In Taiwan this week, the Constitutional Court of the Republic of China voted overwhelmingly that same-sex couples are entitled to marry and that anti-gay discrimination violates the Republic’s Constitution.
The May 24 ruling was greeted with relative equanimity by legislative leaders, who were ordered by the court to implement this decision by May 24, 2019. Otherwise, the court said, the decision would go into effect automatically, and same-sex couples would be entitled to marry.
Only two justices dissented and one abstained in a court that press reports alternately say includes 14 or 15 members.
High court, by lopsided margin, orders change in law, bars discrimination
This was the first ruling by an Asian high court to accept marriage equality as a constitutional right, although there might be political and ideological arguments about Taiwan’s significance in relation to the rest of Asia. The Peoples’ Republic of China considers Taiwan to be part of its nation that is just temporarily self-governing, and most countries do not recognize it as an independent nation.
Still, there is no disputing that when this ruling goes into effect, Taiwan will be the first place where same-sex marriages can be performed in Asia with the imprimatur of legally recognized status.
The opinion was released only in Chinese, but the court simultaneously issued an English-language press release summarizing the ruling in detail.
The court was responding to petitions from LGBTQ rights activist Chia-Wei Chi and the Taipei city government, seeking a definitive ruling on whether the freedom to marry, protected by the Constitution, was limited by family law provisions of the civil code, which defines marriage as exclusively a different-sex institution.
The court also had to confront the question whether excluding same-sex couples from marriage violated the “people’s right to equality” guaranteed by the Constitution.
The court found that both constitutional guarantees — the right to marry and the right to equality –– were violated by the ban on same-sex marriage.
The court observed that the petitioner, Chia-Wei Chi, has been waging a campaign for same-sex marriage for more than 30 years. Although some progress had been made in getting the legislature to consider the issue, after more than 10 years of bills being introduced and debated, nothing has been brought to a vote. The court expressed concern about the frustration created by such a protracted legislative stalemate.
“The representative body is to enact or revise the relevant laws in due time,” said the court. “Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights. It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of peoples’ constitutional rights and the free democratic constitutional order.”
The court said that the freedom to marry extends both to deciding whether to marry and whom to marry.
“Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right,” the judges found.
The court insisted that allowing same-sex couples to marry would not “alter the social order established upon the existing opposite-sex marriage.” The court said that the failure of current law to allow same-sex couples to marry “is obviously a gross legislative flaw” and that the current provisions “are incompatible with the spirit and meaning of the freedom of marriage as protected” by the Constitution.
Moving to the equality issue, the court addressed the problem that the Taiwan Constitution’s Article 7, unlike the United States’ equal protection clause, itemizes protected categories, explicitly requiring equality “irrespective of sex, religion, class, or party affiliation,” but the court did not see this list as a barrier to protecting equality for gay people (or, it added, people with disabilities). The judges said the classifications listed in Article 7 “are only exemplified, neither enumerated nor exhausted.” The court saw sexual orientation as a classification governed by the same equality principle.
“Sexual orientation is an immutable characteristic that is resistant to change,” wrote the court. “The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment. Major medical associations have stated that homosexuality is not a disease. In our country, homosexuals were once denied by social tradition and custom in the past. As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination… Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process. Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.”
This appears to be the equivalent of the US legal concept of a “suspect classification” — a basis for discrimination that is not allowed without a good justification.
The court rejected any idea that reproductive capacity has anything to do with the freedom to marry, pointing out that different-sex couples may marry even if they cannnot have children. “Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis,” wrote the court.
Without being able to read the original Chinese text, it is hard to assess whether the ruling leaves much leeway to the legislature to consider alternatives to true marriage equality. The clear implication of the Taiwan ruling’s English summary, however, is that same-sex marriages would have to include all the usual legal rights accompanying opposite-sex marriages to meet the equality test the court embraced.
The local English-language press in Taiwan reported that none of the major parties responded with opposition to the ruling, which was quickly embraced by Premier Lin Chuan, who ordered coordination among government agencies to draft a legislative proposal in response.