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Hearings before the Judicial Committee of the Privy Council (traditionally referred to as ‘the Board’) on 3-4 and 23-24 February 2021 (in the Bermuda and the Cayman Islands contexts respectively) saw the final stages of arguments run over the course of several years. The resulting judgments delivered on 14 March 2022 have been widely publicised. Especially across the Caribbean. They have been met with largescale disappointment in the LGBTQ community and among the many others who view implementation of a right to same-sex marriage as so obviously necessary and appropriate as to be beyond the need even for debate.
Do these judgments bring the outcome hoped for? No. Are they entirely bereft of any causes for optimism for those looking to promote issues of same-sex equality? Also, a ‘no’. It is certainly true that the legal issues they deal with require detailed analysis. Looking deeper into the 100+ pages of decisions themselves, beyond the headline outcome of refusal to recognise a constitutional right for same-sex marriage, it seems clear that much has established along the way by the Board that will help those who follow in similar litigation.
If not quite Helen of Troy’s face launching a thousand ships, then this litigation over more than four years (and far longer than that if one includes the contributing forces) can yet serve as the inspiration for efforts by others elsewhere. Such efforts remain ongoing not only in the Caribbean but specifically in a jurisdiction with both a similar relationship with the United Kingdom and a similar route to the Board. That jurisdiction is the Turks and Caicos Islands (‘the TCI’).
In addition to that, it might fairly be said that the Board deftly floated the possibility of some introspection on the part of the jurisdictions without a constitutional protected right of the kind sought by these proceedings. The Cayman Islands judgments end by making it expressly clear that the outcome of the appeal does not prevent the legislature in that jurisdiction from itself introducing legislation by which to recognise same-sex marriage. A matter of choice even if not a right laid down by the respective constitution ([59] of the Cayman Islands judgment (Lord Sales)).
First, the decisions themselves. For reasons that are likely obvious, the same five Justices (four permanent and one acting Justice: Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Dame Victoria Sharp) heard these two appeals. Although with different applicable domestic laws, the themes and many of the arguments applied to those overlapped across the two cases.
The Bermuda decision is Attorney General for Bermuda v Roderick Ferguson and others [2022] UKPC 5 (‘Ferguson’); the Cayman Islands decision is Chantelle Day and another v The Governor of the Cayman Islands and another [2022] UKPC 6 (‘Day’). In Ferguson, of the 78-page judgment of the Privy Council as many as 40 were a dissenting judgment. The dissenting judgment was that of Lord Sales. In Day, it was Lord Sales who delivered the unanimous decision.
Ferguson had its roots in the earlier (also Bermuda) first instance litigation from 2017: Godwin and DeRoche v Registrar General and others [2017] Bda LR 46 (‘Godwin’). In Godwin, a same-sex couple were refused a licence to marry in Bermuda. Judicial review was sought of that refusal, based on human rights legislation. The outcome in Godwin was an order compelling the Registrar of Marriages to issue the necessary licence. That decision led to legislation in Bermuda known as the Domestic Partnership 2018 and which created statutory recognition of same-sex relationships local to Bermuda (‘domestic partnerships’) and also overseas same-sex marriage and civil unions. That legislation effectively abolished same-sex marriage and thereby reversed the effect of Godwin. In Ferguson that legislation was challenged and declarations sought that the Parliament could not validly reverse the decision in Godwin and that same-sex marriage was a right guaranteed by Bermudian law.
The decision at first instance in Ferguson of June 2018 was to the effect that the revocation by legislation of same-sex marriage was discrimination of a kind prohibited by the Bermuda Constitution in that it interfered with a right that it protected: freedom of conscience. The appeal from that in November 2018 was dismissed on the basis that the legislation was passed mainly for religious reasons and therefore a breach of the Bermuda Constitution.
Before the Board in Ferguson the majority decision was that the constitutional validity of legislation was determined by its effect rather than any intention behind it. The Board’s majority decision also held that the legislation was not passed for a religious reason but instead by way of compromise between different viewpoints in Bermuda on the issue of same-sex rights. The majority decision of the Board was that constitutionally protected freedom of conscience did not give rise to a legal recognition of same-sex marriage and therefore that the legislation was not void for revoking such recognition. The dissent of Lord Sales was centred around a difference in his interpretation of the nature of the belief as held: not merely a political belief about how the state should act but instead the same-sex couple’s respective own individual beliefs as to personal religious or ethical obligations.
Finally, in Ferguson the Board decided that the legislation did not discriminate according to creed. This was because the constitutional protection applied to belief systems and not a single belief.
