On November 18, 2016, the New York Times article titled “Taiwan May Be First in Asia to Legalize Same-Sex Marriage” discussed the current situation in Taiwan following large demonstrations in Taipei that attracted hundreds of supporters and opponents for same-sex marriage. In fact, Kaohsiung, a major city in the south of Taiwan has already begun its official recognition of same-sex partnerships by rolling out “partnership ID cards”, which is thought to allow the inclusion of same-sex partners in making emergency medical decisions. Taipei, the capital city of Taiwan is also expected to follow suit.
In what many considered to a be much-awaited decision by the US Supreme Court in 2015 that ruled 5-4 that same-sex marriage is a nationwide legal right, Obergefell v. Hodges 576 US _ (2015) effectively prohibited the 14 states from continuing their bans on same-sex marriage. Justice Anthony Kennedy writing for the majority stated in the decision that “no longer may this liberty be denied”, and that the plaintiffs asked “for equal dignity in the eye of the law”.
In the above case, the nine justices had to consider whether the US Constitution Fourteenth Amendment required states to license same-sex marriages; and whether the Fourteenth Amendment required states to recognize same-sex marriages legally licensed and performed in another state. The case arose from groups of same-sex couples who sued their state agencies in Ohio, Michigan, Kentucky and Tennessee to challenge the constitutionality of state bans on same-sex marriage, or the refusal to recognize same-sex marriages performed in jurisdictions that allowed so.
It was argued that the states’ statutes had violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the US Constitution, which respectively provided that no state shall deny to any person within its jurisdiction “the equal protection of the laws”, and that no one shall be “deprived of life, liberty or property without due process of law”.
Judicial precedent in the US stated the right to marry is a fundamental liberty inherent to the idea of individual autonomy, which also protects the intimate association between two people, as well as to safeguard the children and families when they are afforded legal recognition. The Court in Obergefell held the Due Process Clause guarantees the right to marry as one of the fundamental liberties, which applies in the same manner to both same-sex and opposite-sex couples. There is no difference between a same-sex and opposite-sex union with respect to the above principles, thus the denial of same-sex couples the right to marry violates the Due Process Clause. Moreover, since marriage is a fundamental right traditionally addressed through both limbs of the Fourteenth Amendment, the Equal Protection Clause was also held to guarantee the right to marry to same-sex couples as the denial would deny them equal protection under the law. In passing, the Court held the First Amendment protects the rights of religious organizations to adhere to their principles, but states are no longer allowed to deny the right to marry to same-sex couples on the same terms as opposite-sex couples.
Chief Justice Roberts in his dissent argued that the Constitution does not address same-sex marriage, and thus falls beyond the powers of the Court to decide whether the states must recognize or license same-sex unions. It should be up to the individual state legislatures to decide based on the will of their electorates. Although the Constitution and precedents protect the right to marry, the Court cannot overstep its boundary to engage in judicial policymaking.
Furthermore, the precedents only strike down unconstitutional limitations on marriage and illegal government intrusions, but there is no support for forcing states to alter their respective definitions of marriage. The dissent also argued that the majority relied on the overly expansive reading of the Due Process and Equal Protection clauses that disregarded the role of the courts in the democratic process by taking the power from the legislature and into the hands of the Court. Justice Thomas for the dissent also argued that the majority infringed on religious freedoms by legislating from the bench.
Just as the US had endured decades of trials before culminating into the above decision, Taiwan has yet to fully legalize same-sex marriage despite its various jurisdictions allowing the registration of same-sex couples as partners with limited rights. Furthermore, supporters and opponents for same-sex marriage continue to debate over whether same-sex marriage is a basic human right that ought to be protected by the government, as well as whether it is a personal right and autonomous choice that do not need the intrusion or voting from other members of the society.
Taiwan is considered to be relatively friendly towards the LGBT communities compared to parts of the Middle East and Asia that continue to ban same-sex intercourse. However, same-sex couples in Taiwan with surrogate children currently do not have equal legal rights to custody. This places one partner completely out of the picture when it comes to vital decisions related to the child. Similarly, practical and legal aspects of asset management, medical benefits, and wills and estates persist to be major concerns for same-sex couples.
In early 2016, Taiwan’s legislators drafted three bills to legalize same-sex marriage with proposed welfare, joint property and custody rights. The legislators began their deliberations on November 17 and are hoped to cast a final vote by the end of this year. Taiwan would join 20 other countries in the world should it reach a decision in favor of legalization. Please follow this space if you are interested in understanding how this may affect your rights and the ensuing legal developments.