Chantelle Day and another v The Governor of the Cayman Islands and another (Cayman Islands)

A written constitution must be read as a coherent whole. Where it contains a specific provision governing a subject, that lex specialis controls the interpretation of more general rights. Section 14(1) of the Cayman Islands Constitution Order 2009 expressly confines the right to marry to an unmarried man and woman marrying a person of the opposite sex. Sections 9, 10 and 16 cannot be used to create indirectly a same-sex marriage right. Generous, purposive and “living tree” approaches remain bounded by the language and structure of the Constitution. The section 14(1) limitation defines the right; it is not a restriction subject to justification under section 16(7)(b). The appeal was dismissed. The Legislative Assembly remains free to legislate for same-sex marriage.

The appellants, who were a same-sex couple, were refused a marriage licence under section 2 of the Marriage Law (2010 Revision). Their judicial review proceedings and constitutional petition succeeded in the Grand Court, where the Chief Justice interpreted the Marriage Law to include same-sex marriage.

The Court of Appeal allowed the Government’s appeal. It held that section 14 of the Bill of Rights was the specific provision governing marriage and that sections 9, 10 and 16 could not create a same-sex marriage right indirectly. It nevertheless declared that the absence of a functionally equivalent civil-partnership regime breached section 9. The principal issue before the Board was whether the Bill of Rights conferred a right to same-sex marriage and, if so, whether section 5 of the 2009 Order authorised amendment of the Marriage Law.

1. Disposition. The Board advised that the appeal be dismissed and the judgment of the Court of Appeal upheld. Since the appeal failed on the interpretation of the Bill of Rights, it was unnecessary to determine the meaning or effect of section 5 of the 2009 Order.
2. Constitutional interpretation. Constitutional provisions must be interpreted by reference to their language, context, history and purpose, as part of a coherent and enduring scheme. The Board followed the approach in Matadeen v Pointu [1999] 1 AC 98 and Reyes v The Queen [2002] UKPC 11. A generous, purposive or living-tree interpretation is not a licence to disregard the constitutional text or impose judicial moral preferences. The principles in Edwards v Attorney General for Canada [1930] AC 124 and Minister of Home Affairs v Fisher [1980] AC 319 operate within the language reasonably available.
3. Lex specialis. The Bill of Rights must be read as a coherent whole. Section 14(1) is the lex specialis governing the right to marry. Its specific wording confines that right to opposite-sex couples. Sections 9, 10 and 16, being general provisions, cannot be interpreted to circumvent those express limits or make section 14(1) redundant. Section 14(1)’s reference to founding a family concerns family founded within the marriage it defines; section 9 protects family life generally and does not create a right to same-sex marriage.
4. Discrimination and justification. The wording of section 14(1) defines the scope of the right. It is not a restriction on that right for the purposes of section 16(7)(b), so the limitation is not subject to a separate justification test.
5. Comparative and other authorities. The reasoning of the European Court of Human Rights in Schalk and Kopf v Austria (2011) 53 EHRR 20, Hämäläinen v Finland (2014) 37 BHRC 55, Oliari v Italy (2017) 65 EHRR 26 and Orlandi v Italy supported that construction. The Board rejected the reasoning of In re Close’s Application for Judicial Review [2020] NICA 20 as inconsistent with the Strasbourg authorities, and distinguished R (Steinfeld) v Secretary of State for International Development [2018] UKSC 32 because it concerned civil partnerships, not marriage.
6. Travaux préparatoires and legislative choice. The clarity and precision of section 14(1) made reference to the travaux préparatoires unnecessary. Public legal certainty also weighed against reliance on private, unpublished material. The interpretation adopted did not prevent the Legislative Assembly from legislating for same-sex marriage; it meant only that such marriage was not constitutionally required.

1. Privy Council. The appeal from the Court of Appeal of the Cayman Islands was dismissed and the Court of Appeal’s judgment upheld.
2. Court of Appeal of the Cayman Islands. The Government’s appeal from the Grand Court was allowed. The court held that the Bill of Rights did not confer a right to same-sex marriage, while declaring that the absence of a functionally equivalent civil-partnership regime breached section 9.
3. Grand Court. The Chief Justice held that the Bill of Rights protected a right to same-sex marriage through sections 9, 10 and 16 and interpreted the Marriage Law (2010 Revision) accordingly.