Taiwan’s constitutional court heard arguments on Friday over the landmark marriage equality case, marking a significant step forward for the marriage equality movement in Taiwan. The debate focused on key questions about whether extending marriage rights to LGBTQ individuals is unconstitutional or not. The panel of 14 grand justices would also determine whether denying LGBTQ couples marriage rights under the civil code or setting up a separate partnership system – such as civil unions – constitute a violation of articles under Taiwan’s constitution regarding equality and marriage freedom.
During the proceedings, representatives from different sides of the case, including the pioneer of Taiwan’s LGBTQ movement Chi Chia-Huei and Minister of Justice Chiu Tai-San, presented their arguments in front of the panel in a televised debate. Chi, who has been fighting for marriage equality since 1980s, made a heart-felt statement when addressing the court.
“I have been waiting for this day for 41 years, 6 months and 24 days,” said Chi. “Currently, homosexuality is already considered normal by experts from the medical field, so when normal people try to do normal things like get married, why can’t that be allowed?”
On the other hand, Minister Chiu presented a series of arguments explaining why it is constitutional for the civil code to deny LGBTQ individuals the right to get married.
“Laws reflect social needs, and they offer structural affirmation,” said Chiu. “The marriage rights defined by the civil code are social mechanisms formed through thousands of years of tradition.”
Chiu elaborated more when asked by Taipei City Government’s representative, Liao Yuan-Hao, about marriage equality’s potential impact on public welfare. Chiu emphasized that any impulsive amendment to the civil code will have a huge impact on social order, since any amendments to the civil code will directly affect marriage and family structures.
“The civil code never specifically defines same-sex marriage, so since when has the existing law gone against the constitution,” said Chiu.
When confronted by Chiu about when the social need for same-sex marriage emerge, Hsu Hsiu-Wen, Chi’s deputy, argued why does the marriage right need to discriminate against same-sex couples.
“Equality is the kind of thing that if I am able to stand up because of it, no one else should fall down as a result,” said Hsu.
An All-Out Opposition and a Sensible Response
According to Daniel Chen, one of the attorneys advising Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), many legal professionals, including himself, were a bit surprised by Chiu’s shift in his position on marriage equality.
“Minister Chiu originally held a more reserved position when he was questioned in the legislature, saying that he will follow the legislative outcome and execute the law accordingly,” said Chen. “So many of us were surprised by the way he phrased his arguments today. However, his position may suggest that the Ministry of Justice favors a special law as the final outcome.”
Pan Tian-Ching, a member of the TAPCPR’s legal advising team, believes that the sensible approach adopted by Hsu during the debate allows the grand justices to better understand what the pro-marriage equality side is appealing for, instead of going head-to-head with Chiu.
“We believe today’s debate is a rational dialogue,” said Pan. “Compared to the previous legislative process, today’s debate was a respectful and rational dialogue.”
Possible Scenario for the Constitutional Interpretation
At a workshop held by the Global Shapers Taipei on Sunday, Chen offered two possible scenarios for the outcome of the constitutional interpretation. He believes that the more optimistic scenario would be that the court considers the civil code’s opposition to marriage equality unconstitutional. If so, the court would likely set a deadline for the legislature to pass amendments to the marriage clause under the civil code that would grant LGBTQ individuals the full marriage right, including relevant benefits.
Another possible scenario is the court will choose to seek a narrow interpretation of marriage, and suggest that the legislature examine how they can adopt necessary steps to protect LGBTQ individuals’ rights to form partnerships, rather than using the word “marriage” in their final interpretation.
“The outcome will have a lot to do with whether the court decides to adopt a wider interpretation of marriage or a narrow interpretation,” said Chen. “Unfortunately, if the court considers the current opposition in the civil code to be constitutional, they will simply announce the result and suggest no amendment.”
The final interpretation from the court will likely be made available to the public within a month.
(All feature photos by William Yang)