Taiwan witnessed history on May 24 as the Council of Grand Justices issued Constitutional Interpretation No. 748, declaring it unconstitutional to deny same-sex couples the right to marry on the basis of the Civil Code.
This was a milestone in the nation’s gay rights movement, and the decision will change many people’s lives.
The landmark ruling handed a long-deserved victory to the nation’s lesbian, gay, bisexual and transgender (LGBT) people, who have fought for equal rights since the mid-1980s. Hundreds of LGBT people cheered, hugged and even wept at a rally when the ruling was announced. To them, it must have felt like a breath of fresh air.
“Taiwan has just enacted true gender equality,” gay rights pioneer Chi Chia-wei (祁家威) later told the media. “It means I can die without regret,” the petitioner for the constitutional interpretation said.
Chi praised the dedication of the LGBT community while encouraging supporters to forgive and keep communicating with the opponents of same-sex marriage.
The constitutional ruling paves the way for the legalization of same-sex marriage. On the high ground of human rights, the grand justices declared that the Civil Code’s denial of such unions is in violation of both people’s “right to equality” as guaranteed by Article 7 of the Constitution and “freedom of marriage” as protected by Article 22.
“All citizens of the Republic of China, irrespective of sex, religion, race, class or party affiliation shall be equal before the law,” Article 7 says.
The justices said that the five classifications of impermissible discrimination set forth in the article are only exemplified, not enumerated nor exhaustive.
“Therefore, different treatment based on other classifications, such as sexual orientation, shall also be governed by the right to equality,” the ruling said.
The justices also said that people eligible to marry have the freedom to do so, including the freedom to decide 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 to be protected by Article 22,” the ruling said.
Specifically, it said that this will not affect heterosexuals’ marriage rights, nor will it disrupt social order established upon the existing marriage system.
Rather, same-sex marriage will “constitute the collective basis, together with opposite-sex marriage, for a stable society,” the ruling said.
Yet when the announcement was made, some protesters did not agree. “Unfair procedure! Invalid interpretation!” they shouted outside the Judicial Yuan.
While threatening to make another referendum attempt on the issue, they argued that since the grand justices were not elected by the public, they should not have the power to make the decision in place of the Legislative Yuan.
However, this exposed their ignorance of the Constitution — the highest level of law, above the Referendum Act (公投法) — not to mention the rejection last year of their referendum bid by the Referendum Review Committee with an embarrassing 10-to-one vote.
Meanwhile, the ruling is expected to accelerate the legislative process and improve the overall social attitude toward LGBT people.
First, the ruling said that the authorities must amend or enact relevant laws within two years. If they fail to do so, same-sex couples will be allowed to have their marriages effectuated directly at household registration offices.
This clever design was made to prevent the legislature from technically delaying the legislative process for years.
After repeatedly blocking the draft bill on marriage equality, Democratic Progressive Party caucus whip Ker Chien-ming (柯建銘) will be pressured by the deadline to put the draft act on the legislative agenda for further review.
Next, opponents often claim that society would collapse once same-sex marriage is legalized, but this is not true.
Taking the US as an example, many studies have found that since the legalization of same-sex marriage in 2015, people’s attitudes toward LGBT people have evolved. Therefore, the significance of the decision is to unite a society, not divide it.
The ruling was a victory for not only the LGBT community, but also for Taiwanese, including opponents of the decision, because their children and future generations will also have the freedom to enjoy marriage equality in Taiwan — where everyone is equal before the Constitution, whether you are straight or gay.
As the nation is soon to become the first in Asia to legalize same-sex marriage, the ruling is just the beginning, rather than an end. Taiwanese should celebrate this historic moment and work together to create a more equal and better nation.
Eddy Chang is an assistant professor in the department of English at Shih Hsin University.
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