Supporters of same-sex marriage outside the Legislative Yuan in Taipei, Taiwan on the day of the Court decision. (CHIANG YING-YING/AP PHOTO)
Taiwan’s Constitutional Court issued a groundbreaking decision yesterday in favor of same-sex marriage (the decision, its summary and an English press release prepared by the Court can be found here).
This decision will have profound implications in many respects, as others have recognized in various fora. Domestically in Taiwan it will spur the Executive and the Legislature to fulfill their constitutional responsibilities within the two-year time frame prescribed by the Court. The Constitutional Court has done this before in controversial situations. For example, as Margaret Lewis and I described in our 2013 book (CHALLENGE TO CHINA:HOW TAIWAN ABOLISHED ITS VERSION OF RE-EDUCATION THROUGH LABOR), the Court’s decisions played the critical role in ending the power of Taiwan’s police arbitrarily to imprison “hooligans” outside the regular judicial system. The Court stimulated the Executive and the Legislature to finally end an abuse similar to “laojiao” on the Mainland.
Yesterday's much more controversial decision reminds me of the landmark US Supreme Court decision Brown v. Board of Education that in 1954 led a divided American society away from segregated schools and from other previously legal segregation practices. Yesterday's decision will generate backlash in Taiwan and elsewhere but it is a major step toward social progress everywhere.
Of course, the decision vividly highlights the sad contrast between Taiwan’s version of the rule of law, democracy and human rights and the Mainland’s, which has become ever more repressive. I think the decision’s positive impact on China as well as other countries far outweighs any modest additional, short-run, adverse impact on cross-strait relations. The Mainland’s strict censorship and manipulation of the media will not entirely prevent people from knowing about the decision and its meaning. Although many in the Mainland may not welcome the decision, China traditionally has been more open to same sex relations than more Christian-dominated countries, and the more educated classes will appreciate not only the wisdom and fairness of the decision on the merits but also the significance of the role of the judiciary in a genuine government under law country. It is a sobering fact that 68 years after its establishment the People’s Republic of China does not have a special constitutional court, does not permit its regular courts to apply constitutional protections and has failed to make significant use of the Standing Committee of the National People’s Congress for this purpose, even though the SCNPC is the institution authorized to apply the PRC constitution.
More broadly, this decision is a shot in the arm for Taiwan’s standing in the world, reminding people of the immense progress it has made, although a Chinese civilization, in instituting legal protection for human rights, judicial independence, separation of powers and all the other “Western values” openly condemned on the Mainland at present. Until now Taiwan’s establishment and implementation of the major international human rights covenants has been too little recognized abroad. Yet its national security and survival depend on the willingness of the United States, Japan and other democratic countries to continue to guarantee it protection against the increasing threat of military action by China, and that willingness will turn in large part on the extent to which those countries are aware of Taiwan’s accomplishments in achieving political freedoms.