On May 17, Taiwan became the first Asian nation to legalize same-sex marriage after the Legislative Yuan passed the Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748 (司法院釋字第748號解釋施行法).
However, according to Article 26 of the act, “freedom of religion and other rights that any person or group are entitled to will not be affected by the enforcement of the Act, and can be exercised in compliance with the law.”
Does this provision function as a statement or actually have legal effect?
The basic human rights guaranteed by the Constitution can never be voided by the enforcement of a certain law. Therefore, if this provision is to serve as the norm, it must be treated as a basis for dealing with conflicting rights.
The question is: Can a single provision solve complex conflicts?
According to Article 982 of the Civil Code: “A marriage shall be effected in writing and it requires the signatures of at least two witnesses and registration in person at a Household Administration Bureau to take effect.”
Therefore, when a same-sex couple goes to court to get married and a household registration office to register their marriage, the personnel handling their cases are representing the state and not themselves, so they cannot refuse them because of their religious beliefs.
What if a same-sex couple wants to be married at a religious place: Can a member of the clergy refuse them?
The Civil Code only requires the signatures of at least two witnesses for a marriage to be effected — an open ceremony and clergy are not required.
Therefore, in the private sector, a clergy’s refusal to officiate a wedding ceremony on the grounds of freedom of religion does not seem to contravene the law.
This would inevitably lead to breaches of equality that are justified as freedom of religion or autonomy of private law.
If a cake shop announces that it would not make wedding cakes for same-sex couples, there would be a lot of debate on whether this is protected by the freedom of religion or a matter of discrimination, and this would have to be solved by legislation.
However, when writing anti-discrimination legislation, it is very difficult to decide which public welfare legal fields it should be applicable to and how the law should be written so as to avoid invading the core of private law autonomy.
For example, according to Article 6 of the Educational Fundamental Act (教育基本法): “Private schools may organize specific religious activities aligned with the purpose for which the school was established or with the specific nature of the school; they shall respect the wishes of school administrative personnel, teachers and students to participate in such activities, and may not treat any person in a discriminatory way because they do not participate.”
If a school staff member married to someone of the same sex or students would like to participate in such activities, and the school refused such participation based on the right to religious freedom mentioned in Article 26 of the Enforcement Act, this article could be used to legitimize discrimination, thus contravening the Constitution.
If the issue of active protection and conflict is not further clarified by law, such issues will have to be resolved in court or even by the Constitutional Court that is to be established in two-and-a-half years.
Wu Ching-chin is an associate professor in Aletheia University’s Department of Law.
Translated by Lin Lee-kai
Since the end of the Cold War, the US-China espionage battle has arguably become the largest on Earth. Spying on China is vital for the US, as China’s growing military and technological capabilities pose direct challenges to its interests, especially in defending Taiwan and maintaining security in the Indo-Pacific. Intelligence gathering helps the US counter Chinese aggression, stay ahead of threats and safeguard not only its own security, but also the stability of global trade routes. Unchecked Chinese expansion could destabilize the region and have far-reaching global consequences. In recent years, spying on China has become increasingly difficult for the US
Lately, China has been inviting Taiwanese influencers to travel to China’s Xinjiang region to make films, weaving a “beautiful Xinjiang” narrative as an antidote to the international community’s criticisms by creating a Potemkin village where nothing is awry. Such manipulations appear harmless — even compelling enough for people to go there — but peeling back the shiny veneer reveals something more insidious, something that is hard to ignore. These films are not only meant to promote tourism, but also harbor a deeper level of political intentions. Xinjiang — a region of China continuously listed in global human rights reports —
The annual summit of East Asia and other events around the ASEAN summit in October and November every year have become the most important gathering of leaders in the Indo-Pacific region. This year, as Laos is the chair of ASEAN, it was privileged to host all of the ministerial and summit meetings associated with ASEAN. Besides the main summit, this included the high-profile East Asia Summit, ASEAN summits with its dialogue partners and the ASEAN Plus Three Summit with China, Japan and South Korea. The events and what happens around them have changed over the past 15 years from a US-supported, ASEAN-led
To the dismay of the Chinese propaganda machine, President William Lai (賴清德) has been mounting an information offensive through his speeches. No longer are Taiwanese content with passively reacting to China’s encroachment in the international window of discourse, but Taiwan is now setting the tone and pace of conversation. Last month, Lai’s statement that “If China wants Taiwan it should also take back land from Russia” made international headlines, pointing out the duplicity of Chinese President Xi Jinping’s (習近平) revanchism. History shows that the Chinese Communist Party’s (CCP) stance on regional territorial disputes has not been consistent. The early CCP
RSS