First In Asia: Taiwan Constitutional Court Legalizes Same-Sex Marriages, Amendments To Be Made Within 2 Years

Apoorva Mandhani
25 May 2017 8:31 AM GMT
First In Asia: Taiwan Constitutional Court Legalizes Same-Sex Marriages, Amendments To Be Made Within 2 Years
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Taiwan’s Constitutional Court on Wednesday paved way for the island to become the first place in Asia to legalize same-sex marriage, after it struck down the Civil Code’s definition of marriage as being only between a man and a woman.

The Court has now directed the authorities concerned to amend or enact relevant laws in accordance with the ruling, within two years. If the legislature fails to pass an amendment or legislation in the next two years, same-sex couples “shall be allowed to have their marriage registration effectuated at the authorities in charge of household registration,” a press release stated.

The Petitions before the Court had challenged the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which did not allow same-sex marriages, as being violative of both the people’s freedom of marriage as protected by Article 22 and the people’s right to equality as guaranteed by Article 7 of the Constitution.

The Court noted that the Petitioner Chia-Wei Chi had been appealing to the legislative, executive, and judicial departments for the right to same-sex marriage for the past three decades. Commenting on the nature of challenge before the Court, the press release said, “This case involves the very controversial social and political issues of whether homosexuals shall enjoy the equal protection of the same freedom of marriage as heterosexuals. The representative body is to enact or revise the relevant laws in due time. Nevertheless, the timetable for such legislative solution is hardly predictable now and yet these petitions involve the protection of people’s fundamental rights. It is the constitutional duty of this Court to render a binding judicial decision, in time, on issues concerning the safeguarding of constitutional basic values such as the protection of people’s constitutional rights and the free democratic constitutional order.”

The Court observed that reproduction is not an essential element of marriage, and therefore, disallowing people of the same sex to marry, for the reason of their inability to reproduce, “is a different treatment having no apparent rational basis.” Furthermore, it noted that the basic ethical orders built upon the existing institution of opposite-sex marriage will remain unaffected by the decision.

The Court thereafter ruled that a person eligible to marry shall have the freedom to marry, which includes the freedom to decide “whether to marry” and “whom to marry”. This decisional autonomy, it said, was a Fundamental Right to be protected by Article 22 of the Constitution. It further ruled that Article 7, which prohibits discrimination, shall also prohibit differential treatment based on classifications such as disability or sexual orientation.

Read the Press Release here.

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