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British appeals court blocks same-sex marriage for Bermuda, Cayman Islands

The pride flag flies next to European flags in front of European council headquarters in Brussels, Belgium, in May 2017. File Photo by Olivier Hoslet/EPA
The pride flag flies next to European flags in front of European council headquarters in Brussels, Belgium, in May 2017. File Photo by Olivier Hoslet/EPA

March 14 (UPI) -- A top appeals court in Britain on Monday blocked same-sex marriage in Bermuda and the Cayman Islands after siding with the governments of the two self-governing overseas territories in two landmark rulings.

The Cayman Islands case stems from two women, Chantelle Day and Vickie Bodden Bush, who were refused an application to marry in 2018 because local marriage law defined marriage as "the union between a man and a woman as husband and wife," according to court documents.

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Day and Bush successfully sued the government in a case heard before Chief Justice Anthony Smellie on the grounds that the marriage law conflicted with the Cayman Islands Constitution.

The Grand Court of the Cayman Islands found that the law violated the rights of Day and Bush to private and family life and their freedoms including the freedom to manifest their belief in marriage, according to court documents. The Grand Court then modified the marriage law to define "marriage" as "the union between two people as one another's spouses."

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However, the case was successfully appealed by the government to the Court of Appeal of the Cayman Islands, which ruled that the right to marriage under the constitution did not extend to same-sex couples but that Day and Bush were entitled to legal protection functionally equivalent to marriage.

Bush and Day then appealed to the Judicial Committee of the Privy Council in London, which serves as the final appeals court for Bermuda and the Cayman Islands despite the fact they are administered as their own nations.

However, the couple could still appeal to the European Court of Human Rights in Strasbourg, France.

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"The right to marry in section 14(1) of the Bill of Rights has been drafted in highly specific terms to make it clear that it is a right "freely to marry a person of the opposite sex,'" the Privy Council wrote in its unanimous judgment.

"It is obvious that this language has been used to emphasize the limited ambit of the right and to ensure that it could not be read as capable of covering same-sex marriage."

The Privy Council ruled that the interpretations of other stipulations in the Constitution cannot circumvent the explicit limit on marriage established in the Bill of Rights.

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However, the Privy Council noted that its interpretation of the Bill of Rights in the judgment does not prevent the legislative assembly in the Cayman Islands from passing laws that recognize same-sex marriage.

"The effect of the interpretation endorsed by the Board is that this is a matter for the choice of the Legislative Assembly rather than a right laid down in the Constitution," the Privy Council wrote in its judgment.

The Bermuda case came after the Bermudian Parliament passed a law in 2018 voiding same-sex marriages but allowing for same-sex couples to enter domestic partnerships, according to court documents.

The law was challenged to the Supreme Court of Bermuda by a series of people affected by it, including a Bermudian LGBTQ+ charity on the grounds that the provision revoking same-sex marriage went against the constitution of Bermuda.

The Supreme Court ruled that the provision did contradict the Bermudian constitution but case was appealed by the attorney general to the Court of Appeal of Bermuda, which upheld most of the Supreme Court's ruling.

The attorney general then appealed the case to the Privy Council, which struck down the rulings of the two lower courts in a 4-1 decision with Lord Phillip Sales dissenting.

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The Bermuda case largely revolved around the religious belief in the right to same-sex marriage, with the Privy Council ruling that the legislation does not prevent people from holding such a belief but that the government is not required to provide for such a legal right under existing law.

"[The law] does not prevent a church or other religious body from carrying out a marriage ceremony for a same-sex couple and giving recognition to such a marriage as a matter of religious practice within their faith community," the Privy Council wrote.

"The protection of a 'practice' does not extend to a requirement that the state give legal recognition to a marriage celebrated in accordance with that practice."

The Privy Council then made a series of comparisons, including that "the protection of a belief in the right to life does not compel the state to ban all forms of abortion ... just as the protection of a belief in communism does not require the state to adopt a particular form of government."

"In making those comparisons, the Board does not seek to diminish or understate the importance of marriage as a fundamental social institution or the value of social recognition of committed and loving relationships," the judges wrote.

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Ben Tonner, an attorney for the couple in the Cayman Islands case, told the Cayman Compass that they are "extremely disappointed with the Privy Council's judgment issued earlier today."

"Were it not for their courage in standing up for their rights, and the rights of many others, there would still be no legal framework for the recognition of same-sex couples in the Cayman Islands [allowed under the Civil Partnership Act]," Tonner said.

"Their strength and bravery throughout these proceedings has been truly inspirational."

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