In the Cayman Islands context, Day was described by the Chief Justice in 2019 as ‘tantamount to a dispute over the ownership of the very institution of marriage’ at first instance (Grand Court of the Cayman Islands, Civil Cause 111 of 2018 at Civil Cause 184 of 2018 at [3]). The proceedings were by way of judicial review and then constitutional petition, and which were later consolidated to be heard together.
In Day the marriage licence for the same-sex marriage in the Cayman Islands was applied for in April 2018. It was refused based on the definition of marriage within applicable legislation being for solely opposite sexes. The challenge to that refusal was based on infringement of rights protected under the Bill of Rights. It was successful at first instance. In November 2019, the Cayman Islands Court of Appeal allowed the appeal against that – on the basis that the Bill of Rights did not confer on same-sex couples the right to marry and to have their marriage recognised in law (Court of Appeal of the Cayman Islands CICA No. 9 of 2019).
Before the Board in Day, the rights protected under the Bill of Rights as relied on were: (i) the right to private and family life, (ii) conscience and religion, (iii) marriage and (iv) non-discrimination. In Day (not present in Ferguson because of difference between the wording of the respective constitutions) the express wording in favour of marriage between opposite sexes (the lex specialis) was found by the Board to prevent the constitutional ‘evolution’ for which the same-sex couple contended. In other words, construing the Cayman Islands Constitution as a whole to make it a coherent and internally consistent document prevented other protections generating an evolved equivalent protection in the same-sex context.
The TCI is also a British Overseas Territory in the Caribbean. Its constitutional provisions are strikingly similar to those of the Cayman Islands. That which in Cayman is contained within the Bill of Rights, Freedoms and Responsibilities re-appears in large part in the TCI Constitution as Part 1 Fundamental Rights and Freedoms of the Individual (in force, 15 October 2012: Statutory Instrument 2011 No. 1681 (UK), Legal Notice, TCI, 42/2012); likely reflecting the proximity in (at least) timings of the drafting of their respective constitutions. In Part 1, the TCI also have constitutionally guaranteed rights to marriages. Also, solely for opposite sex couples.
In TCI, the same-sex legal proceedings were started as recently as October 2021. These TCI proceedings are based on the refusal by the Director of Immigration to recognise spousal immigration rights of the (non-Islander) same-sex spouse of a TCI resident. The ‘anchor’ spouse in respect of the spousal immigration rights is a Turks and Caicos Islander. The marriage forming the backdrop to the TCI proceedings took place outside of TCI and in the jurisdiction known to be the largest tourist market for TCI; TCI being a jurisdiction whose economic mainstay is tourism. Importantly, in the TCI proceedings, no right to marry is pursued. Considering the Board’s recent decisions, that is as well. Far from the TCI proceedings facing these outcomes in Ferguson and Day as in any way undermining arguments pursued, the Board’s decisions are heavy with affirmation as of rights – albeit short of the right to same-sex marriage.
There is no definition of ‘spouse’ in either the TCI Constitution or the immigration legislation there. The refusal by the Director of Immigration to recognise same-sex married status was instead based on legislation covering marriage expressly excluding (as void) same-sex marriages.
The current TCI position subject to legal challenge looks a lot like the position criticised by the Cayman Islands Court of Appeal in its judgment of November 2019; that being the absence of a regime of civil partnership and by which to recognise same-sex rights short of the right to marry. In the Cayman Islands context that resulted in the Civil Partnership 2020. The pre-action request in TCI for equivalent civil partnership rights as a way of avoiding the litigation entirely was unfortunately left unanswered. It is to be hoped that the judgments in Ferguson and Day can expedite the appearance of civil partnership legislation in TCI and by doing do avoid several years of re-arguing such similar issues.
In the meantime, the legislative body of which Caribbean jurisdiction will be the first to face its electorate with proposed same-sex marriage legislation must obviously remain a matter for speculation. These two recent decisions appear helpful progress further away from ‘if’ and closer towards ‘when’.
Disappointing as they are on the ‘right to marry’, both Ferguson and Day are endorsement at the highest judicial level of the type of rights still in dispute in TCI. Put another way, the hard-fought legacy in Ferguson and Day can now be deployed to good effect in other jurisdictions.
Tim Prudhoe appears for the same-sex couple in the referenced TCI proceedings.
Tim Prudhoe jointly founded and runs TCI law firm Stanbrook Prudhoe. He appears in all levels of court across the Caribbean and beyond. He is also a member of chambers at 3 Hare Court.
