From Judgments from the JCPC

• Attorney General for Bermuda (Appellant) v Ferguson and others (Respondents) (Bermuda) – JCPC 2019/0077

Jurisdiction: Court of Appeal for Bermuda

The Bermudian Parliament passed the Domestic Partnership Act 2018, which provided for same-sex couples to enter into domestic partnerships and declared that a marriage is void unless the parties are respectively male and female. The Respondents, being individuals affected by the legislation and a Bermudian church which supports and conducts same-sex marriages, applied to the Supreme Court of Bermuda for a declaration that the provisions of the 2018 Act which purported to revoke same-sex marriage contravened the Bermudian constitution.

The Supreme Court of Bermuda ruled in favour of the Respondents, holding that s. 53 of the 2018 Act contravened sections 8 and 12 of the Bermudian constitution. The Court of Appeal for Bermuda allowed the Attorney General’s appeal only in part, holding that s. 53 of the 2018 Act contravened section 8 (but not section 12) of the constitution, but the Court also held that s. 53 was void on the grounds that it was enacted for a religious purpose. The Attorney General now appeals to the Judicial Committee of the Privy Council. The Respondents are seeking to cross-appeal for a declaration that the 2018 Act contravenes section 12 of the constitution.

The issue is: whether Bermudian legislation providing that only marriages between a man and a woman will be recognised as such in law infringes the Bermudian constitution.

The Board allows the appeal. Lord Hodge and Lady Arden give the judgment of the Board, with which Lord Reed and Dame Victoria Sharp agree. Lord Sales gives a dissenting judgment.

More information is available on our website.

• Day and another (Appellants) v The Governor of the Cayman Islands and another (Respondents) (Cayman Islands) – JCPC 2020/0033

Jurisdiction: Court of Appeal of the Cayman Islands

Ms Chantelle Day and Ms Vickie Bodden Bush are two adult women in a committed relationship. They live with their daughter in the Cayman Islands, and wish to marry there. In 2018, the Deputy Registrar refused their application for the appropriate marriage licence, on the basis that the Marriage Law of the Cayman Islands defines “marriage” to mean “the union between a man and a woman as husband and wife”.

Ms Day and Ms Bush sought to challenge the Marriage Law and the Deputy Registrar’s decision as incompatible with the Bill of Rights in the Constitution of the Cayman Islands. They were successful at first instance. The Grand Court of the Cayman Islands found there to be violations of their right to private and family life, their freedom of conscience and freedom to manifest their belief in marriage, and their freedom from discrimination in the enjoyment of their rights. The Court exercised its power under the Constitution to modify the Marriage Law so as that “marriage” was defined to mean “the union between two people as one another’s spouses”.

The Deputy Registrar and the Attorney General appealed successfully against that decision to the Court of Appeal of the Cayman Islands, which decided that the right to marry under the Caymanian Constitution does not extend to same-sex couples. The Court of Appeal did, however, declare that Ms Day and Ms Bush were entitled to legal protection functionally equivalent to marriage.

Ms Day and Ms Bush now appeal to the Judicial Committee of the Privy Council.

The issues are:

(1) Does the Bill of Rights in the Constitution of the Cayman Islands provide a right for Ms Day and Ms Bush to access the institution of marriage?

(2) If so, should the Order of the Grand Court of the Cayman Islands – which modified the Marriage Law so as that “marriage” is defined to mean “the union between two people as one another’s spouses” – be restored?

The Board dismisses the appeal. Lord Sales gives the judgment of the Board.

More information is available on our website.

Attorney General for Bermuda (Appellant) v Roderick Ferguson and others (Respondents) (Bermuda)
[2022] UKPC 5

On appeal from the Court of Appeal for Bermuda

JUSTICES: Lord Reed, Lord Hodge, Lady Arden, Lord Sales, Dame Victoria Sharp

BACKGROUND TO THE APPEAL

This appeal is about whether the law of Bermuda recognises same-sex marriage.

