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Taiwan: Constitutional Court Rules Same-Sex Marriage Prohibition Unconstitutional

(June 5, 2017) On May 24, 2017, Taiwan’s Constitutional Court announced J.Y. Interpretation No. 748, which rules that the prohibition of same-sex marriage in the current Civil Code violates the Constitution. (Judicial Yuan Interpretation No. 748 and Reasons (May 24, 2017), Judicial Yuan website (in Chinese) (click on the first PDF link); Press Release, On the Same Sex Marriage Case (May 24, 2017) Judicial Yuan website (click on link for Press Release).)

According to the Interpretation, the provisions of Chapter 2, “Marriage,” of Part IV, “Family,” of the Civil Code (hereinafter Marriage Chapter) “do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the committed purpose of managing a life together.” The provisions are held to be in violation of the right to freedom of marriage under article 22 and the right to equality under article 7 of the Constitution.  (On the Same Sex Marriage Case, supra; Constitution of the Republic of China (Taiwan) (Jan. 1, 1947), LAWS AND REGULATIONS DATABASE OF THE REPUBLIC OF CHINA.)

The 11-page long Interpretation provides detailed reasoning concerning the ruling. According to the Court, the freedom to marry protected by the Constitution includes the freedom to decide “whether to marry” and “whom to marry.”  “Such decisional autonomy is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right to be protected by Article 22 of the Constitution.”  (On the Same Sex Marriage Case, supra.)

Although sexual orientation is not listed under article 7 of the Constitution, which provides that all citizens are equal before the law “irrespective of sex, religion, race, class, or party affiliation,” the Court ruled that different treatment based on other classifications such as disability and sexual orientation must also be governed by the right to equality under article 7. (Id.)

According to the Interpretation, the authorities will have two years from the issuance of the Interpretation to amend existing legislation or enact relevant laws in accordance with the ruling. The Court says it is within the discretion of the authorities to determine how to achieve the equal protection of the freedom of marriage for two persons of the same sex.  For example, the authority may revise the Marriage Chapter, enact a special chapter under Part IV of the Civil Code, or enact a special law.  If no such steps are taken within two years, two persons of the same sex will be allowed to have their marriage registration effectuated by the authorities in charge of household registration in accordance with the Marriage Chapter.  (Id.)

Bills on amending the Civil Code to legalize same-sex marriage have been pending in the Legislative Yuan. On December 26, 2016, draft amendments to the Civil Code that would legalize same-sex marriage were passed by the Legislative Yuan’s Judiciary and Organic Laws and Statutes Committee; the month before, the draft amendments had cleared the first reading.  They must be referred to a party caucus for further negotiations and must also pass second and third readings before they become law.  (Wendy Lee, Taiwan Takes Major Step Towards Gay Marriage As Bill Passes Committee Review, TAIWAN NEWS (Dec. 26, 2016).)