Why Taiwan’s Anti-LGBT Groups’ Common Law Proposals Are Unconstitutional


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On February 21, the Executive Yuan of Taiwan unveiled the Enforcement Act of Judicial Yuan Interpretation No. 748, which, if passed, will recognize same-sex marriages. An anti-LGBT group criticized the bill for violating the results of Questions 10 and 12 on the November referendums, instead proposing the establishment of a “same-sex cohabitation law” to recognize the Same-sex “unions”, not “marriages”, in Taiwan Constitution.

However, if we look in detail at the 10th referendum question, the real objective of the referendum was to determine the notion of marriage within the Civil Code.

The Central Election Commission referendum summary states that, regardless of the outcome of the referendum, “this does not exclude same-sex couples from the protection of their right to long-term intimate and exclusive partnerships guaranteed by other laws, which is in accordance with the equal protection of the freedom of marriage as set out in interpretation n ° 748. In other words, the result of the 10th point of the referendum will only influence the government so that it guarantees same-sex marriage in the Civil Code. It cannot dictate any unions outside of the Civil Code or prevent any other law from protecting same-sex marriages, which are protected by a landmark 2017 high court ruling affirming that same-sex couples in Taiwan have the constitutional right to marry.

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Credit: AP / TPG

The Cabinet bill respects the results of the November referendums and the 2017 ruling of Taiwan’s highest court.

Likewise, in the summary of the 12th referendum question, supporters said: “The question of whether a same-sex relationship should be considered a ‘marriage’ has no bearing on whether this element should be inscribed. in the referendum. Therefore, the 12th referendum question can only ask the government to safeguard same-sex relations with other laws outside of the Civil Code. However, this cannot prevent the government from recognizing same-sex “marriages” – the verbiage of same-sex unions has been left out of the question decided by voters.

In this perspective, the Executive Yuan Bill will guarantee same-sex marriages outside the Civil Code, which is fully in line with the results of the 10th and 12th referendum questions. The bill also guarantees same-sex marriage, as clarified in Interpretation No. 748.

In fact, the above discussion of the scope and legal effect of “Interpretation No. 748”, as well as that of referendum issues, has already been widely discussed by the Central Election Commission, the Judicial Yuan and many. experts and academics. of the field. The results of the “anti-LGBT referendum” have no legal effect on same-sex relationships, let alone the possibility of revoking the constitutional ruling on same-sex marriage. I think all anti-gay marriage groups need to face the music and go back to the principles of law in order to think logically about their own referendums and supporting summaries, rather than repeatedly developing their explanation of the referendum and to try to force everyone to accept their arguments.

Equal marriage, but also equal rights

Here, it should be emphasized in particular that the Constitutional Court’s “Interpretation n ° 748” includes two major points in its judgment: Freedom of marriage and equal rights.

“Interpretation No. 748” has already given an explicit definition of “freedom of marriage”. “Unmarried persons eligible for marriage have the freedom to marry, which includes the freedom to decide ‘if to marry’ and ‘who to marry’. “

In the past, whenever the Constitutional Court has explained the freedom of marriage, the terms used have always been “marriage”, “to marry”, “eligible for marriage”, “putative marriage” and so on. Since the Constitutional Court already has consistent legal terminology, when we discuss the legislative protection of “freedom of marriage”, the terms of the Constitutional Court should prevail. Any word that is not “marriage” is a deliberate play on words that deviates from constitutional meaning. The same-sex cohabitation laws advocated by anti-LGBT groups are unconstitutional.

Moreover, not only does the constitutional interpretation affirm that “freedom of marriage” is a “fundamental right” of all citizens, but it also advocates the protection of “equal rights” for the LGBT community, it is why it concludes with “equal rights”. protection of the freedom of marriage. From this, we can assume that “Interpretation 748” has a strong focus on the freedom of “marriage” in addition to the value of “equal rights”. Therefore, if the same-sex marriage bill legally recognizes only same-sex marriage, it will not follow the constitution, as it is also necessary to ensure equality for same-sex relationships.

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Credit: Michael Garber

The bill unveiled on February 21 by Taiwan’s Executive Yuan may need to undergo changes to enshrine full equality for same-sex couples.

Stepping back and looking at it all, the bill proposed by the Executive Yuan has already recognized same-sex marriages, which means that we have taken the first steps to ensure the freedom of marriage for same-sex couples.

Going forward, through discussions and amendments, the legal system has an obligation to ensure that the same-sex marriage bill actually enjoys “equal protection”, thus fully embracing the spirit of the interpretation of the Constitutional Court.

Read more: Cabinet unveils bill, chooses side in fight against same-sex marriage in Taiwan

This article first appeared in the Taiwanese Chinese edition of The objective of the news and can be found here.

Translator: Zeke Li

Publisher: Nick Aspinwall (@ Nick1Aspinwall)


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