Introduction
Over the previous two decades a consensus had been emerging amongst constitutional courts in the common law world, at both the state and national levels, that laws prohibiting same sex marriage were unconstitutional. Of particular significance to the emergence of this consensus were the decisions of three apex constitutional courts: the Supreme Court of Canada in Reference re Same-Sex Marriage [2004] 3 SCR 698; the Constitutional Court of South Africa in Minister of Home Affairs v Fourie [2005] ZACC 19; and the US Supreme Court in Obergefell v Hodges 135 S CT 2584 (2015). Most recently, however, this consensus has been disrupted by two contemporaneous judgments of the Judicial Committee of the Privy Council (JCPC) – Attorney General for Bermuda v Ferguson [2022] UKPC 5 and Day v The Governor of the Cayman Islands [2022] UKPC 6 – in which the JCPC upheld the constitutionality of laws limiting marriage to opposite sex couples in two of the UK’s Overseas Territories (OTs), Bermuda and the Cayman Islands.
The transnational jurisdiction of the JCPC – which requires that all decisions of the JCPC are binding upon all courts which accept its appellate jurisdiction – means that these judgments have significant practical implications for the gay and lesbian communities in the UK’s other OTs which, like Bermuda and Cayman Islands, prohibit same-sex marriage (Anguilla, British Virgin Islands, Montserrat, and Turks and Caicos), as well as for gay and lesbian communities in the other countries which continue to retain the JCPC as their final appellate court and which do not permit same-sex marriage (for example, the Bahamas). The judgments may also have implications for countries which prohibit same sex marriage and no longer retain the JCPC as their final appellate court but whose judges continue to be influenced by the jurisprudence of the JCPC (the judgments in AG Bermuda v Ferguson and Day v Cayman Islands were cited by Hong Kong’s Court of First Instance in a case about the right to same sex marriage – MK v Government of HKSAR [2019] HKCFI 2518). Quite apart from their practical implications, however, the judgments should also be of particular interest to comparative law scholars because of the insights that they offer to the JCPC’s current approach to the use of comparative law as a guide to constitutional interpretation. To this end, I will first examine the JCPC’s reliance on the decisions of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) when determining whether the Constitution of the Cayman Islands guaranteed a right to same-sex marriage. I will then turn to examine the JCPC’s reasons for discounting the jurisprudence of the apex constitutional courts identified above when considering whether Bermuda’s Constitution could be interpreted as guaranteeing a right to same sex marriage.
The UNHRC and the ECtHR and the Right to Same Sex Marriage
The rights guaranteed by the Constitution of the Cayman Islands closely resemble the rights guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), though the right to marry under Article 14 of the Cayman Constitution is drawn even more narrowly than the corresponding right under Article 12 of the ECHR and Article 23(2) of the ICCPR, being limited to the right of ‘every unmarried man and woman of marriageable age…to marry a person of the opposite sex.’
It is for this reason that lawyers for the appellants in Day v Cayman Islands relied not on Article 14, but Article 9 of the Constitution, which guarantees a right to a private and family life as guaranteeing the right to same sex marriage, together with Article 16, which prohibits discrimination. The appellants submitted that, applying the principle that a constitution is ‘a living tree capable of growth and expansion within its natural limits’ (Edwards v AG for Canada [1930] AC 124, 136), there was no reason why the right to a private and family life should not extend to include the right of same-sex couples to marry: Article 8 ECHR, which is in almost identical terms to Article 9, having been recognised by the ECtHR to include the right to enter into same-sex relationships and have them recognised in law: Oliari v Italy Application nos 18766/11 and 36030/11 (21 July 2015).
In rejecting this argument, the JCPC adopted a strictly ‘textual’ approach to Cayman’s Constitution. Notwithstanding the importance of the living tree principle, in the JCPC’s view it was only capable of extending the meaning of a right ‘in… so far as the language used in the relevant constitutional provisions can reasonably be said to bear a particular meaning’ (para 37). The highly specific terms in which Article 14 was drafted meant, in the JCPC’s view, that it was intended to operate as a lex specialis. As a result, a right of same-sex marriage could not be found to exist in any of the other provisions of Cayman’s Bill of Rights which, being general, could not be read as displacing or circumventing the way in which the drafters of the Constitution had specified the express right to marry in Article 14. In reaching this conclusion the JCPC was satisfied that its interpretation of Article 14 was consistent with the reasoning of the UNHRC in Joslin v New Zealand ¶ 2.1, U.N.Doc A/57/40 at 214 (17 July 2002) and the ECtHR in Schalk and Kopf v Austria App no 30141/04, 24 June 2010). In the case of the former, the UNHRC had reasoned that the use of the phrase ‘men and women’ in Article 23(2) was specific not generic in contrast to other ICCPR provisions that are gender-neutral. Accordingly, the legal duty imposed on the state by Article 23(2) was simply to recognise a marriage between a man and a woman wishing to marry each other. In the case of the latter, the ECtHR had gone even further by concluding not only that Article 12 did not guarantee a right to same sex marriage, but also that Article 8 (the right to a private life), should not be interpreted as imposing an obligation upon the state parties to make provision for same-sex marriage because this would be inconsistent with the guarantee afforded by Article 12.
