Responsibility and Judgment in a Muted 3-D Dialogue: A Primer on the Same-Sex Marriage Case in Taiwan

—Ming-Sung Kuo, Associate Professor of Law, University of Warwick & Hui-Wen Chen, Research Assistant, University of Warwick

The Taiwan Constitutional Court (TCC) made its long-awaited decision on same-sex marriage on May 24, 2017 (the Same-Sex Marriage Case). In this landmark ruling (JY Interpretation No 748), the TCC declares that the exiting provisions on marriage in the Civil Code, which essentially limits marriage to opposite-sex couples, unconstitutionally restricts gay people’s freedom of marriage under Article 22 (a catch-all clause on unenumerated fundamental rights) and violates the equal protection under Article 7 in the Constitution. In line with its long-established practice in judicial remedy, the TCC issues a suspend remedial order and holds up the declaration of unconstitutionality with respect to the existing provisions on marriage in the Civil Code until after two years from the date of its promulgation, allowing the parliament (aka the Legislative Yuan) time to hammer out the required legal framework for same-sex marriage through legislation. Anticipating that the required statutory framework might be stalled in the parliamentary procedures with the two-year clock running out, the TCC further decrees that should the parliament fail to legislate same-sex marriage, the existing Civil Code will then be extended to same-sex couples who wish to enter into marriage, despite the family structure institutionally conceived according to the model of opposite-sex marriage.

As has been widely noted in mass media around the globe, this ruling is ground–breaking in comparative constitutionalism and human rights law, indicating that the value of antidiscrimination is no longer part of the hegemony of Western constitutionalism but rather opens new frontiers in East Asia. It should be welcomed. Apart from its progressive, liberal ruling as summarized above, this case raises issues surrounding responsibility and judgement facing the court on the receiving end of legal cross-fertilization. We shall demonstrate how the TCC positions itself towards the question of political responsibility arising from a controversial judicial judgment like the Same-Sex Marriage Case through a 3-D dialogue.

The Same-Sex Marriage Case is not the first time the TCC was asked to adjudicate on issues concerning marriage. Rather, the TCC has referred to the family institution of marriage as created between a man and a woman several times in its case law. Thus, the TCC needs to enter into a dialogue with its own past to address the case law on the definition of marriage in the Same-Sex Marriage Case. As is all too familiar to law students, the court always gets around its own past rulings by distinguishing the present case from them without difficulty. Even in jurisdictions where no stare decisis doctrine exists, the court bolsters its reasoning by engaging with its own past rulings. Through this internal dialogue, the court can make its justification and reasoning more persuasive and thus enhance its legitimacy.

The TCC is no exception in the Same-Sex Marriage Case. In essence, it situates its past dicta in contexts outside the debate as to whether marriage is restricted to the union of one man and one woman. By means of the judicial technique of “distinguish,” the TCC frees itself of its own past to tackle the legal definition of marriage in the Civil Code and its constitutionality with a clean slate. Yet this is not the only pedigree that the TCC repudiates in this case. Rather, it is in the repudiation of its own reasoning pedigree that merits special mention.

Keen observers of the TCC have noted the long shadow the jurisprudence of the German Federal Constitutional Court (GFCC) and German public law scholarship in general have cast on the TCC’s reasoning style and method with respect to fundamental rights issues. In a word, proportionality analysis reigns. Surprisingly, the only reference to proportionality in the Same-Sex Marriage Case appears in the petitioners’ pleas. Moreover, the TCC does not even bother to respond to the petitioners’ proportionality-framed plea in its reasoning. In contrast to its express internal dialogue with its own past dicta, the TCC’s complete departure from its long-held proportionality analysis framework is not only another sign of repudiating its past but also a quiet rebellion against the parental jurisdiction of its jurisprudential pedigree. At first blush, this appears baffling to the TCC observers, suggesting the TCC’s consequentialist approach coloured with judicial decisionism. Yet, in light of both the TCC’s effort to distinguish the present case from its past rulings and the GFCC’s traditionalist attitude towards the definition of marriage, it transpires that the TCC must rebel against its jurisprudential pedigree, at least in the present case, to allow itself to bring same-sex marriage home. A mute rebellion preserves a veneer of fidelity and is certainly better than a bloody patricide.

The Second Dimension of Dialogue: Dialoguing with Peers without Naming

Comparative law has been the staple of the TCC’s reasoning. As David Law and Wen-Chen Chang point out in their important research, unattributed reference has been characteristic of the TCC’s adoption of comparative law examples in its reasoning.

Apart from the doctrinal framework, the TCC’s justification for declaring the Civil Code’s opposite-sex-only marriage provisions unconstitutional echoes the US constitutional debate. The TCC contends that the foregoing discriminatory provisions are based on sexual orientation, which is immutable in nature, and are subject to heightened scrutiny because of gay people’s political powerlessness as a “discrete and insular” minority. Sexual orientation-based discriminatory intent, immutability, and political powerlessness lay at the centre of the constitutional debate culminating in Obergefell.