Hearings before the Judicial Committee of the Privy Council (traditionally referred to as ‘the Board’) on 3-4 and 23-24 February 2021 (in the Bermuda and the Cayman Islands contexts respectively) saw the final stages of arguments run over the course of several years. The resulting judgments delivered on 14 March 2022 have been widely publicised. Especially across the Caribbean. They have been met with largescale disappointment in the LGBTQ community and among the many others who view implementation of a right to same-sex marriage as so obviously necessary and appropriate as to be beyond the need even for debate.
Do these judgments bring the outcome hoped for? No. Are they entirely bereft of any causes for optimism for those looking to promote issues of same-sex equality? Also, a ‘no’. It is certainly true that the legal issues they deal with require detailed analysis. Looking deeper into the 100+ pages of decisions themselves, beyond the headline outcome of refusal to recognise a constitutional right for same-sex marriage, it seems clear that much has established along the way by the Board that will help those who follow in similar litigation.
If not quite Helen of Troy’s face launching a thousand ships, then this litigation over more than four years (and far longer than that if one includes the contributing forces) can yet serve as the inspiration for efforts by others elsewhere. Such efforts remain ongoing not only in the Caribbean but specifically in a jurisdiction with both a similar relationship with the United Kingdom and a similar route to the Board. That jurisdiction is the Turks and Caicos Islands (‘the TCI’).
In addition to that, it might fairly be said that the Board deftly floated the possibility of some introspection on the part of the jurisdictions without a constitutional protected right of the kind sought by these proceedings. The Cayman Islands judgments end by making it expressly clear that the outcome of the appeal does not prevent the legislature in that jurisdiction from itself introducing legislation by which to recognise same-sex marriage. A matter of choice even if not a right laid down by the respective constitution ([59] of the Cayman Islands judgment (Lord Sales)).
First, the decisions themselves. For reasons that are likely obvious, the same five Justices (four permanent and one acting Justice: Lord Reed, Lord Hodge, Lady Arden, Lord Sales and Dame Victoria Sharp) heard these two appeals. Although with different applicable domestic laws, the themes and many of the arguments applied to those overlapped across the two cases.
The Bermuda decision is Attorney General for Bermuda v Roderick Ferguson and others [2022] UKPC 5 (‘Ferguson’); the Cayman Islands decision is Chantelle Day and another v The Governor of the Cayman Islands and another [2022] UKPC 6 (‘Day’). In Ferguson, of the 78-page judgment of the Privy Council as many as 40 were a dissenting judgment. The dissenting judgment was that of Lord Sales. In Day, it was Lord Sales who delivered the unanimous decision.
Ferguson had its roots in the earlier (also Bermuda) first instance litigation from 2017: Godwin and DeRoche v Registrar General and others [2017] Bda LR 46 (‘Godwin’). In Godwin, a same-sex couple were refused a licence to marry in Bermuda. Judicial review was sought of that refusal, based on human rights legislation. The outcome in Godwin was an order compelling the Registrar of Marriages to issue the necessary licence. That decision led to legislation in Bermuda known as the Domestic Partnership 2018 and which created statutory recognition of same-sex relationships local to Bermuda (‘domestic partnerships’) and also overseas same-sex marriage and civil unions. That legislation effectively abolished same-sex marriage and thereby reversed the effect of Godwin. In Ferguson that legislation was challenged and declarations sought that the Parliament could not validly reverse the decision in Godwin and that same-sex marriage was a right guaranteed by Bermudian law.
The decision at first instance in Ferguson of June 2018 was to the effect that the revocation by legislation of same-sex marriage was discrimination of a kind prohibited by the Bermuda Constitution in that it interfered with a right that it protected: freedom of conscience. The appeal from that in November 2018 was dismissed on the basis that the legislation was passed mainly for religious reasons and therefore a breach of the Bermuda Constitution.
Before the Board in Ferguson the majority decision was that the constitutional validity of legislation was determined by its effect rather than any intention behind it. The Board’s majority decision also held that the legislation was not passed for a religious reason but instead by way of compromise between different viewpoints in Bermuda on the issue of same-sex rights. The majority decision of the Board was that constitutionally protected freedom of conscience did not give rise to a legal recognition of same-sex marriage and therefore that the legislation was not void for revoking such recognition. The dissent of Lord Sales was centred around a difference in his interpretation of the nature of the belief as held: not merely a political belief about how the state should act but instead the same-sex couple’s respective own individual beliefs as to personal religious or ethical obligations.
