Wed, Feb 13, 2019 - Page 8 News List

Gay unions must be treated equally

Moreover, the coalition has claimed that marriage and a union for the purpose of living together are separated in the interpretation, with the former ruled by the Civil Code, while the latter should be governed by a special law. This is a vicious distortion.

The council offered an explanation when considering legislative idleness in its reasoning, saying: “If the amendment or enactment of relevant laws is not completed within the said two-year time frame, two persons of the same sex who intend to create a permanent union of intimate and exclusive nature for the purpose of living a common life may, pursuant to the provisions of the Marriage Chapter, apply for marriage registration to the authorities in charge of household registration, by submitting a document signed by two or more witnesses. Any such two persons, once registered, shall be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.”

If this is not marriage, then what is?

The coalition should stop spreading erroneous legal opinions based on fragments of the interpretation taken out of context. Regardless of whether the Civil Code is amended or a special law is written, same-sex marriage must be marriage, and not same-sex cohabitation or partnership.

The second point is that the executive and legislative branches should abide by the interpretation issued by the council, because they are obliged to be loyal to the Constitution. Winning or losing elections is part of the normalcy in democratic societies, but if that changes and support for the constitutional system is abandoned, democracy loses its meaning.

As the Judicial Yuan said in a statement after the vote: “The referendums were merely a vote on the legal level, it must not contravene the Judicial Yuan’s interpretations of the Constitution.”

The outcome of the referendum at most makes the scope of legislation more concrete and it cannot override the equal protection of marriage freedom granted to homosexuals by Constitutional Interpretation No. 748. Otherwise, the commission would not have had to order the coalition to adjust its referendum proposal in the first place. As the proposal must abide by the Constitution, so must the interpretation of the outcome.

Even if the government really was to choose to write a special law for homosexuals instead of amending the Civil Code, it would still have to protect their right to marriage freedom. For the sake of equal protection, all rights and obligations in the special law must be the same as those in the Civil Code. Authorities must not create another system than marriage that treats homosexuals differently by treating them as second-class citizens in contravention of the Constitution.

The authors are professors at Academia Sinica’s Institutum Iurisprudentiae, National Chengchi University’s Department of Law, National Taipei University’s Department of Law, National Taiwan University’s Department of Law, National Taiwan University’s Graduate Institute of National Development and Shih Hsin University’s Graduate Institute for Gender Studies.

Translated by Eddy Chang

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