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Privy Council Upholds Caymanian and Bermudan Constitutions Ban on Same-Sex Marriage

The Privy Council has upheld the ban on same-sex marriage in the constitutions of the Cayman Islands and Bermuda.

In a 4-1 ruling released on 14 March, the Council dismissed an appeal brought by two women in Grand Cayman in an attempt to overturn a section of the Cayman Islands Constitution that banned same-sex marriage.

In Grand Cayman, Chantelle Day and Vickie Bodden-Bush were denied a marriage licence in 2018.  They then appealed to the courts.  One judge ruled in their favour but the matter was brought before the Caymanian Appeals Court.  The local appellate court then sided with the Caymanian constitution and the women made an appeal to the Privy Council.

According to the Cayman Compass newspaper, 

“When returning their decision, the Privy Council stated that section 14 (1) of Cayman’s Bill of Rights defines who has a constitutional right to marriage.

[T]he interpretation of the other general provisions… which do not stipulate for a right to marry, must take account of this and cannot be developed to circumvent the express limits on the right to marry in section 14(1),” the ruling states.

The judgment maintains that, to do so, would undermine the coherence of the Bill of Rights.

The Privy Council said it was guided by the European Convention on Human Rights when coming to its decision, finding that the equivalent article limits the scope of the right to marry to being between a man and a woman.

However, the judgment also states that this interpretation of the Bill of Rights does not prevent Cayman’s Parliament from introducing legislation which recognises same-sex marriage.

“[T]his is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution,” the final paragraph of the judgment states.”

The Privy Council is the final court of appeal for British Overseas Territories but activists on Grand Cayman have vowed to take the case to the European Court of Human Rights.

The Cayman Islands has a population of roughly 60,000 with only 20,000 being citizens.  The others are citizens from outside the jurisdiction and are employed in the legal, financial, or tourism sectors but do not have the right to vote.  About 1/3 of Bermuda’s population are on work visas.

Caymanians and Bermudans are very traditional and there has been widespread support in opposition of allowing same-sex unions.  On Grand Cayman, this is in conflict with the majority of the population who are workers on visas from countries that hold different views. 

The ruling also addressed the same question in Bermuda.  In short, British Overseas Territories  have the right to determine the boundaries of marriage within their own constitutions.  There are a total of six British Overseas Territories that do not permit or recognise same-sex unions. The other four are, British Virgin Islands, Anguilla, Montserrat and Turks & Caicos.

The British Overseas Territories in the Caribbean are not the only jurisdictions that either prohibit or do not recognise same-sex marriage. Antigua & Barbuda, Jamaica, Barbados, Dominica, Grenada, St Vincent & the Grenadines, Aruba, St Maarten/Martin, St Kitts & Nevis, & Trinidad & Tobago all fall into the same category.