Deputy Registrar and Attorney General v Day and Bodden Bush

• Jurisdiction: Cayman Islands
• Judge: (Goldring, P., Field and Morrison, JJ.A.)
• Judgment Date: 07 November 2019
• Court: Court of Appeal (Cayman Islands)
• Date: 07 November 2019

DEPUTY REGISTRAR and ATTORNEY GENERAL

and

DAY and BODDEN BUSH

(Goldring, P., Field and Morrison, JJ.A.)

Court of Appeal (Cayman Islands)

Family Law — marriage — same-sex marriage — Bill of Rights, s.14 defines marriage as between man and woman — precludes same-sex marriage — Legislative Assembly to provide legal status functionally equivalent to marriage

Held, allowing the appeal and setting aside the Chief Justice’s orders:

(1) Although the court could understand how and why the Chief Justice reached the decision he did, the appeal would be allowed and the orders made by the Chief Justice would be set aside. The court could not accept the respondents’ submission that s.14 was included in the BOR to protect the institution of marriage from abolition. It was plainly intended to confer a specific right in the terms stated. The wording of s.14(1), which defined marriage in terms of marriage between a man and a woman, precluded same-sex marriage. If the framers of the Constitution had intended that same-sex couples should have a constitutional right to marry, the words “of the opposite sex” would have been otiose and misleading. The absence of the word “only” before “of the opposite sex” did not support the proposition that the limitation could be ignored, circumvented or expanded to include persons of the same sex. As the appellants submitted, the position under the BOR, while restricting the right to marry and found a family to opposite-sex couples, did not deprive same-sex couples of the right to respect for private and family life (under s.9), which applied equally to same-sex and opposite-sex couples. The BOR was based on the ECHR. At the time of the legislation the jurisprudence of the ECtHR in respect of marriage was clear: art. 12 did not impose an obligation to grant a same-sex couple access to marriage, that obligation only arose in respect of opposite-sex couples. Subsequently, the court held that a right to marry could not be derived from ECHR art. 8 in conjunction with art. 14. The rationale underlying the decisions of the ECtHR applied equally to the BOR. Just as a right to marry could not be derived from ECHR, arts. 8 and 14, because art. 12 was the lex specialis as far as marriage was concerned, so it could not be derived from BOR ss. 9 and 16 (or ss. 10 and 16) as s.14 was the lex specialis. In respect of the decisions from other jurisdictions concerning same-sex marriage, in none of the decisions was the court considering a constitutional right to marry which was expressly limited to opposite-sex couples. The court observed that while cases to which its attention was drawn might indicate changing social mores as far as same-sex marriage was concerned, that was by no means universal. In a number of Caribbean jurisdictions, for example, there was no right to same-sex marriage. As to the negotiations leading up to the adoption of the Constitution, the court agreed that they tended to support the appellants’ construction of s.14 but the court did not have recourse to the negotiating history as the meaning and effect of the provision was sufficiently clear (paras. 95–115).

(2) The appellants accepted that s.9(1) of the BOR required the Legislative Assembly to provide the respondents with legal status functionally equivalent to marriage. It had failed to do so. A declaration in the following form was appropriate:

“In recognition of the longstanding and continuing failure of the Legislative Assembly of the Cayman Islands to comply with its legal obligations under section 9 of the Bill of Rights

And in recognition of the Legislative Assembly’s longstanding and continuing violation of Article 8 of the European Convention on Human Rights,

it is declared that:

Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage” (paras. 116–117).

Cases cited:

(1)Ferguson v. Att. Gen., [2018] SC (Bda) 46 Civ; on appeal, [2018] CA (Bda) 32 Civ, considered.

(2)Fourie v. Home Affairs Min., [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC), considered.

(3)Halpern v. Canada (Att. Gen.), 2004 SCC 79; [2004] 3 SCR 698, considered.

(4)Hämäläinen v. Finland, App. No. 37359/09, ECtHR, July 16th, 2014, considered.

(5)Hewitt v. Rivers, 2013 (2) CILR 262, considered.

(6)Home Affairs Min. v. Fisher, [1980] 1 A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, considered.

(7)Hunter v. Southam Inc., [1984] 2 SCR 145, considered.

(8)Joslin v. New Zealand, Comm. No. 902/1999, CCPR/C/75/D/902/1999, July 17th, 2002, considered.

(9)McLaughlin, In re, [2018] UKSC 48; [2018] 1 W.L.R. 4250, distinguished.

(10)Matadeen v. Pointu, [1999] 1 A.C. 98; [1998] 3 W.L.R. 18, considered.

