The Council of Grand Justices on Friday announced that it is going to hear the oral arguments in two joined cases on marriage equality for same-sex couples, scheduled for the end of next month.
There are four questions before the bench:
No. 1: Are same-sex couples allowed to get married under the current law?
No. 2: If not, does the current law infringe the Right to Marry statute under Article 22 of the Constitution and is it therefore unconstitutional?
No. 3: Alternatively, is the current law contrary to Equal Protection under Article 7 of the Constitution?
No. 4: Are institutions other than marriage, like same-sex partnership, adequate to protect the rights of same-sex couples in a manner consistent with the aforementioned provisions on equal protection and the right to marry?
The court is obligated to deliver its ruling — a constitutional interpretation — within two months after the conclusion of oral pleadings. If the current law is found unconstitutional, by May, Taiwan will probably become the first country in Asia to provide legal means to protect marriage equality.
Lesbian and gay people in Taiwan have gone through a long judicial journey to find justice and equality for their partnerships.
One of the applicants in the cases, Chi Chia-wei (祁家威), is a veteran gay rights advocate and received the first Queermosa Award for his activism. In the early ’90s, Chi was the first openly gay man — and the first person — to bring his case before courts to fight for marriage equality in Taiwan, only to see his case thrown out by the Coucil of Grand Justices 16 years ago.
Nevertheless, Chi keeps fighting for gay rights with little assistance from lawyers or organizations. The image of Chi, standing alone with a flying rainbow flag, has been a hallmark of the annual pride parade. It seems to have taken him a lifetime of knocking on the Marble Palace door to finally have a chance to stand before its 15 Justices and earn the full respect promised by the Constitution.
To earn legal protection, the marriage equality movement has tried every possible approach. First came the judicial approach, followed by attempts in 2001 and 2006 after the first-ever change of government to amend the law through the legislature. This approach came back again in 2013, led by Legislator Yu Mei-nu (尤美女), and attracted national attention last year. Local governments offered symbolic household registration to same-sex couples in 2015, the minimum level of administrative recognition.
The opposition also tried to propose a national referendum during the course of the legislative elections last year, with no success.
At the end of last year, a bill to amend the definition of marriage in the Civil Code passed its first reading in the legislature. However, this did not resolve the fierce controversy between opposing sides. At a moment when Taiwanese society is still healing from the discrimination and hatred vented during the latest round of attempted reform, the involvement of the Council of Grand Justices could be this cloud’s silver lining. The only question is its timing.
Currently, the marriage equality bill is pending for its second reading in the legislature, which means it might become law in April, as expected by its legislative proponents. Is it legitimate for the court to intervene at this juncture, perhaps overtaking the democratically elected legislature?
Concerns about the court’s involvement were also raised in US Supreme Court Chief Justice John Roberts’ dissent to the majority opinion in Obergefell v Hodges in 2015. Approaches to marriage equality depend on social structures and cultural valuation of marriage and family, the legal culture on litigation and the functional development of democracy. With only three countries in the world — South Africa, Canada and the US — having arrived at marriage equality via judicature, is Taiwan ready for the Council of Grand Justice’s 15 justices to decide this controversial issue?
The Council of Grand Justices, which will celebrate its 70th anniversary next year, is the earliest institution in Asia established to exercise judicial review. The court has played an important role in the development of democratization, rule of law and human rights protections.
With the court’s involvement, society will have the opportunity to discuss marriage equality from the perspective of constitutional law. The pro and con opinions can have a constitutional forum to argue against one another, and the final decision of the court, no matter what it is, will be based on in-depth theory and reasoning.
In any event, even if the bill is ultimately passed by the legislature, opposition groups would still bring the case to the court for the last word. In the meantime, more and more same-sex couples would suffer without legal protection, with tragedies happening daily.
Same-sex couples in Taiwan spend their whole lives searching for just one simple word: Equality. The court has no better timing to show its responsibility to the Constitution and the people.
Chang Hong-cheng is an adjunct lecturer at the National Taiwan University of Science and Technology.
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