On 24 May 2017, the Constitutional Court of Taiwan issued a ruling in favour of same-sex marriage (full text in Chinese; press summary in English). The ruling gave two years for the government and the legislature to implement same-sex marriage, failing which same-sex couples would automatically be able to marry. As a result of this, Taiwan will likely become the first jurisdiction in Asia to introduce marriage equality. This blog looks at the significance of this ruling by comparing it to other judgments in favour of marriage equality in the United States and South Africa.
According to the ruling, the exclusion of same-sex couples from marriage violated the constitutionally guaranteed freedom to marry as well as the right to equality. The freedom to marry is not an explicitly protected right or freedom in the constitution of Taiwan (officially the Republic of China). Nevertheless, the court held that the freedom to marry is a “fundamental right” requiring constitutional protection, and decisions as to who to marry should lie within one’s autonomy. Since both heterosexual and homosexual couples have the need and desire to establish “intimate, exclusive, permanent relationships”, both should enjoy the freedom to marry.
On the right to equality, the court recognised that sexual orientation is an “immutable characteristic that is resistant to change”, that gays have long been discriminated in society, and as a minority it is difficult for them to change that position through normal democratic procedures. Hence, discrimination against gays must be subject to “heightened” scrutiny: it can only be justified if it is a rational means in pursuance of an important public interest. The court went on to dismiss two purported justifications of excluding gays from marriage, holding that procreative ability is not an essential element of marriage, and that allowing gays to marry would not violate the “basic ethical orders” of marriage since same-sex couples can also observe these ethical orders such as loyalty and care.
There are notable similarities between the reasoning of the Taiwan court and that of the Supreme Court of the United States (“SCOTUS”) in Obergefell v Hodges, which primarily held that marriage is a “fundamental right” within one’s personal autonomy and is therefore subject to Due Process protection. SCOTUS also held that marriage equality could be derived from the Equal Protection Clause of the US Constitution, but it notably did not clarify whether classifications based on sexual orientation would attract the heightened level of scrutiny that sex/gender-based classifications enjoy. Not only did the Taiwan court go further by declaring that sexual orientation attracts “heightened” scrutiny, but it also invoked criteria that are very similar to those used by American courts to determine suspect classifications.
Both the Taiwan court and SCOTUS also ruled for marriage equality in a way that emphasized the fundamental importance of the institution of marriage. Justice Kennedy’s memorable conclusion in Obergefell extolled that “no union is more profound than marriage,” without which gays would be “condemned to live in loneliness”. The Taiwan court remarked that same-sex marriage could become the “cornerstones of social stability” along with opposite-sex marriage.
For marriage equality proponents, these are inspiring statements directly countering arguments that same-sex marriage would “destroy” families or marriage; for more radical Queer activists, however, these statements reinforce an institution that excludes and diminishes other possibilities of intimate relationships outside marriage. This could be a particularly salient critique in Taiwan, where the marriage equality movement was born out of the “Diverse Families” movement. The original movement had campaigned for legal recognition of non-traditional families including same-sex marriage, non-marriage partnerships and multiple-person households, but it now unclear how the non-marriage components of the movement could be revived.
Queer activists might therefore find the South African Constitutional Court’s approach in Fourie to be a more preferable one. Having noted Queer critiques of the institution of marriage, the court nevertheless emphasized the importance of having the choice to enter into marriage, “given the centrality attributed to marriage and its consequences in the [South African] culture” (paragraph 72). By emphasizing the right to equality rather than the right to marry, the court left greater room for the more transformative changes that Queer activists seek.
Nevertheless, Taiwan’s acceptance of marriage equality is a powerful counter-narrative to still-prevalent arguments that LGBTQ rights are merely Western products incompatible with local cultures. It is also a strong testimony to the universality of human rights. For these reasons, we could enjoy a celebratory moment.