The UK Privy Council has ruled that the Cayman Islands Constitution does not provide a right for same-sex marriage and ruled in favour of the Cayman Islands government by dismissing the case of same-sex couple Chantelle Day and Vickie Bodden Bush.
In a judgment handed down earlier today, 14 March, the panel of five judges dismissed the couple’s appeal, which comes more than one year after the case was heard.
In the ruling, the Privy Council said that, in the context of Cayman’s Bill of Rights, the right to marriage is confined to opposite-sex couples.
As a result, the other sections of the Bill of Rights must be interpreted in light of this, “meaning that none of them can be construed as including a right for a same-sex couple to marry,” according to a press summary on the judgment.
“Chantelle and Vickie are extremely disappointed with the Privy Council’s judgment issued earlier today,” according to a statement issued by the couple’s attorney, Ben Tonner, QC.
Day and Bodden Bush initially contested the Cayman Islands Marriage Law in 2018, on the grounds that it was discriminatory and infringed on multiple human rights, such as the right to private and family life, the right to freedom of conscience and the right to non-discrimination.
The case first appeared before Chief Justice Anthony Smellie, who ruled in favour of the couple. He said preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman’s Constitution, including the right to a private and family life.
This ruling was eventually set aside by the Court of Appeal, in favour of the Cayman Islands government, leaving Day and Bodden Bush to appeal to the Privy Council.
Reason for the decision
When returning their decision, the Privy Council stated that section 14 (1) of Cayman’s Bill of Rights defines who has a constitutional right to marriage.
“[T]he interpretation of the other general provisions… which do not stipulate for a right to marry, must take account of this and cannot be developed to circumvent the express limits on the right to marry in section 14(1),” the ruling states.
The judgment maintains that, to do so, would undermine the coherence of the Bill of Rights.
The Privy Council said it was guided by the European Convention on Human Rights when coming to its decision, finding that the equivalent article limits the scope of the right to marry to being between a man and a woman.
However, the judgment also states that this interpretation of the Bill of Rights does not prevent Cayman’s Parliament from introducing legislation which recognises same-sex marriage.
“[T]his is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution,” the final paragraph of the judgment states.
What next for Day and Bodden Bush?
Day and Bodden Bush say they are “extremely disappointed” with the judgment, which means “same sex couples in the Cayman Islands have no right to access the institution of marriage,” according to the statement issued by the couple’s lawyer.
It adds that the couple and their legal team are now considering their next steps, including whether they should appeal to the European Court of Human Rights in Strasbourg, France.
“Were it not for their courage in standing up for their rights, and the rights of many others, there would still be no legal framework for the recognition of same-sex couples in the Cayman Islands [allowed under the Civil Partnership Act],” the statement adds.
“Their strength and bravery throughout these proceedings has been truly inspirational.”
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This is a sad day for Cayman. The bigots have won, for now. Don’t go telling me they’re “just doing God’s work”. They’re not. God isn’t a bigot. Everyone should be with (and marry if desired) the partner of their choice. Would the bigots prefer that a gay man marry a straight woman, thereby living a lie? It does no good to dutifully go to church every Sunday, then spend the rest of the week engaging in action to prevent people from finding happiness — happiness that takes nothing away from you. Note to bigots: No one owns the word “marriage”. Certainly not you. If marriage is a religious thing — which is essentially the argument of the bigots that “justifies” all the bigotry — then government needs to get out of the marriage business and offer ONLY civil unions — to ALL. Then churches can marry (or not) couples who come to them. Thanks to the civil union law, at least the latter right remains. But it’s not equality, and everyone knows it. It’s just a way to make perfectly clear who’s a first-class citizen and who isn’t. Shame on you, Cayman. You can do so much better than this. To the governor and the UK: Please, please, please immediately issue an Order in Council and put an end to the continued gay-bashing, which is exactly what this unfair situation amounts to.