Section 53 of the Domestic Partnership Act 2018 of Bermuda (“the DPA”) confines marriage to a union between a man and a woman. The terms of the DPA state that its provisions are to take effect notwithstanding anything to the contrary in the Human Rights Act 1981 of Bermuda (“the HRA”). The protections of the HRA are therefore not available in support of same-sex marriage.

The Bermudian Constitution (“the Constitution”) sets out fundamental rights and freedoms in Chapter 1. The Constitution does not expressly confer any right to marry. Sections 8 and 12 of the Constitution guarantee freedom of conscience and protection from particular forms of discrimination, including creed-based discrimination, respectively. Furthermore, the European Convention on Human Rights (“the Convention”) applies to Bermuda as a matter of international law and is relevant to the interpretation of its constitutional rights.

The validity of section 53 of the DPA is challenged by the respondents on three grounds: (1) it was passed primarily or mainly for a religious purpose contrary to the secular nature of the Constitution; (2) it hinders the enjoyment of the respondents’ belief in same sex marriage as an institution recognised by law contrary to section 8 of the Constitution; and (3) it affords different treatment to the respondents and others attributable to their description by creed contrary to section 12 of the Constitution.

The respondents, who are a gay Bermudian, a lesbian Bermudian, a Bermudian LGBTQ charity, and three Bermudians associated with two Bermudian churches, succeeded in the courts below. The Attorney General of Bermuda now appeals to the Board.

JUDGMENT

The Board allows the appeal. Lord Hodge and Lady Arden give the judgment of the Board, with which Lord Reed and Dame Victoria Sharp agree. Lord Sales gives a dissenting judgment.

REASONS FOR THE JUDGMENT

Ground one: religiously motivated legislation

The Board holds that there is no provision in the Constitution nullifying legislation on the ground that it is enacted for a religious purpose [44-46]. Constitutional validity is not determined by the purpose of legislation but by its effect [48-51, 55]. Judgments from courts in jurisdictions which have held that the enactment of legislation for a religious purpose is unconstitutional do not provide a template for other common law jurisdictions, including Bermuda, in which society has developed differently [53-54]. In any event, the DPA was not passed for a religious purpose [58]. It was passed as a compromise between different opinions in Bermuda as well as to fulfil an electoral promise [56, 58].

Ground two: freedom of conscience

The Board records that, as the Chief Justice of Bermuda found at first instance, the respondents seek protection for their belief in same-sex marriage as an institution recognised by law [33, 70-71].

Section 8 of the Constitution prohibits the state from hindering a person’s enjoyment of freedom of conscience, including both the person’s private thoughts and beliefs and their manifestation and propagation of such thoughts or beliefs [62]. Section 8 does not, however, impose on the state an obligation to give legal recognition to same-sex marriage [64]. There are two alternative ways of analysing the matter, drawing from case law on the Convention, both of which lead to the same result [65].

On the first approach, the respondents’ belief falls within the scope of section 8, but that belief is not interfered with by the state failing to legally recognise same-sex marriage. Changing social attitudes internationally in the last 60 years mean the respondents’ belief meets the requirements for protection under the Convention as laid down by the European Court of Human Rights (“the Strasbourg Court”) [67-69]. However, neither the Bermudian government nor legislature has interfered with the respondents’ belief that Bermuda should give legal recognition to same-sex marriage or their ability to manifest and propagate such beliefs [71-75]. The respondents are free to argue forcefully in favour of such recognition, and churches or other religious bodies may carry out marriage ceremonies for same-sex couples and recognise those unions as a matter of religious practice [76-77]. Section 8 does not however extend to imposing a positive obligation on the state to make the law comply with the respondents’ belief [78].

