The Court of Appeal of the Cayman Islands (Goldring P, Field and Morrison JJA) has allowed the Government’s appeal in The Deputy Registrar of the Cayman Islands and The Attorney General of the Cayman Islands v Day (Chantelle) and Bush (Vickie Bodden) CICA No. 9 of 2019 (7 November 2019).
The issue before the Court of Appeal was whether the right to marry under the Constitution of the Cayman Islands extends to same-sex couples. Section 14(1) of the Constitution provides:
“14.—(1) 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 Court of Appeal, overturning the judgment of the Grand Court below (Smellie CJ), held that the right to marry under section 14(1) was confined to opposite-sex couples. Given that intention, the Court held that it would be wrong to circumvent the clear legislative intention by implying a right to marry a person of the same sex into other, more general provisions of the Constitution – such as those dealing with private and family life, freedom of thought and conscience, or non-discrimination. Whether or not to introduce same-sex marriage, and if so when, were matters for the Legislative Assembly.
In accordance with the Government’s concession that the absence of any legal framework for the recognition and protection of same-sex relationships was incompatible with the right to respect for private and family life, the Court declared that:
“Chantelle Day and Vickie Bodden Bush are entitled, expeditiously, to legal protection in the Cayman Islands, which is functionally equivalent to marriage.”
Sir Jeffrey Jowell QC, Dinah Rose QC and Tim Parker acted for the Deputy Registrar and Attorney General.