The recent Privy Council judgment dismissing the appeal for the right to have same sex marriage recognised in law has gained a lot of attention in the Cayman Islands. This includes Cayman’s Attorney General, Samuel Bulgin QC, JP, who has now issued a statement.
Right of same sex couples to marry
Based on his statement, the Attorney General welcomed “the extremely important confirmation by the Privy Council of the definition of section 14 of the Constitution, previously provided by the Court of Appeal in its 2019 ruling,” which is that section 14 it is a specific provision in the Bill of Rights which deals with the right to marry and the right is defined in limited terms which do not cover same-sex couples. Further, that limitation cannot be circumvented by seeking to rely on other, general rights which do not address the topic of marriage directly.
In layman’s terms, this means that if two parts of the constitution refer to a similar situation, the part of the constitution addressing the situation in highly specific terms overrides the part of the constitution that only addresses the situation in general terms. In this case, the specific term under section 14 is that “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” and this overrides any terms elsewhere in the constitution that do not contain a specific statement as to the right to marry but only “imply” a right to marry.
Need for functional equivalent of marriage
Another issue reported by the Privy Council is that the previous government and former legislative assembly were in breach of the obligation to provide Ms Bush and Ms Bodden with a legal status functionally equivalent to marriage, such as civil partnership.
According to the Attorney General, this “has now been addressed by the Civil Partnership Act 2020” which the Privy Council also acknowledged in its judgment.
Notwithstanding this judgment and acknowledgement, some same sex couples in Cayman still do not feel that there is legal equity in this area although the Civil Partnership Act may be called the “functional equivalent” to marriage.
Constitution is a “living tree”
While the Cayman constitution is referred to in the Privy Council case as a “living tree,” meaning that the interpretation of the rights it sets out is capable of changing in line with developing social standards, the principle is only capable of extending meaning in line with changing practices and understandings so far as the language used in the relevant constitutional provisions can reasonably be said to bear a particular meaning.
Regarding this, the Attorney General said:
It follows that while a Constitution may be interpreted by the courts from time to time to reflect the ever – evolving norms within contemporary society, such an approach is not free-standing… It has been demonstrated in the instant case this approach is constrained by the highly specific terms in which Section 14 has been crafted, and hence the concept could not be resorted to in order to trump the plain meaning of Section 14(1) of the Constitution which talks about to whom the right to marry is available.
The Attorney General said that, overall “the various rulings by the courts over the years about the 2009 Constitution serve as confirmation that the Constitution and the support systems are working exactly the way they were designed to work and consistent with the rule of law in a thriving democracy” and noted that future, similar challenges to the constitution are to be expected.
The Attorney General said that Chantelle Day and Vicki Bodden-Bush are to be commended for their determination to litigate the issues in their case.