On the second approach, the respondents’ belief in the legal recognition of marriage is not an expression of conscience and section 8 cannot be interpreted as requiring the state to give such legal recognition, which would be inconsistent with the absence of any protection in the Constitution against discrimination on the ground of sexual orientation and the ability of the legislature expressly to disapply the operation of the HRA [82]. The Strasbourg Court has repeatedly rejected arguments that article 9 of the Convention requires a contracting state to give legal recognition to a marriage contracted in a form which the law did not recognise [83]. The DPA therefore involves no breach by the United Kingdom of obligations on the international plane arising from adherence to the Convention [83-87].

The Board recognises that marriage is an institution with profound religious, ethical and cultural significance, that the historical background is one of the stigmatisation, denigration and victimisation of gay people, and that the restriction of marriage to opposite-sex couples may create among gay people a sense of exclusion and stigma [89]. There is force in the policy argument in favour of the recognition of same-sex marriage on the ground that it would accommodate diversity within society [89]. However, international instruments and other countries’ constitutions cannot be used to read into the Constitution a right to the legal recognition of same-sex marriage [90-94].

Ground three: discrimination according to creed

Section 12 of the Constitution prohibits discrimination according to creed. The Board holds that section 12 applies to discrimination against a person on the grounds of their system of beliefs, not a single belief [96]. Furthermore, the exclusion of same-sex couples from the institution of marriage is attributable not to their or their supporters’ description by creed but because they are of the same sex [95-97].

Lord Sales’ dissenting opinion

Lord Sales dissents on ground two. The fundamental difference between his view and the majority’s is his analysis of the nature of the respondents’ belief [100, 110]. The majority characterise the respondents’ belief as a “political belief” that same-sex unions should be legally recognised as marriage whereas, in Lord Sales’ opinion, the respondents’ beliefs are more fundamental, being concerned with how they themselves should live [119]. The respondents believe, as a deeply held matter of personal conscience, that if they wish to be in an intimate and committed relationship they have a religious or moral obligation to enter into marriage with their partner [100, 118]. Theircomplaint concerns an impermissible hindrance in the manifestation of their beliefs as to their own personal religious or ethical obligations, not a political belief about how the state should act [100-104, 117-118].

The state has a duty to be neutral between different religious and conscientious beliefs which individuals have, in order to afford them equal respect as citizens, ensure they are free to exercise their own ethical independence and so as to avoid the civic disparagement of vulnerable minorities, such as gay people [105]. Although the Strasbourg Court has concluded that the right to marriage in the Convention does not extend to same-sex couples, that is explained by the specific terms of the relevant provision of the Convention (which, in technical legal terminology, constitutes a governing “lex specialis” on the issue of marriage which refers to marriage between a man and a woman) [146-158]. The issue in the appeal is the interpretation of the Constitution. It  does not contain an equivalent “lex specialis” on marriage, so the issue of marriage has to be addressed under the general terms of section 8. A range of courts in other jurisdictions which, like Bermuda, have constitutions which do not contain a “lex specialis” governing marriage but have general provisions protecting individual rights have concluded that same-sex couples in modern society have a fundamental right to marriage equivalent to those of opposite-sex couples [159-165]. In Lord Sales’ view, the refusal by the state to allow or recognise same-sex marriage is contrary to the protection provided by section 8 of the Constitution, as it interferes with the ability of same-sex couples to act in accordance with their conscience and breaches the state’s duty of neutrality between different conscientious or religious beliefs [175, 182, 186-195]. In his view a right to marry for everyone is implicit in section 8 and, given the general language of section 8, that right cannot be interpreted as confined to opposite-sex couples [196-199].

References in square brackets are to paragraphs in the judgment

NOTE: This summary is provided to assist in understanding the Committee’s decision. It does not form part of the reasons for that decision. The full opinion of the Committee is the only authoritative document. Judgments are public documents and are available at: www.jcpc.uk/decided-cases/index.html

Chantelle Day and another (Appellants) v The Governor of the Cayman Islands and another (Respondents) (Cayman Islands)
[2022] UKPC 6

On appeal from the Court of Appeal of the Cayman Islands

JUSTICES: Lord Reed, Lord Hodge, Lady Arden, Lord Sales, Dame Victoria Sharp

BACKGROUND TO THE APPEAL

This appeal concerns whether the Cayman Islands Constitution (“the Constitution”) confers a constitutional right to legal recognition of same-sex marriages.

