The Judicial Committee of the Privy Council, constitutional interpretation, and the right to same-sex marriage

Abstract

Abstract The recent judgments of the Judicial Committee of the Privy Council (JCPC) in Day and Another v. Government of the Cayman Islands, and Attorney General for Bermuda v. Ferguson and Others, upholding the constitutionality of laws limiting marriage to opposite-sex couples in Bermuda and the Cayman Islands, respectively, have disrupted a consensus that had been emerging amongst constitutional courts in the common law world that such laws were unconstitutional. This article critiques the JCPC’s justifications for distancing itself from this consensus and instead aligning itself with the much-criticized jurisprudence of the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee (UNHRC) on the issue of same-sex marriage. It will be argued that the JCPC’s decisions were based on a narrowly textual interpretation of the respective constitutions and failed to take account of the impact of the ban on same-sex marriage on the gay and lesbian communities in each jurisdiction. It will further be argued that the JCPC relied too heavily on the jurisprudence of the ECtHR and UNHRC at the expense of foundational principles such as liberty and equality. The article also considers the consequences of these decisions for the other countries over which the JCPC continues to exercise jurisdiction and which prohibit same-sex marriage, as well as for the other countries whose courts continue to be influenced by the jurisprudence of the JCPC even though it is no longer their final appellate court.