The 2nd US Circuit Court of Appeals recently found in favor of New York resident Edith Windsor in a case over federal government inheritance tax, ruling that the Defense of Marriage Act (DOMA) violates the US Constitution’s equal protection clause.
Windsor had been in a relationship with her partner, Thea Spyer, for more than 40 years. The couple registered their marriage in Canada, where same-sex marriage is legally recognized, in 2007. In 1997, the federal government passed the DOMA, legislation that defines marriage as the legal union of a man and woman, ensuring the continued existence of the gulf between the rights enjoyed by same-sex couples and those between heterosexual couples. Spyer passed away in 2009, and when Windsor tried to gain access to her long-term partner’s inheritance, she was hit with an inheritance tax bill of US$363,053, more than she would have paid had their marriage been recognized in federal law.
Same-sex couples are also denied the same rights as “normal” couples regarding health insurance, tax credits and social welfare.
In Taiwan, a homosexual couple, after being turned away when trying to register their marriage in court in 2000, took the issue to the Council of Grand Justices, but the case was not heard because the Judicial Yuan said it did not qualify for appeal. The general consensus among the judiciary in Taiwan is that the law does not currently recognize same-sex marriages, and until it does, nothing will change. It is not up to the judiciary to make the law.
The US Circuit Court of Appeals took a strict position on the Windsor case because it recognized that homosexuals, as a group, have suffered discrimination for a long time. Therefore, the US government, as the defendant in this case, had to prove that its policies did not result in discrimination against anyone on the basis of sexual orientation. This is very different from past litigation in which the burden of proof was on the plaintiff to show that he or she had experienced discrimination.
Since 2008, there has been some debate on same-sex marriage in Taiwan. Nowadays, family structure is more heterogenous than ever, going far beyond the traditional, legally recognized concept of the nuclear family. We now have, for example, co-habiting heterosexual couples, homosexual partners in stable, long-term relationships who would like to get married but who are unable to do so legally, or good friends living together and looking out for each other. Even though the rights of people in a partnership are not necessarily compromised at the outset by the lack of legal recognition of their relationship, it is not hard to imagine that they will come up against problems as a result of this lack of recognition as they live their lives together.
The next step for the gay rights and gender equality movement is to push for new ways of defining partnerships, whether by incorporating same-sex marriages within the traditional marriage format or establishing a new system of partnerships with guaranteed rights. Three possible models could be same-sex marriage; a partnership system with no restrictions on gender or sexual orientation; or partnerships with more than two partners.
Last weekend, Taipei hosted a gay pride parade. The main theme was marriage reform, to reflect diversity in partnerships and to seek equal rights. Here we have civil groups taking steps to ask for government policy to be changed on issues they are concerned about, trying to open up dialogue with the rest of society. Will the various branches of government in Taiwan, the executive, judicial and legislative organs, listen?
Tsai Chi-hsun is secretary-general of the Taiwan Association for Human Rights.
Translated by Paul Cooper
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