The appellants are in a committed relationship and wish to enter into a same-sex marriage recognised in law in the Cayman Islands. When they applied for the appropriate licence at the Cayman Islands General Registry in April 2018 they were refused a licence on the grounds that the Marriage Law in Cayman Islands defines marriage as “the union between a man and a woman as husband and wife”.

The appellants commenced judicial review proceedings and filed a constitutional petition claiming that: (i) the Bill of Rights, Freedoms and Responsibilities (“the Bill of Rights”) within the Constitution conferred on them a constitutional right to legal recognition of same-sex marriage; (ii) that the Marriage Law infringed their rights under the Bill of Rights; and (iii) that therefore the Marriage Law should be read in such a way as to give effect to their constitutional right to legal recognition for same-sex marriage.

The Bill of Rights is modelled on the scheme and the provisions of the European Convention on Human Rights (“the ECHR”) [11]. The sections of the Bill of Rights which the appellants contend protect their right to marry are section 9 (“Private and family life”), section 10 (“Conscience and religion”), section 14 (“Marriage”) and section 16 (“Non-discrimination”). Section 14(1) states that “[g]overnment shall respect the right of every unmarried man and woman of marriageable age… freely to marry a person of the opposite sex”.

The appellants’ claims were successful at first-instance in the Grand Court, however the Court of Appeal allowed an appeal by the Government of the Cayman Islands. The Court of Appeal held that the Bill of Rights did not confer a right on same-sex couples to marry and have their marriage recognised in law. The appellants appeal to the Judicial Committee of the Privy Council.

JUDGMENT

The Board dismisses the appeal. Lord Sales gives the judgment of the Board.

REASONS FOR THE JUDGMENT

In the context of the Bill of Rights, section 14 is the right which specifically deals with marriage (in technical legal terminology, the “lex specialis” which governs that topic) and that right is confined to opposite sex couples. The other sections of the Bill of Rights have to be interpreted in light of section 14(1), meaning that none of them can be construed as including a right for a same-sex couple to marry [32].

The Bill of Rights is a specific legal instrument which must be interpreted in its particular context and as a coherent, internally consistent whole [33], [38]. The right to marry in section 14(1) has been drafted specifically to make it clear that it applies only to opposite-sex marriage [39]. Within the scheme of the Bill of Rights section 14(1), as the “lex specialis”, defines who has a constitutional right to marriage, and therefore other general provisions in sections 9, 10 and 16 cannot be interpreted to circumvent the express limits on the right to marry in section 14(1) [40]. To do so would be to undermine the coherence of the Bill of Rights [41].

The Board’s interpretation is supported by the case law regarding the interpretation of the ECHR [45]-[50]. In various cases, the European Court of Human Rights has found that article 12 of the ECHR (the equivalent “lex specialis” on marriage in the ECHR) was determinative of the scope of the right to marry and was limited to the traditional concept of marriage as being between a man and a woman. The other more general provisions in the ECHR, equivalent to those in the Bill of Rights, therefore had to be interpreted in the light of that and accordingly could not be read so as to extend to provide a right to same-sex marriage.

The Board points out that the interpretation given to the Bill of Rights in its judgment does not prevent the Cayman Islands’ Legislative Assembly from introducing legislation to recognise same-sex marriage. The effect of the Board’s interpretation is that this is a matter of choice for the Legislative Assembly rather than a right laid down in the Constitution [59].

References in square brackets are to paragraphs in the judgment

NOTE: This summary is provided to assist in understanding the Committee’s decision. It does not form part of the reasons for that decision. The full opinion of the Committee is the only authoritative document. Judgments are public documents and are available at: www.jcpc.uk/decided-cases/index.html