In a landmark ruling that effectively draws a line under the legal debate on same-sex marriage rights in the Cayman Islands, the Privy Council has dismissed a case by Chantelle Day and Vickie Bodden Bush.
In the long-running, high-profile case dating back to 2018, the appellants had challenged a ruling by the Cayman Islands Court of Appeal which had overturned a previous High Court ruling in their favour.
On 29 March 2019, the Chief Justice had handed down a judgment in which he held that the fact that the Bill of Rights enshrines the right to marry for opposite-sex couples does not exclude a similar right existing for same-sex couples.
In that ruling, it was also determined that the refusal to license the marriage of the appellants constituted unjustified discriminatory treatment and violated their rights under the Bill of Rights.
The Chief Justice of the High Court had then ordered that the existing Marriage Law be amended to recognise same-sex marriages and that the appellants were entitled to apply for damages for violation of their constitutional rights.
But the then government challenged that ruling and won, following which Chantelle Day and Vickie Bodden Bush took their cause to the Privy Council.
In the decision on Monday (March 14th), the Privy Council ruled that the Bill of Rights in the Cayman Islands Constitution was drafted in highly specific terms to make it clear that it is a right “freely to marry a person of the opposite sex …”
“The Board considers that the reasons given, focusing on the interpretation of the Constitution and the Bill of Rights as a self-contained legal instrument drafted in terms specifically chosen as appropriate for the Cayman Islands, are sufficient to determine the case in the Government’s favour and to dismiss the appeal," it ruled.
In a significant element of Monday’s judgment, the Privy Council referred to the Cayman Islands Court of Appeal ruling stating that it “takes this opportunity to reiterate the point made by the Court of Appeal, that the interpretation to be given to the Bill of Rights as explained in this judgment does not prevent the Legislative Assembly from introducing legislation to recognise same-sex marriage.”
It said: “The effect of the interpretation endorsed by the Board is that this is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution.”
The Chantelle Day and Vickie Bodden Bush case has highlighted deep differences of opinion in the jurisdiction over the broad issue of same-sex couples.
It has been a topic of intense debate at the community and political level with far-reaching legislative shifts and political upheavals.
It led to changes in the law in 2020 - first with the Domestic Partnership Law and subsequently the current Civil Partnership law= to accommodate same-sex partnerships, although the core Marriage Law remains untouched.
Meanwhile, in a press release issued shortly after Monday's ruling, the LGBTQ rights organisation, Colours Cayman, expressed its disappointment with the outcome of the case.
“The Privy Council has told LGBTQIA+ people that they have no right to be treated equally; that the Constitution permits them to be segregated on the basis of their sexual orientation and that religious views are to be elevated over and above the values of human dignity, equality, mutual respect and social harmony—all matters affirmed in the Constitution’s Preamble, alongside reference to Christian values,” it stated.
Colours Cayman also said, “We are perplexed as to why the Privy Council restricts expansion of rights and favours segregation by fixating itself on the “god-fearing” aspects of the Preamble only. British judges have favoured the views of certain religious folk, who enjoyed the benefit of a seat at the table when the Constitution was being discussed.”
Monday’s Privy Council same-sex ruling was one of two major cases on the same-sex rights issue involving UK Overseas Territories.
In a separate case from Bermuda, the court ruled in favour of the government which had challenged a historic Bermuda Supreme Court ruling allowing same-sex marriage there.
Commenting on that outcome, Colours Caribbean called it a decision that will go down in LGBTQIA+ history.
“It is the first ultimate court of appeal in the American continent in modern times to entrench segregation and in the case of Bermuda, against the unanimous legal view of the judiciary of the jurisdiction,” it said.
"The Privy Council has done nothing more, by its decision, than reassert the oppressive political environment of yesteryear,” Colours Cayman concluded.
The outcome of the Cayman and Bermuda cases has attracted global media attention with reports in several major news outlets.
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