The corroborative value which the JCPC attached to the decisions of the ECtHR in Schalk and Kopf and the UNHRC in Joslin is, however, deeply concerning because it takes no account of the sustained criticism of both these decisions by legal scholars. In particular, the reasoning of the ECtHR and UNHCR with regard to the inclusion of the words men and women Articles 12 and 23(2) respectively have been criticised by scholars as being based on a failure to understand that the reason for including the words ‘men and women’ had nothing to do with prohibiting same-sex marriage but rather was based on an ambition to ensure women’s access to equality of treatment at all stages of matrimony; see, for example, Paul Johnson, ‘”The choice of wording must be regarded as deliberate”: same-sex marriage and Article 12 of the European Convention on Human Rights’ (2015) 40(2) European Law Review 207.
In the light of these criticisms, it would seem that neither Schalk and Kopf nor Joslin are sufficiently stable foundations upon which to definitively conclude that the Cayman Constitution, which includes both a guarantee to a private life and a guarantee of non-discrimination based on sexual orientation, cannot be read so as to include a right to same-sex marriage.
Comparative Jurisprudence on Same Sex Marriage
In AG Bermuda v Ferguson, the JCPC was concerned with the constitutionality of section 53 of the Domestic Partnership Act. Section 53 had explicitly reversed the effect of the Bermudan Supreme Court’s judgment, in Godwin and DeRoche v Registrar General (22 September 2017)legalising same-sex marriage, and re-instated the prior prohibition on same-sex marriage.
The Court of Appeal of Bermuda ruled that section 53 was unconstitutional on the grounds that it was enacted for a religious purpose and that it violated the appellants’ rights under section 8 of the Constitution not to be hindered in the enjoyment of their freedom of conscience with regard to their belief that same-sex unions should be legally recognised as marriage. Overruling the Court of Appeal on both grounds, the JCPC held that the Constitution neither expressly nor impliedly banned the enactment of legislation for a religious purpose, and even if the respondents’ beliefs were protected by section 8, such protection did not extend to imposing on the state an obligation to give legal recognition to same-sex-marriage.
What is of particular interest for present purposes is the JCPC’s refusal to engage with the formidable body of jurisprudence of the apex constitutional courts of Canada, South Africa and the United States on the issue of same sex marriage when interpreting the Bermudan Constitution. In discounting this body of jurisprudence, the JCPC cited the lack of a ‘sufficient connection’ or ‘analogue’ between the provisions upon which those courts relied and the provisions which were the focus of the JCPC’s scrutiny. This aspect of the JCPC’s reasoning in Ferguson is, to say the least, puzzling because there is a clear analogue in the Bermudan Constitution to the provisions applied by those other constitutional courts; namely section 1, which prohibits discrimination and affirms the right to life, liberty, security of the person and the protection of the law (emphasis added).
Even if not worded identically, section 1 expressly declares the same commitment to the equal protection of the law which was relied on by the Canadian Supreme Court and the Constitutional Court of South Africa and the same commitment to liberty which was relied on by the US Supreme Court in affirming a constitutional right to same sex marriage. Importantly, section 1 ‘guarantees a more compendious set of rights at a greater level of generality and in distinctly more positive language than is to be found in the remainder of the Bill of Rights’: Tracy Robinson and Arif Bulkan, ‘Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights’ (2017) 80 Modern Law Review 379.
Conclusion
There can be no doubt that the decisions of the JCPC in Day v Cayman Islands and AG Bermuda v Ferguson represent a significant setback for the cause of same-sex marriage which had appeared to be spreading inexorably across the common law world as a result of the decisions of the apex constitutional courts identified above. The position could have been quite different if the JCPC had taken a less text-bound and more outward looking approach to constitutional interpretation, sensitive to the impact of the ban on same sex marriage on members of the gay and lesbian communities in Bermuda and the Cayman Islands. If, for example, the JCPC had been more receptive to the criticisms of the jurisprudence of the ECtHR in Schalk and Kopf and the UNHRC in Joslin regarding the meaning of the right to marry, it may have been more readily persuaded to accept in Day v Cayman Islands that the right to a private and family life, in conjunction with the right not to be discriminated against on the ground of sexual orientation, included the right to same-sex marriage. Again, the position could have been quite different if, in AG Bermuda v Ferguson, the JCPC had realised the potential afforded by section 1 of Bermuda’s Bill of Rights to recognise a constitutional right to same-sex marriage based on common foundational principles such as liberty and equality which transcend differences between constitutional texts.
Posted by Dr Derek O’Brien, Reader in Public Law, Oxford Brookes University
Derek gave a presentation on this topic at the Annual Seminar of the British Association of Comparative Law on 27 June 2023.
Suggested citation: D O’Brien, ‘The Right To Same Sex Marriage: The Judicial Committee Of The Privy Council, Constitutional Interpretation And Comparative Law’, BACL Blog, available at https://british-association-comparative-law.org/2023/12/01/the-right-to-same-sex-marriage-the-judicial-committee-of-the-privy-council-constitutional-interpretation-and-comparative-law/
British Association of Comparative Law 
1 Comment
Comments are closed.