24 May Taiwan’s Constitutional Court Rules in Favor of Same-Sex Marriage, and Cites U.S. Supreme Court (But Not For Law)
In a first for Asia, Taiwan’s Constitutional Court ruled today (with two dissents) that Taiwanese law limiting marriage to a man and a woman violated the Republic of China’s constitutional guarantee of “equality before the law.” (Taiwan is home to the exiled Republic of China government, and its constitution is an amended version of one adopted on Mainland China back in 1946).
I don’t claim to be an expert on the Taiwan-ROC Constitution.* I also haven’t read the decision very carefully, and do not purport to offer any deep analysis of the decision here. But to build off Anthea’s great post from Monday, I will note that the decision (in Chinese here) cites the U.S. Supreme Court’s decision in Obergefell v. Hodges.** But it doesn’t cite Obergefell’s legal analysis on the relationship between same-sex marriage and equality, which actually is quite on point. Rather, the Taiwan court cites Obergefell in footnote 1 as one of several sources for the proposition that sexual orientation is an immutable characteristic. (In a somewhat ironic note, the decision also cite findings of the World Health Organization, whose governing body just recently excluded Taiwan from participating as an observer).
I think there are many good reasons to cite, or not cite, foreign court decisions when interpreting a domestic constitution. I can see the Taiwan-ROC Constitutional Court, which is still a relatively new institution, wanting to cite foreign authority to bolster the legitimacy of its decision. But I can also see that the Court would want to make this decision as domestic as possible to ward off the very substantial domestic criticisms that are already being made of the results of this decision. The Taiwan-ROC Court made a reasonable choice to cite the U.S. Supreme Court in a limited and non-legal way. I don’t fault it (or the U.S. Supreme Court) for avoiding foreign and international legal authority. No doubt there was a jurisprudential influence from the U.S. and other jurisdictions in this decision, but I wonder if it was in any way decisive.
There are, of course, international relations implications from this decision. Taiwan, under the current sort-of-anti-China governing party, is carving an international image for itself as a socially progressive haven in a relatively socially conservative Asia. This can’t hurt Taiwan as it continues to seek ways to maintain its separate identity from China in the eyes of U.S. and European elites. The mainland has a similar “equality before the law” provision in Article 33 of its Constitution as the one that is the main basis for the Taiwan court decision, but I wouldn’t count on any action on that front in the near future.
*But I did have noodles in Taipei with a member of the Taiwan Constitutional Court not two weeks ago and he gave me no clues about this pending decision.
**My original post actually got this wrong, claiming there was no citation at all. Sorry for the confusion. But my larger point stands.