Tue, May 14, 2019 - Page 8 News List

Blind justice leads to marriage equality

By Chen Yi-chien 陳宜倩

Democratic Progressive Party (DPP) Legislator Lin Tai-hua (林岱樺) has proposed a draft titled the “enforcement act of Judicial Yuan Constitutional Interpretation No. 748 and Referendum No. 12.” Her title combines the names of the Cabinet’s and Chinese Nationalist Party (KMT) Legislator Lai Shyh-bao’s (賴士葆) drafts, and Lin has said that her draft takes an “eclectic” stance on same-sex unions.

However, reading Lin’s bill is infuriating, as it displays blatant discrimination against same-sex couples. It contravenes constitutional protections for freedom and equality, and is the most vicious of the three drafts and the farthest from marriage equality.

When lawmakers create a law, they must keep the promise held out by a constitutional state of equal protection for every citizen. Constitutional Interpretation No. 748 says: “It is within the discretion of the authorities concerned to determine the formality for achieving the equal protection of the freedom of marriage.” This means that legislative cross-party negotiations must comply with the Constitution. If a draft is unconstitutional, it should not reach the negotiation table, but should be promptly excluded.

Not getting same-sex marriage legislation passed by the deadline on Friday next week would have no effect on the existing marriage rights of opposite-sex couples. The cross-party talks are meant to decide the rights of same-sex couples and the form of those rights.

Comprehending what is taking place is unbearable. Can the fundamental rights of a minority truly be reduced or negotiated by other people?

The target of the constitutional interpretation is clear: “This case concerns the social and political issues of whether homosexuals shall have the autonomy to choose whom to marry, and of whether they shall enjoy the equal protection of the same freedom of marriage as heterosexuals.”

The interpretation says that the Civil Code’s failure to offer equal protection of marriage freedom for same-sex couples is unconstitutional, so it is unthinkable that a non-marital option that treats same-sex couples unequally could be added to the cross-party talks.

Rather than seeking harmony, Lin’s bill is strongly discriminatory: First, it questions the love and union of same-sex couples; second, it does not allow same-sex couples to be defined as parents.

The bill contains a “fake marriage clause.” As same-sex marriage does not contribute to procreating the next generation, it says that people with “unclear or undecided sexual orientation and even heterosexuals” must be prevented from simply “trying out” same-sex marriage after the act takes effect. The bill prohibits same-sex couples from marrying unless they create a permanent union of an intimate and exclusive nature for the purpose of living a shared life.

None of the employees responsible for marriage documentation at household registration offices can detect whether opposite-sex couples registering a marriage can procreate, or whether they are truly heterosexuals. If an opposite-sex couple entered into a marriage to get a tax rebate, obtain a visa or receive a subsidy, they would not necessarily produce children, but lawmakers only seek to apply the “fake marriage clause” to same-sex couples, revealing typical discrimination against sexual orientation.

Who says that same-sex couples cannot become parents? The Cabinet’s draft allows a spouse in a same-sex marriage to adopt the other spouse’s biological children, but not the spouse’s adopted children, nor does it allow the couple to jointly adopt children that one of them was not involved in procreating. Lin’s draft only allows for joint guardianship of the other spouse’s biological children, no adoptions.

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