The Council of Grand Justices yesterday ruled that the Civil Code, which says an agreement to marry can only be made between a man and a woman, “violated” constitutional guarantees of freedom of marriage and equality.
The landmark Constitutional Interpretation No. 748 rules in favor of allowing homosexual couples to register for marriage, and grand justices have asked the legislature to amend relevant laws within two years to protect the interests of homosexuals.
If the government has not changed the law in two years, same-sex couples will be allowed to register their union at household registration offices, Judicial Yuan Secretary-General Lu Tai-lang (呂太郎) said.
Photo: Wang Yi-sung, Taipei Times
The Civil Code violates the freedom of marriage and equal rights for all citizens as guaranteed by the Constitution, Lu said.
The grand justices made the ruling after receiving two requests for a constitutional interpretation of the issue.
One request was filed by veteran gay rights advocate Chi Chia-wei (祁家威) in 2015 after his attempt to register his same-sex marriage was rejected by Taipei’s Wanhua District (萬華) household registration office in 2013 and subsequent court appeals failed.
The other request was filed by the Taipei Department of Civil Affairs in 2015, after three same-sex couples filed an administrative lawsuit against the government after their marriage registrations were rejected by the department.
Justice Huang Jui-ming (黃瑞明) abstained from the vote and took no part in deliberations, the ruling said.
Dissenting opinions were filed by Justice Huang Horng-shya (黃虹霞) and Justice Wu Chen-huan (吳陳鐶).
“Marriage is a union between a man and a woman, who live life together as an institution, which is protected by the Constitution. Making changes would involve altering social and cultural values, which should not be made by merely copying developments in other nations... Therefore, the decision to legalize same-sex marriage should be made by a referendum,” Wu said.
It is a fallacy to rule that Civil Code provisions are unconstitutional, Huang Horng-shya said.
Same-sex marriage is not a fundamental human right to be universally protected, she said.
She said that she supports legislating legal protections of civil unions for same-sex adults, but does not view a homosexual union the same way as a marriage between a man and a woman.
Among the main reasons cited for the majority decision were that prior interpretations mentioning “husband and wife” or “a man and a woman” were made within the context of heterosexual marriage.
“This court has not made any interpretation on the issue of whether two people of the same sex are allowed to marry,” the ruling said.
The Civil Code does not require the ability to procreate as a requirement for marriage and reproduction is not an essential element of marriage, the ruling said, adding that procreation should not be an essential element of marriage.
Opposition to same-sex marriage based on safeguarding social and ethical values is incompatible with the spirit and meaning of equal rights as protected by the Constitution, the ruling said.
The Judicial Yuan also issued a three-page abstract on the ruling in Chinese and English, to accompany Constitutional Interpretation No. 748, which is 24 pages long.
Legal experts said it was rare for the Judicial Yuan to issue an English-language statement of a constitutional interpretation. They see the move as an official declaration to the international media of the decision that has made Taiwan the first Asian nation to recognize same-sex unions.
In response to media queries over whether same-sex foreign nationals could register their marriage in Taiwan, Lu did not give a direct answer, but said they would have to abide by provisions in the Act Governing the Choice of Law in Civil Matters Involving Foreign Elements (涉外民事法律適用法).
additional reporting by CNA
EFFICIENCY: The rules for Philippine arrivals were revised after 17.6% of arrivals with symptoms tested positive, compared with 0.7% of those with no symptoms Starting today, Chinese spouses who hold a reunion permit can apply to enter Taiwan and travelers without symptoms from the Philippines do not need to be tested for COVID-19 upon arrival, but are to be tested after a 14-day quarantine, the Central Epidemic Command Center (CECC) said yesterday. Minister of Health and Welfare Chen Shih-chung (陳時中), who heads the center, said that from today, Chinese who are married to a Taiwanese citizen and hold a reunion permit can apply to the National Immigration Agency for entry into Taiwan. Chinese who are married to a foreign national and hold an accompanied reunion permit
PENGHU INSPECTION: Taiwan cannot let its enemies strut around in its airspace, Tsai said, one day after a Chinese spokesman denied a median line exists in the Taiwan Strait Following China’s assertion on Monday that there is no “median line” in the Taiwan Strait, President Tsai Ing-wen (蔡英文) yesterday pledged to defend the nation’s airspace during a visit to an air force base in Penghu, saying that Taiwan cannot allow others to flex their military muscle in its territorial airspace. Tsai praised the “heroic performance” of the pilots of the Indigenous Defense Fighters who have been intercepting Chinese People’s Liberation Army Air Force planes in recent days. “I have a lot of confidence in you. As soldiers of the Republic of China [ROC], how could we let enemies strut
CONSOLIDATION? Taiwan Thinktank deputy executive-general Doong Sy-chi said Beijing’s intimidation tactics are further alienating those who identify as Chinese Only 2 percent of respondents to a poll on constitutional amendments and national identity identified as Chinese, while 62.6 percent identified as Taiwanese, the Taiwan Thinktank said yesterday. Legislators have proposed amendments to the Additional Articles of the Constitution (憲法增修條文), which would change the definition of the nation’s territory, remove the Taiwan Provincial Government as an entity, prioritize the use of “Taiwan” for national groups at international events, and remove restrictions on defining the national emblem, national flag and national anthem. The poll showed that 80.5 percent of respondents agreed that the nation should participate as “Taiwan” at events organized by world
MISTAKE: The Global Covenant of Mayors for Climate and Energy is not a UN body, and the government is committed to protecting the nation’s name, Joseph Wu said The Ministry of Foreign Affairs yesterday condemned the Global Covenant of Mayors for Climate and Energy for listing Taiwanese cities as belonging to China on its Web site, and asked that it correct the error. The organization was inaugurated in Brussels in 2016 as a global coalition of mayors committed to reducing greenhouse gas emissions. Six Taiwanese cities at the time joined the coalition as cities in “Taiwan,” the ministry said. However, officials from the Kaohsiung City Government — one of the organization’s members — last week noticed that the city was now listed on the organization’s Web site as a