Privy Council Dismisses Appeal To Recognise Same Sex Marriage In The Cayman Islands

• Published date: 17 March 2022
• Subject Matter: Government, Public Sector, Family and Matrimonial, Family Law, Constitutional & Administrative Law
• Law Firm: Campbells
• Author: Ms Natasha Partos

On 14 March 2022 the Privy Council handed down its decision in Day and others v The Governor of the Cayman Islands and another [2022] UKPC 6 dismissing the Appellants' appeal for recognition of same sex marriage in the Cayman Islands.

In brief, the background to the decision is as follows: in early April 2018 Ms Day and Ms Bush, a same sex couple, applied for a marriage licence to recognise their marriage in the Cayman Islands. This application was refused by the Cayman Islands Deputy Registrar on the basis that the Marriage Act (2010 Revision) only recognises marriage as a union between a man and woman. Ms Day and Ms Bush issued a claim in the Grand Court for a determination that the Marriage Act ought to be read in conjunction with the Bill of Rights, Freedoms and Responsibilities (the "Bill of Rights") which constitutes Part 1 of the Constitution of the Cayman Islands and accordingly there should be a constitutional recognition of same sex marriage.

At first instance the Chief Justice found for the Appellants and decided that section 14(1) of the Bill of Rights did not preclude the right for same sex couples to marry and that the refusal to grant the Appellants a marriage licence constituted unjustified discriminatory treatment under section 16 of the Bill of Rights. The Chief Justice found that the Marriage Act would have to be amended to reflect his determination. The Governor appealed the decision to the Cayman Islands Court of Appeal which latterly dismissed the decision at first instance and held that the Bill of Rights does not confer a right for same sex couples to have their marriage recognised in Law.

The Appellants appealed the Court of Appeal decision on the basis that the Marriage Act is an infringement of their constitutional rights under sections 9,10,14 and 16 of the Bill of Rights. Namely,

• Section 9 (1) "Government shall respect every person's private and family life, his or her home and his or her correspondence."
• Section 10 (1) "No person shall be hindered by government in the enjoyment of his or her freedom of conscience."
• section 14 (1) "the 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."
• section 16(1) "Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner in respect of the rights under this Part of the Constitution."

The Appellants invited the...