ltd [2020] HKCFI 1341 (Articles of Association requiring German-speaking directors held to be race discrimination); and QT v Director of Immigration (2018) 21 HKCFAR 324 (exclusion of same-sex couples from Director’s policy of granting dependant visas). Visit Tim’s profile for more details on his experience. |
This article was first published on 18 March 2022.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.