The Liberty Times editorial, published in this newspaper, essentially argues that the Council of Grand Justices Constitutional Interpretation No. 791 on May 29, ending 85 years of criminal punishment for adultery, is an act of judicial activism that ran ahead of what Taiwanese society is willing to accept (“Adultery ruling is too progressive,” June 14, page 6).
That 14 of the 15 justices came to consensus on the ruling was evidence, the editorial claims, of a divide in values between the justices and the public, who were unready for such “controversial” changes.
The editorial is uncomfortable with the Judicial Yuan rather than the Legislative Yuan leading the way on this issue, and argues that the ruling is hasty and contradicts legal precedent.
The editorial finds much to agree with Grand Justice Wu Chen-huan (吳陳鐶), the sole justice who opposed the interpretation. In his dissenting opinion, Wu says that while adultery is an act belonging to the private sphere, marriage involves many aspects of public interest, and restrictions on sexual behavior, such as those identified in the 2002 Constitutional Interpretation No. 554, remain “essential in order to safeguard marriage, the family system, and the social order.”
Interpretation No. 791 could be considered as “progressive” as Interpretation No. 748, which legalized same-sex marriage, and both have been critiqued for running against a public consensus and undermining the “sanctity” of the institution of marriage.
Opponents of these rulings seem to share a concern that judiciary-led changes would “considerably affect the nation’s relatively conservative society” which “attaches great importance to loyalty in marriage.”
How likely are these changes to have the portended impact?
Taiwan’s situation in some ways compares to the situation in the US. In the US’ short history, adultery has been criminalized for longer than not.
As recent as 2017, adultery was still criminalized in 21 states, most commonly as a misdemeanor, while 29 states had abolished criminal prosecution, the last successful prosecution nationwide being in Massachusetts in 1983.
Cases such as Lawrence v Texas (2003) have solidified an implicit “right to privacy,” which is, as the US Supreme Court ruled, based on “personal autonomy to define one’s own relationships and of American traditions of non-interference with private sexual decisions between consenting adults.”
Legally and conventionally, adultery in the US is treated almost entirely within the private sphere. It is a civil matter, a breach of contract being a common casus belli between partners, often leading to divorce or separation.
Culturally, adultery is no longer seen as a “social sin,” whose exposure brings ruin upon those who engage in it, but as a destructive, yet largely unavoidable outcome of personal choices.
It does not seem that the integrity of the institution of marriage is worryingly compromised by handling adultery as a private matter.
Likewise, the US legalized same-sex marriage nationwide in 2015. Again, it appears that allowing two people to marry has not negated, devalued, or marginalized the ability of two different people to also marry.
The divorce rate is one, albeit limited, way of measuring the integrity of the institution of marriage and, by extension, the importance of loyalty as a commonly shared cultural value.
In the US, the divorce rate in 1992 was 4.8 per 1,000 residents. By 2016, this had dropped to 3.2.
In Taiwan, the divorce rate rose from between 12 and 15 percent in the early 1990s to almost double that in the early 2000s.
Sounding the alarm would be premature, as the divorce rate peaked in 2010 at 2.51 per 1,000 residents and has fallen to a stable 2.31 in 2017 and 2018. The rate has risen as divorce has become an accessible option and then flattened out at a rate that is still well below the rates in many other nations.
It is hard to conclude that the integrity of marriage as a social institution has been irrevocably compromised, and there is little evidence suggesting that the criminalization of adultery has contributed to defending it.
Likewise, the figures do not indicate a devaluation of the concept of loyalty within relationships.
Although this is only one measure, it is hard to dispel a sense of a disproportionate reaction in the Liberty Times’ response to the ruling, one that is to affect a minority of residents and most of them in a positive way. Why then call for a public consensus first?
There seems to be a pattern of public consensus being invoked when foundational elements of the constitutional, legal, social and moral orders are in focus of reform. Some of the consensuses referred to in these situations are more organic than others.
One issue periodically raising concerns is the abolition of the death penalty. When the Ministry of Justice under both Chinese Nationalist Party (KMT) and Democratic Progressive Party governments has authorized executions, it has pointed to a lack of a public consensus for abolishing the death penalty, therefore retaining the “status-quo.”
The wrongful execution of Chiang Kuo-ching (江國慶) and the protests that it engendered, culminating in a public apology from then-president Ma Ying-jeou (馬英九) and the Ministry of National Defense, have done little to move the needle of public opinion on the issue.
Although there seems to be greater outrage at miscarriages of justice involving the death penalty, general support for its implementation is backed by a consistent majority.
In contrast, between 2000 and 2016, variations of the so-called “1992 consensus” were promoted by the KMT, while in government or opposition, sometimes accompanied by polls indicating marginal public support.
Sadly, a historic meeting in Singapore publicly shattered the core mythology of the “consensus” and it failed, its plausibility seemingly dependent on a domestic audience not paying attention to the Chinese interpretation of it.
Contrails of this implosion can still be seen in discourses on cross-strait relations. Seeing mention of the “1992 consensus” has become the political equivalent of seeing a supernova. It looks active in the present, but you know you are technically watching the past.
I hope these examples illustrate why defining public consensus is not precisely scientific. Consensus can be manufactured or manipulated, and on principle, it is neither a fit nor fair means for deciding whether people are entitled to basic human rights.
Decriminalizing adultery strengthens the right to privacy and reduces the state’s role in policing behavior and values, a common feature of the brutal regimes that occupied Taiwan and forced compliance to their values between 1895 and 1987.
Whether or not a person agrees with the grand justices’ decision, calling into question the legitimacy of the ruling and the wider judicial system for not reflecting public opinion feels like a rash and conservative reaction for a generally “liberal” publication.
Despite omens of societal and moral decay, there is no evidence suggesting that the legalization of same-sex marriage has yet had, or will have, a deleterious effect on social order, and there is no indication that the decriminalization of adultery will have.
US economist and social theorist Thomas Sowell wrote that “the reason so many people misunderstand so many issues is not that these issues are so complex, but that people do not want a factual or analytical explanation that leaves them emotionally unsatisfied.”
I humbly submit that on this occasion the Liberty Times admit it has found the grand justices’ ruling less than satisfying emotionally, and there might be benefit in pausing and considering trusting the public to adapt to it, and subsequently to progress.
Ben Goren is an essayist, businessman and long-term resident of Taiwan.
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