Reference to foreign law has been considered central to judicial dialogue. Yet the TCC’s unattributed reference in the Same-Sex Marriage Case casts doubt on the dialogical character of such judicial practice as it obfuscates the source of its judicial reasoning and prevents itself from scrutiny in terms of its unprecedented method. As a result, it not only turns judicial dialogue into stealth emulation but also does disservice to its judicial peers in the dialogical community.

The Third Dimension of Dialogue: Pleading with the Political Sectors with a Club

In addition to the internal dialogue with its own pedigree and the extraterritorial dialogue with its international judicial peers, the TCC enters into another dialogue with its own domestic partners in the Same-Sex Marriage Case: the political sectors. Yet it is noteworthy that the TCC’s pleading with the political sectors does not fall in line with the model of dialogical judicial review. Instead of engaging itself with the political branch and civic groups in a co-equal institutional interaction as theories of dialogical judicial review suggest, the TCC pleads with a big club in the hands, which will enable itself to legalize same-sex marriage by judicial lawmaking.

As the TCC notes, the fight for marriage equality for gay people can be traced back to the 1980s when Taiwan was still under the martial-law rule.

Notably, with public support for same-sex marriage continuing to grow, the focus of the parliamentary debate has shifted from the question of legalization to how it could fit into the current legal system: Would special legislation governing same-sex marriage or civil partnership vis-à-vis the revision of the marriage provision in the Civil Code be another form of statutory discrimination? As the parliamentarians were embroiled in nasty legislative brawls and public opinion was divided, the TCC unexpectedly resolved to hear two petitions in November and December 2016, which set the stage for the Same-Sex Marriage Case. The TCC’s ruling on the admissiblility of the two petitions was a godsend to the brawling parliament as the TCC’s prospective ruling was expected to indicate the way out of the political standstill on same-sex marriage. With a sigh of relief, the parliament halted the parliamentary procedures, leaving the resolution of such a politically charged issue to the TCC.

In this light, the TCC’s suspend remedial order appears to reflect the TCC’s prudential decision to delimit the parliamentary decision on the statutory form and substance of same-sex marriage without dictating the way forward. Upon close inspection, however, the TCC’s suspension of the legal consequences of its declaration of unconstitutionality sounds more like a veiled threat than a sincere plea to the political sectors. Notably, among the various private member bills to legislate same-sex marriage was the one that would simply rewrite the current legal definition of marriage in gender-neutral language. This was regarded as the most radical version as it raised concerns how it could fit into the fundamental structure of family conceived according to the model of opposite-sex marriage under the Civil Code. Thus, the TCC’s decree that should the parliament fail to legislate same-sex marriage in two years’ time, the existing Civil Code will be extended to same-sex couples who wish to enter into marriage amounts to a court-mandated unilateral adoption of the most radical legal scheme on same-sex marriage, which has already been moderated. Holding this big club of behind its back, the TCC forcefully pleads with the political sectors to work out their differences to deliver on the constitutional promise of marriage equality to gay people. To its domestic partners, the TCC is not so much a co-equal dialogue partner as a convenient problem-solver that relieves themselves of the responsibility for same-sex by its own judgment.

Responsibility and Judgment

Same-sex marriage is a constitutional question. Yet its answer demands judgment and thus responsibility of the decision-maker, whether the decision is taken at the parliamentary floor or in the courtroom. It is through dialogue with all the interested parties that judgment and responsibility work in tandem. The Same-Sex Marriage Case indicates the Taiwan parliament’s aversion to judgment and cunning escape from responsibility. It is the TCC’s decision to step into the breach that deserves great applause. The TCC lives up to the expectation of making the difficult judgment by its Same-Sex Marriage Case.

Nevertheless, the very act of judicial judgment does not mean that the TCC has passed the test of responsibility. Rather, with no sword or purse, the court, the TCC included, can only be responsible by articulating its judgment with candour and thoroughness. The test of responsibility is even more demanding for the TCC, a court on the receiving end of legal cross-fertilization as it needs to address both its domestic partners and international peers.

As the foregoing 3-D analysis of the TCC’s dialogue indicates, the TCC falls short in the internal and extraterritorial dimensions. In the former it repudiates its own jurisprudential pedigree with no articulation; in the latter unattributed reference amounts to an emulation of its peers by stealth. Both dialogues become muted. The compromise required of the TCC to reach the conclusion of unconstitutionality may explain the mute character of its internal and extraterritorial dialogues. Yet turning to compromise for excuse only moves the court closer to the political fold. The TCC’s forceful plea to the political sectors in its intra-territorial dialogue illustrates this move. Whether the TCC’s club-swinging dialogue stance will mute the raucous parliament as well as the homophobic noises in the streets will be the ultimate test of the TCC’s judgment and responsibility. The Same-Sex Marriage Case is and will continue to be a landmark decision in the global effort to better fundamental rights.

Suggested Citation: Ming-Sung Kuo and Hui-Wen Chen, Responsibility and Judgment in a Muted 3-D Dialogue: A Primer on the Same-Sex Marriage Case in Taiwan, Int’l J. Const. L. Blog, May 26, 2017, at: http://www.iconnectblog.com/2017/05/responsibility-and-judgment-in-a-muted-3-d-dialogue-a-primer-on-the-same-sex-marriage-case-in-taiwan