Maurice's barbaric YAWP

The Field Theory of Law and LGBTI Rights:

Comment and Reply to Same-Sex Marriage and Family in France and Japan

Hong-Cheng Chang*

2019.10.24

IIAS, Academia Sinica, Taipei

In this panel discussion, Madam Caroline Mécary and Professor Masahiro Sogabe show us respectively, the legislative development of equal protection on same-sex marriage and family in France, and social, political and legal background of promoting equality of same-sex marriage and family in Japan. Professor Sogabe also points out the current cases on group litigation fighting for marriage equality of same-sex couples, in particular from the perspective of constitutional law. Both of them help us to understand the sweetness and bitterness of marriage equality for same-sex couples, and the task has never been an easy one.

With the globalization of legal norms on marriage equality of same-sex couple and equal protection of same-sex family, we find the common necessities and varieties. To explain these trends, there are three approaches to put different focus on researches: to understand the international networks on promotion of LGBTI rights and marriage equality by focusing on the international relations; to develop concepts and ideas of equality for LGBTI couples and parents by theoretical perspective; and to develop theories and analyse its institutional implementation on same-sex marriage and family. In this two-days conference all of three approaches are taking into account, and in this panel two speakers make contributions on the last approach. However, there are stories untold.

For the legal field of marriage equality to same-sex couples, in terms of Pierre Bourdieu, I wonder who acts as agents to pro and con to the ideal of LGBTI equality in this “football game,” what kind of rules, so-called “habitus,” in this game to be set up and changed and how they succeed or failed. In particular for Madam Mécary, as a “cause lawyer, ”the reasons and “capitals” she devoted herself in litigations to same-sex marriage and family are the most attractive stories to me. It’s her stories to show us the way to learn lessons, without taking the disadvantageous road, and to create similar or better stories in other countries.

In her speech, Madam Mécary introduces us very briefly the historic development of equal protection on same-sex marriage and family. However, in her story, we can only see few politicians showing up but without any dialogue. We cannot imagine how the story begins and is there any actor or actress playing together with her. In Bourdieuian term, we do not see “agents” to show us how they communicate each other under what kind of habitus, in French way. Shameless Madam Mécary told us a story without any role, even herself. If possible I would like to see a story by a leading actress of Madam Mécary.

Professor Sogabe also tells us a story without actor and actress. However, he shows us the “rules” of a baseball game playing now in Japanese courtrooms. We learn the rules are very strict for same-sex couples. The players against same-sex couples have strong support from the audience. And the referees are taking side of majority. His institutional analyses indeed reminds us the importance of the “field” of law and how difficult for same-sex couples in Japan to win their game. I would also like to learn from Professor Sogabe, under the homogeneity of Japanese society, the judicial culture of Supreme Court and conservative political parties and politicians, how he estimates the result of marriage equality cases in Japan.

At this moment, same-sex couples in Taiwan seem to live with a happy ending after the J.Y. Interpretation No. 748 of the Constitutional Court and in the “Article 2 relationship” under the Act for Implementation of J.Y. Interpretation No. 748. However, they are still in struggle with their foreign partners and making their family complete with second-parent and joint adoption, and for gay spouses to surrogacy. The true is the new field of law without changing “habitus” will never end up a whole new world.

The French football term has to shot more balls, so well as our baseball players in Taiwan to make a home-run.

But the question is: what can we do ?