For the past half year, the Legislative Yuan has been the site of the struggle for marriage equality in Taiwan. Led by DPP legislator Yu Mei-nu, KMT legislator Jason Hsu, and the NPP, the bills legalizing same-sex marriage passed the first reading, was subsequently put on hold for hearings, and ultimately came out of the Judiciary and Organic Laws and Statutes Committee after compromises by proponents. The proposed amendments are now awaiting further capitulation by the DPP in the cross-party caucus consultations during which the KMT top brass have vowed to obstruct the bills.
Meanwhile, the battlefield moved less than a mile south to the Judicial Yuan, where the Constitutional Court held oral arguments on marriage equality on Friday. The Justices sought the opinions of government ministries, experts, and plaintiffs Chi Chia-wei and the Taipei City Government to assist them in deciding the following questions:
Whether the Civil Code provisions concerning marriage allow two people of the same sex to establish a marital relationship?
If the answer is no, do these provisions violate the Constitution which guarantees the freedom of marriage?
Do these provisions violate the Constitution which intends to guarantee the equality of people?
If the legislature establishes a system other than marriage, such as civil partnerships, will the establishment of such a system comply with the provisions in the Constitution guaranteeing equality and freedom of marriage respectively?
As the arguments by both sides have been repeated ad nauseam, nothing particularly new was expected during the oral arguments. Nonetheless, the forceful attempt by Minister of Justice Chiu Tai-san to defend the current law that prohibits same-sex marriage was still somewhat of a surprise. The thrust of Chiu’s argument was that allowing same-sex couples to marry would disrupt the tradition of heterosexual marriages, which apparently goes back thousands of years – he even cited the classical text I Ching to bolster his argument – and will lead to confusion on many issues, including how deceased parents would be referred to on ancestral tablets.
Chiu’s performance forced the Ministry of Justice to issue a press release clarifying that it is still open to various avenues of attaining rights for same-sex couples and obliged premier Lin Chuan to deny that Chiu’s words represent the Executive Yuan’s position on same-sex marriage. On the other hand, the presidential office, occupied by President Tsai Ing-wen for whom many young people voted due to her purported support of marriage equality, declined to comment.
It is unknown whether Chiu consulted the President or the Executive Yuan prior to the oral arguments, but there are only two possible scenarios here. In the first scenario, he discussed his testimony with the presidential office and the Executive Yuan and they gave him the go ahead. In the alternative, he did not speak to them, and neither the presidential office nor the Executive Yuan had the forethought to vet his arguments to ensure that they would not be an embarrassment to the government that still claims to support marriage equality. Both scenarios are unacceptable to marriage equality supporters and may be indicative of a dysfunctional government that fails to understand the real-life consequences of its ineptitude and passiveness
The Constitutional Court must issue an opinion within two months of the end of oral arguments – it is required to set a date for the release within one month, and that date must be within one month of the setting – but it is still uncertain when an interpretation will be released as the Court can always order further arguments. For decisions to be made, two-thirds of the 15-member Court must agree. Here, only 14 Justices are involved due to the recusal of Legislator Yu’s husband Huang Jui-ming who was appointed to an eight-year term on the Court by President Tsai late last year.
Despite the high likelihood that the Justices will find the current marriage laws unconstitutional – otherwise their decision to accept the cases would be curious – the action will still return to the Legislative Yuan as it would be doubtful the Court would order the current law to be interpreted, without amendment, to allow same-sex marriages. If the Court were to find that only equal access to marriage for everyone would be constitutional, then the Legislative Yuan’s mandate to amend the law would be straightforward, though opponents would probably still resort to delaying tactics. However, if the Court were to find that a civil partnership system would be a constitutionally suitable alternative to marriage for same-sex couples – the separate but equal regime touted by Minister Chiu – then detractors would have ample ammunition to oppose marriage equality bills in the legislature. Regardless of the Constitutional Court’s decision, the struggle for marriage equality will likely drag on for months, if not years, to come.
About the author
M. Bob Kao is a California lawyer and PhD Candidate at the Centre for Commercial Law Studies, Queen Mary University of London.