(11)Matthew v. The State, [2004] UKPC 33; [2005] 1 A.C. 433; [2004] 3 W.L.R. 812, considered.

(12)Obergefell v. Hodges (2015), 576 US 644, considered.

(13)Oliari v. Italy, [2015] ECHR 716; (2017), 65 EHRR 26; 40 BHRC 549, considered.

(14)Orlandi v. Italy, App. Nos. 26431/12, 26742/12, 44057/12 and 60088/12, ECtHR, December 14th, 2017, considered.

(15)R & F v. United Kingdom, App. No. 35748/05, ECtHR, November 28th, 2006, considered.

(16)Reyes v. R., [2002] UKPC 11; [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034, considered.

(17)Schalk v. Austria, [2010] ECHR 995; (2011), 53 EHRR 20, considered.

(18)Spence v. R.; Hughes v. R., Cr. App. Nos. 14 of 1997 (St. Lucia) and 20 of 1998 (St. Vincent & The Grenadines), Eastern Caribbean Ct., April 2nd, 2001, considered.

(19)State v. Zuma, 1995 (2) SA 642, considered.

Legislation construed:

Marriage (Amendment) Law 2008, introduction: The relevant terms of the introduction are set out at para. 9.

Marriage Law (2010 Revision), s.2: The relevant terms of this section are set out at para. 2.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.1: The relevant terms of this section are set out at para. 15.

s.5: The relevant terms of this section are set out at para. 6.

s.9: The relevant terms of this section are set out at para. 20.

s.10(1): The relevant terms of this sub-section are set out at para. 23.

s.14: The relevant terms of this section are set out at para. 17.

s.16(1): The relevant terms of this sub-section are set out at para. 26.

Schedule to the Constitution: The relevant terms of this schedule are set out at para. 14.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmd. 8969), art. 8: The relevant terms of this article are set out at para. 21.

art. 9: The relevant terms of this article are set out at para. 24.

art. 12: The relevant terms of this article are set out at para. 18.

art. 14: The relevant terms of this article are set out at para. 27.

Charter of Fundamental Rights of the European Union, art. 9: The relevant terms of this article are set out at para. 45.

International Covenant on Civil and Political Rights, art. 23: The relevant terms of this article are set out at para. 63.

Bermuda Constitution Order 1968, s.8(1): The relevant terms of this sub-section are set out at para. 79.

The respondents wished to marry.

The respondents, who were both women, wished to marry in the Cayman Islands. The Deputy Registrar refused to grant them a licence, relying on s.2 of the Marriage Law (2010 Revision), which defined marriage in terms of “the union between a man and a woman as husband and wife.”

The respondents applied to the Grand Court for orders to enable them to marry. They sought declarations that the Marriage Law did not conform with their rights as enshrined in the Bill of Rights, Freedoms and Responsibilities (“the BOR”). They claimed that the Marriage Law infringed their rights to private and family life under s.9(1), their freedom of conscience under s.10(1), their right to marry and found a family under s.14(1) and their right to non-discrimination under s.16(1). They sought a declaration that the Marriage Law should be “read and construed with such modifications, adaptations, qualifications . . . as may be necessary to bring [it] . . . into conformity with the Constitution.” The respondents claimed that they were entitled to marry but sought, as a minimum, a declaration that provision should be made for them to enter into a civil partnership.

Section 14(1) of the BOR provided: “Government shall respect the right of every unmarried man and woman of marriageable age . . . freely to marry a person of the opposite sex and found a family.”

The Chief Justice found that the BOR did give the respondents the right to marry and that the appellants and the Governor of the Cayman Islands were accordingly in violation of the respondents’ rights under the BOR. The Chief Justice ordered that s.2 of the Marriage Law be modified under s.5 of the Constitution Order so as to read “‘marriage’ means the union between two people as one another’s spouses.” The judgment was stayed pending determination of the appellants’ appeal.

The appellants submitted inter alia that (a) by defining marriage in terms of an institution available only to opposite-sex couples, the Marriage Law did not violate any right enshrined by the Constitution; (b) as a matter of syntax and logic, the words “the right of every unmarried man and woman of marriageable age . . . freely to marry a person of the opposite sex” made up a single, composite expression; (c) if the framers of the Constitution had intended that same-sex couples should enjoy a constitutional right to marry, the words “of the opposite sex” would be otiose and misleading; (d) it was not for the courts to impose their own values because they disagreed with the values expressed in a constitution; and (e) the history of the negotiations leading up to the adoption of the Constitution was admissible and confirmed the appellants’ construction of s.14. The appellants accepted that, under s.9(1) of the BOR, the Legislative Assembly of the Cayman Islands was required to provide the respondents...