Taiwan’s landmark ruling on same-sex marriage highlights the gulf with mainland China

Jerome A. Cohen says the decision to legalise gay marriage is the latest in progressive top court rulings that highlight Taiwan’s accomplishments in achieving democratic freedoms under the rule of law, and boosts its standing among democratic allies

Reading Time:3 minutes

Same-sex activists cheer as they celebrate the landmark decision by the top court in Taipei, paving the way for Taiwan to become the first place in Asia to legalise gay marriage, on May 24. Photo: AFP

Published: 3:14pm, 29 May 2017Updated: 6:34pm, 29 May 2017

The decision of Taiwan’s constitutional court last week, invalidating a civil code provision prohibiting same-sex marriage, will have profound implications. Domestically, it will spur the executive and legislative branches to break the political stalemate over the legislative action necessary to amend the code, so as to conform to the constitution’s guarantee of social equality for all. They must now fulfil this constitutional responsibility within two years.

The constitutional court has taken similar actions in other controversial situations in recent decades. For example, its decisions played a critical role in ending the power that Taiwan’s police long exercised outside the regular judicial system, to imprison anyone they chose to declare a “hooligan”. The court also required that the government end an abuse similar to the notorious “re-education through labour” recently abolished, at least in form, in mainland China.

The decision highlights the sad contrast between Taiwan’s flourishing version of the rule of law, democracy and human rights, and those of the mainland

The much more controversial same-sex decision reminds me of the landmark US Supreme Court Brown vs Board of Education ruling, which in 1954 led a divided America away from segregated schools and other previously legal segregation practices. Although Brown, like last week’s Taiwan case, generated a major backlash from many conservative groups, it proved a major step toward social progress.

Yet implementing Brown proved to be a challenge, as will be the task confronting Taiwan’s political leaders in interpreting and applying the decision on same-sex marriage to reach a legislative consensus. Indeed, militant and politically powerful groups are calling for national referendums and constitutional amendments, in an effort to reverse the court’s ruling.

Of course, the same-sex decision highlights the sad contrast between Taiwan’s flourishing version of the rule of law, democracy and human rights, and that of the mainland, which has become ever more repressive.

Activists opposed to same-sex marriage protest outside the Judicial Yuan in Taipei, on May 24. Achieving legislative consensus to apply the constitutional court’s ruling within the stipulated two years will be a challenge for Taiwan’s political leaders. Photo: EPA

Taiwan’s landmark ruling on same-sex marriage highlights the gulf with mainland China

Jerome A. Cohen says the decision to legalise gay marriage is the latest in progressive top court rulings that highlight Taiwan’s accomplishments in achieving democratic freedoms under the rule of law, and boosts its standing among democratic allies

Taiwan’s gay marriage ruling forces Beijing to give it serious thought