The constitutional right to marry: the Cayman Islands
LGBTI Law Committee Board
On 7 November 2019, the Court of Appeal of the Cayman Islands delivered its judgment on appeal from a decision of the Chief Justice of the Cayman Islands overturning the Court below. The Court of Appeal held that the Constitution of the Cayman Islands through its right to family/privacy did not preserve the right of same-sex couples to marry but did require in accordance with EU case law the right to a civil union alternative, the Cayman Island Constitution being similar to the European Convention on Human Rights (ECHR). The case is Deputy Registrar of the Cayman Islands and A-G of the Cayman Islands v Day and Bush.
The Bench included Sir John Goldring, a distinguished jurist who formerly sat on the Court of Appeal of England and Wales, Sir Richard Field, a judge of The High Court of England and Wales and the Honourable Denis Morrison, president of the Caribbean Court of Justice, Court of Appeal.
The Court divided the marriage equality jurisprudence based on Commonwealth constitutions into two camps, depending largely on the wording of each constitution. The first group of constitutions provides for an express, non-restrictive right to marry, but with a free-standing non-discrimination clause. The Constitutions of Canada and South Africa are examples. For the Caribbean, see the discussion below concerning Bermuda. The end result is that same-sex marriage is a constitutional right. The Supreme Court of the United States found that the right to equality and due process achieved the same end-result in Obergefell in 2015. However, the second group of constitutions (as is the case in the Cayman Islands) fall into the same camp as is provided in the European Convention on Human Rights. Typically, these conventions/constitutions have an express provision defining and preserving marriage as between members of the opposite sex (or similar).
The European Court of Human Rights (ECtHR) found that because Article 12 of the ECHR defined marriage as between a man and a woman only (the lex specialis as far as marriage is concerned), the right to family life and privacy in Article 8 together with Article 14 (protection from discrimination) that these on their own and in the face of Article 12, did not create a right to same-sex marriage (which would require the wording in the lex specialis provision in Article 12 to be effectively amended or to be read down). See Schalk v Kopf (discussed below). In parallel to the ECHR, the Cayman Islands Constitution, it was held, contained a lex specialis provision similar to that found in Article 14 ECHR defining marriage as between a man and a woman, only (see below).
The Court of Appeal of the Cayman Islands then went on to reach the same conclusion that the ECtHR reached in its later jurisprudence providing that the Government of the Cayman Islands must nevertheless similarly provide for a civil union (or similar) alternative.
The Cayman Islands Constitution came into effect on 8 November 2009 with the Bill of Rights (BOR) coming into force three years later on 6 November 2012. As stated above, the BOR substantially mirrors the ECHR. The grounding of the BOR on the ECHR meant that the UK Parliament was taken to have intended that the ECtHR case law would therefore apply. R & F v UK, a leading case at the ECtHR was decided in 2006, prior to the settling of the Cayman Islands Constitution. Schalk and Kopf v Austria was decided later in 2010, following R &F v UK, but the complaint as to a lack of an alternative legal recognition of a same-sex relationship, was upheld. The most recent case issued in December 2017 is Orlandi and others v Italy, following the same reasoning. However, none of the cases heard on the issue in Strasbourg that were referred to by the Court of Appeal, have come before the Grand Chamber.
Marriage for same-sex couples has also been argued, in a parallel context, under the International Covenant on Civil and Political Rights, for example in Joslin et al v New Zealand, a case decided in 2002, by the UNHRC sitting in its judicial capacity, with a similar outcome. Joslin was only overridden in New Zealand through legislative change.
Turning then to other constitutions in the Caribbean, the Court divided those countries that mirror the ECHR configuration and those that do not. The Constitution of Bermuda for example had not incorporated the provisions of the ECHR in the same way as the Cayman Islands Constitution. There is a non-discrimination provision that stood on its own without any ‘marriage is for men and women only’ reiteration. The Court of Appeal of Bermuda in Ferguson v AG (currently on appeal to the Privy Council) in 2018 found that the prohibition of same-sex marriage in Bermudan legislation contravened the applicants’ rights protected in the Constitution.
The Court of Appeal of the Cayman Islands followed the quite well-developed UK and Commonwealth convention and constitutional case law that although an equivalent form of legal partnership is required, this cannot abrogate an express ‘marriage only for men and women’ provision. The wording of section 14(1) of the Cayman Islands Bill of Rights it was found, could not be overridden contextually: ‘The right of every unmarried man and woman of marriageable age… freely to marry a person of the opposite sex’.
Meaning and effect had to be given to the words ‘a person of the opposite sex’. Having followed the ECHR model and not that of Canada or South Africa or Bermuda in drafting its Constitution, the Cayman Islands is left with the ECtHR case law on the similar configuration, ie, the ECHR falls short of a right to same-sex marriage, but requires an alternative, where there is an express right to marriage for opposite sex persons.
At the time of writing this case-note, it is not known whether an appeal to the Privy Council has been lodged. The writer’s view is that the decision is consistent with Commonwealth and European case law, however following Brexit it will be interesting to see whether the Privy Council will depart from the ECtHR rulings. Of course, in spite of Brexit, the UK will remain a member of the ECHR and accordingly the rulings of the ECtHR would continue to apply. However, the writer’s view is that even with Ghaidan v Godin-Mendoza  2 AC 557 (HL), the express words cited above, ‘freely to marry a person of the opposite sex’, present a significant interpretive hurdle, even if it is considered that a different approach to interpretation applies to constitutional and convention provisions (as was argued). There is, however, as was ably argued before the Cayman Islands Court of Appeal, an alternative route.
There is a significant question as to whether the express provision preserving heterosexual marriage prohibits (by its existence) the recognition of an equal and parallel right for same-sex marriage in recognition of the rights of family, privacy and non-discrimination (and equality). The words ‘freely to marry a person of the opposite sex’ would not be otiose if the provision is understood (as was argued) so as to protect the institution of (heterosexual) marriage rather than as a phrase defining marriage and thus excluding the existence of ‘same-sex marriage’.
Clearly there remains room for debate in the appellate courts and there may be hope for a different approach at the ECtHR, but that will require an approach to interpretation that recognises the human rights to marriage as equally valid to all, and an approach that requires a separate reading of the privacy/family and non-discrimination rights from the right that preserves or defines marriage as a heterosexual institution. Perhaps this needs to come before the Grand Chamber.
There is no reason why two ‘separate’ sets of ‘right to marriage’ cannot co-exist, in any jurisdiction, and in recognition of the fact that, without marriage, so much is lost. In this case the Court of Appeal chose to ‘read’ the three articles together following the lead on this by the ECtHR. As the existence or preservation of heterosexual marriage is not affected by the existence of same-sex marriage as has by now been well established in so many countries, a different approach is nevertheless available.