The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light

78 Pages Posted: 20 Sep 2017 Last revised: 11 Jan 2019

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Hui-Wen Chen

University of Warwick

Abstract

The Taiwan Constitutional Court (TCC) recently issued a landmark decision in Interpretation No. 748 (the Same-Sex Marriage Case), declaring the definition of marriage as a gender-differentiated union of a man and a woman under the Civil Code unconstitutional and setting the stage for Taiwan to become the first in Asia to legalize same-sex marriage. This decision has been compared to Obergefell v. Hodges. However, reading Obergefell in the broad context of the gay rights movement and the role of judicial review in Taiwanese constitutional politics, we challenge this analogy. Due to the discrepancy between the social movement and the law in the fight for constitutional rights for gays and lesbians in Taiwan, the Same-Sex Marriage Case is Taiwan’s Brown v. Board of Education moment in her constitutional law and politics. To make sense of the law and politics of the Same Sex Marriage Case, we evaluate its political context and the text and style in its reasoning. We observe a discrepancy between law and politics in the pursuit of the constitutional rights of gays and lesbians in Taiwan. The rise of same-sex marriage to the top of the antidiscrimination agenda resulted from the continuous effort of gay rights activists, while the TCC watched this movement from the sidelines until the Same-Sex Marriage Case. This case thus mirrors Brown in two respects. First, the role of the TCC has been publicly questioned after its Brown-like contentious decision on the issue of same-sex marriage. Second, the text and style of the Same-Sex Marriage Case is evocative of the exceptional brevity, managed unanimity, and scientific rationality in Brown. Echoing the Brown Court, the TCC attempts to manage judicial legitimacy through judicial style, while anticipating the political reaction to its ruling in light of its historic intervention in gay rights issues by tackling the fundamental question of same-sex marriage head-on.

Keywords: Comparative Constitutional Law, Taiwan Constitutional Court, Brown v. Board of Education, Obergefell v. Hodges, Same-Sex Marriage, Gay Rights, Social Movement, Judicial Review, Constitutional Politics, Judicial Legitimacy, Judicial Style, Anti-Discrimination Law

Suggested Citation

Kuo, Ming-Sung and Chen, Hui-Wen, The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light. Columbia Journal of Asian Law Vol. 31, pp. 72-149, 2017.. Available at SSRN: https://ssrn.com/abstract=3033677

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

Hui-Wen Chen

University of Warwick ( email )

Gibbet Hill Rd.
Coventry, West Midlands CV4 8UW
United Kingdom

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