Finally, in Ferguson the Board decided that the legislation did not discriminate according to creed. This was because the constitutional protection applied to belief systems and not a single belief.
In the Cayman Islands context, Day was described by the Chief Justice in 2019 as ‘tantamount to a dispute over the ownership of the very institution of marriage’ at first instance (Grand Court of the Cayman Islands, Civil Cause 111 of 2018 at Civil Cause 184 of 2018 at [3]). The proceedings were by way of judicial review and then constitutional petition, and which were later consolidated to be heard together.
In Day the marriage licence for the same-sex marriage in the Cayman Islands was applied for in April 2018. It was refused based on the definition of marriage within applicable legislation being for solely opposite sexes. The challenge to that refusal was based on infringement of rights protected under the Bill of Rights. It was successful at first instance. In November 2019, the Cayman Islands Court of Appeal allowed the appeal against that – on the basis that the Bill of Rights did not confer on same-sex couples the right to marry and to have their marriage recognised in law (Court of Appeal of the Cayman Islands CICA No. 9 of 2019).
Before the Board in Day, the rights protected under the Bill of Rights as relied on were: (i) the right to private and family life, (ii) conscience and religion, (iii) marriage and (iv) non-discrimination. In Day (not present in Ferguson because of difference between the wording of the respective constitutions) the express wording in favour of marriage between opposite sexes (the lex specialis) was found by the Board to prevent the constitutional ‘evolution’ for which the same-sex couple contended. In other words, construing the Cayman Islands Constitution as a whole to make it a coherent and internally consistent document prevented other protections generating an evolved equivalent protection in the same-sex context.
The TCI is also a British Overseas Territory in the Caribbean. Its constitutional provisions are strikingly similar to those of the Cayman Islands. That which in Cayman is contained within the Bill of Rights, Freedoms and Responsibilities re-appears in large part in the TCI Constitution as Part 1 Fundamental Rights and Freedoms of the Individual (in force, 15 October 2012: Statutory Instrument 2011 No. 1681 (UK), Legal Notice, TCI, 42/2012); likely reflecting the proximity in (at least) timings of the drafting of their respective constitutions. In Part 1, the TCI also have constitutionally guaranteed rights to marriages. Also, solely for opposite sex couples.
In TCI, the same-sex legal proceedings were started as recently as October 2021. These TCI proceedings are based on the refusal by the Director of Immigration to recognise spousal immigration rights of the (non-Islander) same-sex spouse of a TCI resident. The ‘anchor’ spouse in respect of the spousal immigration rights is a Turks and Caicos Islander. The marriage forming the backdrop to the TCI proceedings took place outside of TCI and in the jurisdiction known to be the largest tourist market for TCI; TCI being a jurisdiction whose economic mainstay is tourism. Importantly, in the TCI proceedings, no right to marry is pursued. Considering the Board’s recent decisions, that is as well. Far from the TCI proceedings facing these outcomes in Ferguson and Day as in any way undermining arguments pursued, the Board’s decisions are heavy with affirmation as of rights – albeit short of the right to same-sex marriage.
There is no definition of ‘spouse’ in either the TCI Constitution or the immigration legislation there. The refusal by the Director of Immigration to recognise same-sex married status was instead based on legislation covering marriage expressly excluding (as void) same-sex marriages.
The current TCI position subject to legal challenge looks a lot like the position criticised by the Cayman Islands Court of Appeal in its judgment of November 2019; that being the absence of a regime of civil partnership and by which to recognise same-sex rights short of the right to marry. In the Cayman Islands context that resulted in the Civil Partnership 2020. The pre-action request in TCI for equivalent civil partnership rights as a way of avoiding the litigation entirely was unfortunately left unanswered. It is to be hoped that the judgments in Ferguson and Day can expedite the appearance of civil partnership legislation in TCI and by doing do avoid several years of re-arguing such similar issues.
In the meantime, the legislative body of which Caribbean jurisdiction will be the first to face its electorate with proposed same-sex marriage legislation must obviously remain a matter for speculation. These two recent decisions appear helpful progress further away from ‘if’ and closer towards ‘when’.
Disappointing as they are on the ‘right to marry’, both Ferguson and Day are endorsement at the highest judicial level of the type of rights still in dispute in TCI. Put another way, the hard-fought legacy in Ferguson and Day can now be deployed to good effect in other jurisdictions.
Tim Prudhoe appears for the same-sex couple in the referenced TCI proceedings.
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