High Court Clears way for gay marriage in Taiwan

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Yesterday's verdict of the Constitutional Court (full text) striking down prohibitions on gay marriage was especially moving for me. The verdict was due at 4:00, so I turned on the livestream in my writing class, which is full of very progressive Chinese medicine students. A deep throb of joy ran through us all as the court announced that gay people were full human beings like everyone else. It was a beautiful moment in my life.

China Post summed it up simply:

The Constitutional Court ruled that the Civil Code provisions that do not allow same-sex marriage are unconstitutional and asked the government to amend relevant laws within two years to protect gay couples' rights.

Article 972 of the Civil Code states that an agreement to marry "shall be made by the male and the female parties in their own concord."

Of the 15 justices, 12 were in favor of this interpretation (with one recusal), a stunning figure when you consider that the court has a majority of Ma appointees and the KMT is opposed to gay marriage.

The court's verdict was highly progressive. Not only did it recognize equality of all citizens under the law, as enshrined in Article 7 of the Constitution, it also forthrightly referred to modern medical and social research on homosexuality:

(6) Sexual orientation is an immutable characteristic that is resistant to change. The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment. Major medical associations have stated that homosexuality is not a disease. In our country, homosexuals were once denied by social tradition and custom in the past. As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination. Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society. Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process. Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.

If only my home country was so progressive. This verdict was also delivered first in English, a first in the nation's history. As soon as I heard the announcement that English would be the language, I thought it might be favorable.

This verdict will redound to Taiwan's credit wherever people long to build loving, human-centered societies. It will be heard in China, where the courts have only limited independence. It will help advance the cause of different people everywhere. Good job, my adopted home.

The President tweeted:

Tsai made her stance in favor of the ruling clear in the first line of the tweet saying, "The law must protect the people's freedom of marriage and right to equality."

She then called on all government agencies to move as quickly as possible to draft legislation for deliberation in the Legislative Yuan, and pass the bills in a "timely manner." Prior to the court's ruling, legislation on same-sex marriage had been bogged down in the legislature for months.

Lastly, Tsai called on everyone in society to show "understanding, tolerance, and respect" of those who hold different opinions from their own. There are a number of groups that oppose same-sex marriage which have staged large-scale rallies over the past year against its legalization. A poll by the Ministry of Justice released in 2015 showed 71 percent of Taiwanese supported marriage equality, while a survey conducted by Trend Survey and Research on behalf of the opposition Kuomintang found 51.7 percent of respondents supported legalizing same-sex marriage, while 43.3 percent disapproved.

Good on several levels -- she didn't dehumanize the opponents of gay marriage even though they have consistently dehumanized gays, and she pointedly asked the legislature to get off its butt and get this passed. Many observers noted that this will provide a shield for legislators who have been dragging their feet. Tsai obviously views herself as the President of everyone in Taiwan. Good on her.

Keep in mind that we do not have gay marriage yet, despite all the celebrating. The Court essentially struck down laws opposing gay marriage, and then gave legislators two years to erect a legal framework for gay marriage. At that point, as I understand it, if the legislature does nothing, gay marriage will be a reality in June of 2019 unless someone changes the Constitution. Couples will simply be able to walk in and register a marriage irrespective of gender. As it should be. But room for compromise mischief remains. As Cole observes in his write-up:

Despite the good news, it could be several months before the legislature turns the amendments into the law of the land, and conservative organizations are expected to escalate their efforts to prevent this from happening. In light of Wednesday’s decision, another option for legislators could be to write a separate piece of legislation permitting civil unions, although this alternative is regarded as discriminatory by many members of the LGBT community and their supporters, who want the same rights, under the same laws, as the rest of the nation’s citizens.

Then with gay marriage the headaches over property, children, and divorce will begin. Why does anyone want to get married? People ask me if I support gay marriage, I say "All marriage should be illegal"... Feeling very Rodney Dangerfield here.

Some people were worried that there might be a move to change the Constitution to prevent gay marriage. Won't happen. First, the KMT made it difficult under the law to get Constitutional change done, and second, that would require legislators to have spines of steel to ram through a change, and most legislators are made of pudding.

Meanwhile the haters were out in full force in opposition to the ruling. BBC refers to these yammerheads as "traditionalists" but there is nothing traditional about their position on gayness and gay marriage, both of which were traditional in Chinese history. Our current anti-gay marriage culture is an aberration of the last couple of centuries, and the anti-gay marriage authoritarian Christianity driving much of the vocal objections here is a post-Enlightenment phenomenon.  J Michael Cole was interviewed in Queerious on the opposition to gay marriage in Taiwan and its relationship to overseas authoritarian Christian movements.

MEDIA: In case you've ever wondered whether BBC was ardently pro-China, just watch how it removes "country" and uses "place" in its updates on gay marriage here. How cowardly is BBC? HongKongFP, based in China, said Taiwan was first country. A net-friend acidly observed of Reuters:

Also bizarre (though not surprising, given past form) that the Reuters report included the totally irrelevant 'which China regards as a renegade province' gambit. WTF does that have to do with a domestic issue like marriage equality? It's like they have OCD: "Taiwan, which China regards as a renegade province, has a celebrated annual gay pride parade that showcases the vibrancy of its lesbian, gay, bisexual and transgender community

FURTHER: Ketagalen Media's short report is here.
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