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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The sad case of DPP Justice Minister Chiu Tai-san

Onions. Because Chiu Tai-san makes me cry.

Our DPP Justice Minister revealed himself to be not only a retrograde thinker, but a Han nationalist to boot. Speaking on gay marriage at a hearing that was live streamed, Justice Minister Chiu Tai-san said:

“The Civil Code stipulates that marriage shall be between a man and a woman, and as such it is not unconstitutional. The Constitution guarantees citizens’ right to marry as that between a man and a woman, while marriage between people of the same sex is not covered under the Constitution,” Chiu said.

“For thousands of years in the nation’s history, society has instituted traditions and codes of conduct regarding marriage. Has there ever been a cultural institution or social phenomenon for same-sex marriage?” Chiu said.

“Without a doubt, there has been none,” Chiu said.

He then quoted one section of the Chinese classic I Ching (易經), also known as the Book of Changes, which reads: “With the existence of the earth and the sky, there came all living things. With the existence of the earth and the sky, there came men and women,” which he said illustrates that Chinese marriage traditions have — since ancient times — been based on a union between a man and a woman.

This kind of argument is completely idiotic -- projecting modern institutions into the past in order to legitimate them. Jenna (added: actually her quietly brilliant husband) tracked down this website giving some examples of different kinds of marriages in China over time. Recall that polygamy was common, with not only multiple wives but also concubines. And women marrying a set of brothers was a known marriage form. Any competent anthropologist could give many examples of other forms of marriage not only in China but all over the world.

The issue is exactly the same as in the US, where "conservatives" scream the lie that marriage has always been one man, one woman. Reality is always the opposite of such fantasies. It is not difficult to find the many works that depict the deep roots of homosexuality and same-sex marriage in Chinese culture. Take the introduction to this book, which remarks on the commonality of homosexuality in Chinese culture:

Many times homosexuality acted as an integral part of society, complete with same-sex marriages for both men and women. 

You don't have to know anything about gay marriage in Chinese history to know that if a social conservative is asserting something about marriage and history, he's almost certainly wrong. Indeed, in many Buddhist circles where reincarnation is believed, it is also believed that two souls are fated to marry each other irrespective of sex, which provided religious sanction for homosexual marriage in ancient Chinese society. Of course many regions had their own traditions of gay marriage. Chiu's claims are a perfect melding of idiocy and ignorance.

Why O why can't science and scholarship form the basis of our public discourse and decision-making?

Despite Chiu Tai-san's claim, the ROC Constitution does not mention marriage, as far as I can see. Article 7 guarantees equality before the law, while Article 8 guarantees personal freedom. How you interpret that is up to you. But it seems to me that it is hard to uphold Article 7 yet oppose gay marriage.

Citing the I Ching is unwise, at best. A DPP minister should take the view that Taiwan can form its own traditions, customs, and cultures, and that China should be left behind. Using Chinese historical hokum as the basis for arguments in modern society should never be a DPP practice, it tends to create connections where none are necessary.

Moreover, anti-homosexuality in modern Taiwan has its roots in another discourse -- that of state power and control, the heterosexualization of society, and the faux Confucian morality of the KMT's Party-State. This paper observes:

During the first two decades of Kuomintang (KMT) rule, Taiwan experienced steady economic growth but changes to the political system were not permitted; the corporatist model of KMT rule was omnipresent. Taiwanese society between the 1950s and 1960s could be described as heterosexualized in terms of discourse; “family values” were regarded as deriving directly from a stable Confucian and Chinese tradition and public discourses of same-sex desire were almost non-existent:

...revealing the fundamental truth: that assertions of "family values" are the code language of right-wing nationalist state power and control.

Hence, when Chiu Tai-san marginalized gay marriage (and implicitly, gayness) as "unChinese", he was invoking decades of this rightist, ahistorical, inhuman discourse that helped form the basis of KMT power in Taiwan.

Thanks, Chiu Tai-san. You're a genius.

Imagine if Chiu had taken another view -- that gay marriage was an ancient practice in south China from whence many ancestors of Taiwanese arrived. Imagine if his use of history had been informed, sensitive, and progressive. Imagine if he'd envisioned gay people as human beings like himself....

Total fail on all fronts by Chiu Tai-san.
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