Chantelleday v The Cayman Islands
| Jurisdiction | Cayman Islands |
| Judge | Anthony Smellie |
| Judgment Date | 29 March 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CIVIL CAUSE NO. 111 OF 2018 |
| Date | 29 March 2019 |
The Honourable Anthony Smellie, Chief Justice
CIVIL CAUSE NO. 111 OF 2018
CIVIL CAUSE NO. 184 OF 2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
The issue of marriage equality — whether same-sex couples have the right to marry and found a family — whether the Marriage Law definition of marriage as “union between a man and a woman as husband and wife” violates rights of same-sex couples to private and family life protected by Constitutional Bill of Rights — whether Marriage Law definition introduced for purpose of preserving a religious concept of marriage to exclusion of other beliefs and in violation of freedom of expression of conscience.
History of marriage in the Cayman Islands — whether a “traditional” form of marriage had emerged to prevent further constitutional development of the concept.
Entitlement of same-sex couples who are in committed stable relationships to be regarded as in analogous position to opposite-sex couples — whether denial of right to marry and found a family is unjustifiable discrimination prohibited by Constitutional Bill of Rights.
“Margin of appreciation” afforded to the State to decide when and how to remedy violation of fundamental rights protected by European Convention on Human Rights — whether margin of appreciation allowed where violation is of rights protected under the Constitutional Bill of Rights. Remedies where violation of rights found by the court — jurisdiction to amend the Marriage Law to bring it into conformity with the Constitution — whether amendment or declaration of violation of rights appropriate remedy.
Mr. Edward Fitzgerald QC, instructed by Mr. Ben Tonner, QC and Mr. Peter Laverack, for the Petitioner/Applicant
Sir Jeffrey Jowell QC instructed by Miss Reshma Sharma and Ms. Celia Middleton of the Attorney General's Chambers for the Respondents
This case raises the sensitive question whether the Applicants/Petitioners (“the Petitioners”) who are both women, have a constitutional right to marry and found a family.
Their case arises against the background of prolonged social and political discourse in this jurisdiction and abroad on the subject of marriage equality, but in the continuing absence here of any affirmative measures put in place to recognize or protect the relationships of same-sex couples.
In light of legislative action taken in 2008 to be examined below, the dispute to be decided is stark and clear. It is tantamount to a dispute over the ownership of the very institution of marriage itself —is it or is it not to be in the Cayman Islands, for all time, the exclusive preserve of the heterosexual?
The institution of marriage has been recognized in the Cayman Islands ever since the mid- 1700s, when the Islands were permanently settled. Governed by the Marriage Law (2010) Revision (“the Law”), it is therefore a secular institution, one which is regulated by the
In the present state of the Law, while opposite-sex couples are recognized by the State as committed couples and allowed to marry and so enjoy a variety of further legal rights and protections from the State 1, same-sex couples are denied access to marriage and so are denied access to those rights and protections.
The Petitioners submit that the present state of the Law violates their Constitutional rights. Specifically, their rights to private and family life, including the right to found a family; to freedom of conscience and perhaps most profoundly, to freedom from unjustifiable discrimination on the grounds of status; namely, their sexual orientation.
The Petitioners submit that they are entitled to a remedy from the Court that affords them equal access to marriage. Alternatively at least, to declaratory orders to the effect that they are entitled to have their relationship otherwise respected by the State, by way of legislation which recognizes and protects their relationship as a civil union. They nonetheless submit, that the right to marry, being the only remedy which the Court can itself provide and which would accord them full equality in the eyes of the law, is therefore the primary and proper remedy to which they are entitled.
Since 2009, the Constitution of the Cayman Islands enshrines a Bill of Rights 2 which contains, among others, fundamentally important provisions which are relied upon by the Petitioners. Primarily, they are those which mandate that: (1) Government shall every person's private and family life, his or her home and his or her correspondence 3; (2) No person shall be hindered by government in the enjoyment of his or her freedom of
Also of central importance to the case is section 14(1) of the Bill of Rights which reads:
“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
The Petitioners assert that the foregoing provisions when taken together, and read and construed within the Constitution as a whole, mandate the remedies which they seek, notwithstanding that the right to marry is expressed insection 14(1), so as to place a limited obligation on government to guarantee that right specifically for couples of the opposite sex.
The Respondents disagree. First, in relation to the right to marry, the Respondents assert that the words of section 14(1) not only guarantee the right for men and women as parties of the opposite sex, but also preclude, by necessary implication, access to marriage by parties of the same sex. Further, that as section 14 (1) is the constitutional provision that provides especially for the right to marry (ie: the “lex specialis”, say the Respondents), it is impermissible for this Court to hold that that right is located elsewhere in the Bill of Rightsn, in particular in the rights to family life, to freedom of conscience and to freedom from discrimination. These, the Respondents describe as the other more general rights invoked by the Petitioners and which do not provide for the right to marry which is said to
As regards the Petitioners' plea that they should be entitled in the alternative to enter into a civil union protected by law, the Respondents say that this is a challenge to the absence of any law on the subject, not a challenge to any positive act of the Respondents. That therefore, this is perforce a matter for the Government to consider, not for the Court to address. Nonetheless, that the Respondents would of course respond to any ruling of the Court to the contrary, with respect for good administration and the rule of law.
That being in broad terms, a preliminary outline of the legal framework for the resolution of the present dispute, the questions which the Court must answer are these:
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• Is the denial of access to the institution of marriage a violation of the Bill of Rights?
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• Is the absence of an alternative institution to marriage that recognizes and protects the Petitioners' relationship, a violation of the Bill of Rights?
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• If either of those first two questions is answered in the affirmative, how will the Court provide a remedy?
It is of course common ground, that the starting point for the analysis is that the Bill of Rights, being a part of the Constitutional Order in Council and so an Act of the United Kingdom Parliament, is part of the Supreme Law of the Islands. In the Cayman Islands, the Legislature's freedom to legislate is therefore constrained to the extent that it must not
pass legislation that is inconsistent with or repugnant to the fundamental rights and freedoms enshrined and protected by the Constitution. 7This is expressly settled by section 124 of the Constitution which defines the “Legislature” as “the Legislature established by section 59(1)” and further by section 59 itself which, even while establishing the Legislature, does so in the following terms:
“59(1) There shall be a Legislature of the Cayman Islands which shall
co ns ist of Her Maj esty 8 and a Legis la live Assembly
(2) Subject to this Constitution, the Legislature may make laws for the peace, order and good government of the Cayman Islands.” [Emphasis added.]
This case arises against the background of the Law having been amended, shortly before the introduction of the Bill of Rights, to express a definition of marriage 9. In this regard, section 2 of the 2008 Marriage (Amendment) Law provided:
““marriage” means the union between a man and a woman as husband and wife.”
Prior to this amendment, the Law was administered on the basis of what was taken to be the common law understanding that marriage indeed meant a union between a man and a
“I conceive that marriage, as understood in Christendom, may for this purpose be...
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