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Premier Su Tseng-chang talking about the Juridical Interpretation No. 748 (Source: Facebook)

In 2017, the Juridical Interpretation No. 748 had deemed the prohibition against same-sex marriage unconstitutional. However, the Pro-Family Referendums (愛家公投, literally “Family-loving Referendums”) proposed by anti-gay groups such as Coalition for the Happiness of our Next Generation (下一代幸福聯盟) have been passed. According to the Referendum Act, the administrative institution has to propose a draft bill on the Special Bill (專法) that protects same-sex couples' rights in three months. Premier Su Tseng-chang released a video on Facebook a few days ago, stating that the name of the draft bill is “the Juridical Interpretation No.748.” Lu Chiou-yuan (呂秋遠), an attorney who has been supporting gay equality, states on Facebook that this is the best we can get at the moment, and he even makes a joke saying that “Welcome to love's grave.” 


Attorney Lu Chiou-yuan (Source: Facebook)

The statement is as follows: 

I think, this is the best we can get at the moment, although I have been wishing that same-sex marriage can be included in the Civil Code. As for my attitude towards the decision made by the Executive Yuan, I can only say what Lee Teng-hui said, disappointedly and helplessly, when he was visiting Singapore: “[it is] not good but acceptable.” Moreover, the LGBT community really has to appreciate what the President Tsai Ying-wen and the Justices have been working on, otherwise, we will never realize that same-sex marriage is possible.

I would like to answer a question first: why same-sex couples will have the rights to get married even though the Pro-Family Referendums have been passed? That is because the Juridical Interpretation No. 748 has said that homosexuals are to have the same rights of heterosexual marriage. What the Referendums last year won is that “the rights are part of a Special Law instead of Civil Code.” Therefore, the Administrative Yuan did respond to the Referendums, started working on a Special Law. However, since the Juridical Interpretation No. 748 has been passed, gay people can still get married after May 24th even without the Special Law. The draft bill is a compromise of human rights, the Constitution, and the results of the Referendums, returning all of the disputes to the constitutional interpretation.  

The draft bill is called “the Implementation of the Juridical Interpretation No.748.” I suppose most people do not understand the title of the bill. To put it simply, it is a compromise between the anti- and the pro-gay marriage. The supporters insist that the name of the Special Law has to be "Marriage Law,” and the other “Partner Law.” Therefore, according to the “objective” results of the juridical interpretation, the Administrative Yuan decided to name it “the Implementation of the Juridical Interpretation No. 748.” So, what is the Juridical Interpretation No. 748?

“The provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the purpose of living a common life. The said provisions, to the extent of such failure, are in violation of constitution’s guarantees of both the people’s freedom of marriage under Article 22 and the people’s right to equality under Article 7” [1]. 

Therefore, the bill is of course drafted according to the heterosexual marriage. It is Marriage instead of Partner. It is because the anti-gay groups do not recognize same-sex marriage no matter what, so the Administrative Yuan does not show its attitude towards the bill. It is more like “if you want to know whether it’s Partner or Marriage, go read the Interpretation No. 748 yourself.” Axiomatically, same-sex marriage is not a Partner Law since heterosexual marriage is not a Partner Law. 

The bill is quite simple. Generally speaking, it is to give the rights of heterosexual marriage completely to gay people. [2] There is only one difference: adoption is not allowed is the married couple and the child are not biologically related. Although it is very likely to be unconstitutional since heterosexual couples are allowed to form adoptive families without having to be biologically related to the child, there will certainly be different perspectives or amendment. Moreover, there are a lot of practical and realistic ways to achieve this goal. The point is, same-sex marriage and heterosexual marriage are  99.9% the same, which can make the long-awaiting gay people survive for a while. Therefore, after May 24th:

  1. Gay people can get married. And it is not Partner, but Spouse, Spouse, Spouse. (Legally it’s “both parties.”)
  2. Foreigners can get married with Taiwanese gay people, and share the same rights as in a transnational heterosexual marriage.
  3. No longer have to apply for an Identification of Partnership since his/her name will be on your ID card.
  4. Except for certain adoption laws, it is totally the same as the Civil Code: you can ask for the other's property when divorced and for the parental rights of the child.
  5. Enjoy the resource of medical care act as spouses.
  6. It will be the same as the heterosexual marriage when it comes to pension and insurance.
  7. Inheritance rights are the same as in heterosexual marriage.
  8. Do not have an affair of other people after getting married, otherwise, it would be a violation of spouse rights or adultery [3].
  9. The two people are under a mutual obligation to maintain one another.
  10. Lastly, please do envy us, as Taiwan is the first country in Asia where same-sex marriage is legal.

Regardless of the opposition of Beijing, same-sex marriage is finally passed. Welcome to love's grave. See you at your wedding after May 25th! You must be happy!  

Author: Lu Chiou-yuan. This article is reposted from Lu Chiou-yuan’s Facebook page. Please do not reprint or repost without the author’s permission.

 

Translator's Notes: 

[1] https://www.judicial.gov.tw/constitutionalcourt/en/p03_01.asp?expno=748

[2] What Lu Chiou-yuan wrote was “Generally speaking, it is to give the rights of heterosexual marriage completely to gay people” (大致上就是將異性婚姻擁有的權益完全給予同志), but actually it is more of “[…] to share the rights of heterosexual marriage completely with gay people.”

[3] In Taiwan, adultery is still a punishable crime (Criminal Law No. 239).

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