Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally?
9 Pages Posted: 17 Jan 2020
Date Written: December 21, 2019
Since 2013, Hong Kong scholars have been considering that it is open for the courts of the Hong Kong Special Administrative Region of the People's Republic of China to recognise a right to marry for same-sex couples. The judicial recognition of the entitlement of a party to a same-sex marriage celebrated outside Hong Kong as "spouse" for the purpose of an immigration policy, civil service benefits and tax legislation by the Hong Kong Court of Final Appeal in two cases 2018 and 2019 has raised the prospects of judicial recognition of same-sex marriage for Hong Kong couples. This paper examines the recent direct legal challenges against Hong Kong's marriage legislation's restriction of marriage to "the civil equivalent of a Christian marriage between a man and a woman" and the consequential absence of a form of legal recognition of a same-sex relationship on par with marriage in light of the differing considerations on the part of Hong Kong's senior judges of the appropriate approach to resolve such a challenge. Particularly, it critiques the "lex specialist" approach adopted by the Court of First Instance in its judgment dismissing the first of these legal challenges by holding that since both the Basic Law of the Hong Kong Special Administrative Region and the Hong Kong Bill of Rights Ordinance (Cap.484), the instruments setting out the scheme of protection of human rights in Hong Kong, protect the right to marry of Hong Kong residents in particularly (and narrowly), other substantive protection, say, by invoking the principle of equality before the law and non-discrimination also enshrined in those instruments, was thereby precluded.
Keywords: Hong Kong, Basic Law, Human rights, Non-discrimination. Right to marry, Same-sex marriage, lex specialis
JEL Classification: K11, K33
Suggested Citation: Suggested Citation