Maurice's barbaric YAWP

Searching For A Simple Word: Taiwan’s Constitutional Court Hears the Case of Marriage Equality for Same-Sex Couples in March

Hong-Cheng Chang（張宏誠）

For the very first time in Asia, Taiwan’s Constitutional Court (“the Grand Justices of the Judicial Yuan”) announced yesterday that it is going to hear the oral arguments in the two joined cases on marriage equality for same-sex couples, scheduled in the end of March. There are four questions before the bench: 1) Are same-sex couples allowed to get married under the current law?; 2) If not, is the current law unconstitutional on ground of infringing the Right to Marry under Article 22 of the Constitution?; 3) Alternatively, is the current law contrary to Equal Protection under Article 7 of the Constitution?; and 4) Are institutions other than marriage, for example same-sex partnership, adequate to protect rights of same-sex couples, in a manner consistent with the constitutional provisions on equal protection and the right to marry? The Court is obligated to deliver its ruling (“the Constitutional Interpretation”) within two months after the conclusion of oral pleadings. In that case that the current law is found unconstitutional by the Court, by May 2017, Taiwan will probably become the first country in Asia that provides a legal means in protecting the equal right to marry of same-sex couples.

Lesbians and gay men in Taiwan have gone through a long journey before courts to find justice and equality for their partnership. One of the Applicants in the above cases under hearing, Jia-Wei Qi, is a veteran gay rights activist and received the 1st Queermosa Awards for his activism. In the early 90s Qi was the first openly come-out gay man and the first person to bring his case before courts to fight for the equal right to marry in Taiwan, only to see his case thrown out by the Constitutional Court 16 years ago. Nevertheless Qi keeps fighting for gay rights, all alone and with little assistance from lawyers or organizations. Over the years the image of Qi, standing alone with a flying rainbow flag, has been a hallmark of the annual gay parade in Taiwan. It seems to have taken a whole life for him, knocking on the door of the Marble Palace, and now finally to have a chance to stand before its 15 Justices, as a gay man, to earn the full respect promised by the Constitution.

To earn legal protection, the marriage equality movement has tried literally every possible approach. In this sense, Taiwan has been a laboratory on this issue. As mentioned earlier, first came the judicial approach, followed by attempts in 2001 and 2006 to amend the law by the legislature, after the first ever change of government. The legislative approach came back again, led by Congresswoman Mei-Nu Yiu since 2013, attracting nationwide attention in 2016. The local governments opened up channels of symbolic household registrations to same-sex couples in 2015, offering minimum administrative recognition. Initiatives from the opposition side also tried to bring in national referendum during the course of parliamentary election in 2016, with no success. Recently at the end of 2016, the bill to amend the definition of marriage in the Civil Code passed the first reading in the Parliament. However, this did not resolve the fierce controversies between opposite sides. At a moment when the Taiwanese society is still healing from discrimination and hatred vented in the latest round, the involvement of the Constitutional Court could be the silver lining shed on the cloud. The only question is its timing.

Currently the Marriage Equality Bill is pending for the second reading in the Parliament, which means it may become law in April 2017, as expected by its parliamentary proponents. Is it legitimate for the Court to intervene at this juncture, perhaps overtaking the Parliament, which is democratically elected? The concerns raised by the involvement of the Court was also cited in Chief Justice John Roberts’ dissent in Obergefell 2015, to the majority opinion of the US Supreme Court. Approaches to marriage equality depend on social structures and cultural valuation of marriage and family, legal cultural on litigation, and the functional development of democracy. With only three countries in the world – namely South Africa, Canada and the United States – arrived at marriage equality via judicature, is Taiwan ready for 15 Justices in the Constitutional Court to decide this most controversial issue?

The Constitutional Court in Taiwan, which will celebrate its 70^th anniversary in 2018, is the earliest institution in Asia established to exercise judicial review. The Court has played an important role in development of democratization, rule of law and human rights protection in Taiwan. With the involvement of the Court, the society will have the opportunity to discuss the issue of marriage equality for same-sex couples from the perspective of the constitutional law. The pro and con opinions can have a constitutional forum to argue against each other, and the final decision of the Court, no matter what it is, will be based on in-depth theories and reasoning. In any event, even if the Bill was in the end passed by the legislature, the opposition groups will still bring the case to the Court for the last word. In the meantime more and more same-sex couples will suffer for lack of legal protection, while tragedies happening day by day. Like Qi, and any lesbian and gay man elsewhere, same-sex couples in Taiwan spend their whole lives to search for just one simple word: equality. The Court has no better timing to show her responsibilities to the Constitution and the People.

The author is the adjunct lecturer at National Taiwan University of Science and Technology.

Published on Taipei Times, Sun, Feb 12, 2017 - Page 6 : Marriage equality and the court