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
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