March 24, 2017, a gay marriage judge released a debate on the Constitution. Applicant Chi Jiawei Before this day, waited 41 years, he said, comrade is a normal person, marriage is also right, the right person to do the right thing why not?
The Chancellor debated the Constitutional Court of the judiciary in a speech on the gazettal of same-sex marriage 9 o'clock this morning.
Outside, quite the same and against the camp are present, worried about the detonation of the conflict, a large number of police stationed outside the judicial yuan. 8 o'clock in the morning, Xu Xiuwen at the front door chanting slogans "The current law is unconstitutional!" Refuse to quarantine legislation! The claimant, Chi Jiawei, said he would strive for "the Civil Code must be used to protect the marriage of gay couples!" 」
The case of same-sex marriage was jointly applied by the Taiwan gay movement pioneer Chi Jiawei and the Taipei municipal government.
The origin of the event since Chi Jiawei in March 2013, with the male companions to the Taipei City Wanhua households, the registration of marriage was dismissed, after the administrative proceedings, the case 谳. In his view, the second chapter of the Civil Code, the marriage provisions "so that the same sex two human being can not establish a legal marriage relationship" is unconstitutional, and then put forward the interpretation of the Constitution. (Extended reading:"Chi Jiawei-wen" My 40 years, not yet to give up the time )
As the administrative authority of the Taipei Municipal Government Civil Affairs Bureau, in order to care about gay rights and interests, the current civil law relative to the provisions of the relevant laws and regulations, "marriage restrictions on the combination of a man and a woman" is a violation of the Constitution to protect the people's freedom, equality and other issues, also
In this Constitutional Court's verbal debate, the Chancellor invited six scholars to serve as experts: Professor Zhang Wenjin of Taiwan Dafa College, associate professor of law at Taipei University, Chen, professor of the School of political Dafa, Chen Huixin, associate Professor Liu Hongn, professor of law at Chung Hsing University, Li Huizong, Central police Professor Deng Xueren. The representative of the relationship institution was attended by the Minister of Law, Churtai, director of the Home Affairs Department, Zhang Yi, and Wang Xiemei, secretary of the Taipei Wanhua District Household Administration Office.
In the debate of Constitutional Court rhetoric, the two sides clashed several times against the constitutionality of civil law, and three experts believed that civil law was unconstitutional and should be amended into same-sex marriage. Another three people said that civil law is not unconstitutional and should be set up under the same sex partnership law. The two sides on the following four points, each step on different positions:
Is marriage a right?
the appraiser of the same-sex marriage law and the Minister of Justice believe that marriage is not a right, but a system. The birth of this system was originally designed only to recognize and regulate heterosexual marriage. Same-sex combination difficult to have the application of the law of the open marriage, must be a separate same-sex companion law.
The appraiser who supports the same-sex marriage law and the Taipei city government representative Counterattack ,
The Chief Justice explained that 22 of the Constitution does proclaim the right to marriage as a constitutional guarantee of the basic rights of the people and a part of the right of personality.
If you want to get married, you should have equal rights with heterosexual marriage, not another name, that your marriage is not called marriage, called a partner.
Second, marriage and childbirth, family indivisible?
critics of the same-sex marriage law argue that same-sex couples have different roles and functions than heterosexual marriages because same-sex marriages cannot form families through childbirth. Huanghongxia to inquire further about Taiwan's major law professor Zhang Wenjin:
"Why on earth would you think that you don't have to consider family issues today?" And why is it that many people pay attention to this? What do you think is not important at all and need not be considered? 」
Professor Zhang Wenjin, who supports the same-sex marriage law, responds that marriage and family are really closely related to the traditional social system, but not all families come from marriage. It can be seen from the reality that many families and children are not the product of marriage, such as adopted son, adopted daughter is not born by parents, but may be raised by parents, which is why marriage rights and family rights must be distinguished.
With regard to the definition of marriage, Zhang Wenjin mentioned that all the constitutional courts or supreme courts in the world must be forced to confront the nature of marriage directly when dealing with same-sex or heterosexual marriage, and the court cannot confuse the nature of marriage with other social functions that may be provided by marriage.
Zhang Wenjin added that the nature of marriage is not the reproduction of offspring and children, the traditional marriage system has never refused to recognize the lack of reproductive function of heterosexual marriage, and will not exclude 70 or 80-year-old two heterosexual marriage between the two. No matter what the potential function of marriage is, how much is less, can not be confused with the nature of marriage, which is the answer to all the Supreme Court and the Constitutional Court, the right to marriage and the right to the family to distinguish clearly.
Third, same-sex marriage should be interpreted by the Chancellor to the civil law. or decided by the legislature?
the experts who oppose same-sex marriage law say that because the Civil Code does not prohibit gay marriage, there is no violation of the Constitution, and there is no need for a judge to release the constitution. Will not create the dilemma of democratization (Counter-majoritarian difficulty).
in support of same-sex marriage, Zhang Wenjin, a professor of law at the University of Taiwan, cautioned that any constitutional court that judged the constitutionality of any legal system really needed to take into consideration the underlying democratic deliberations and values.
However, the contemporary constitutional system or liberal constitutionalism makes it very clear that the right of any person to be guaranteed freedom by the Constitution does not need to wait for the majority to have a consensus before a constitutional claim can be made.
It is noteworthy, Professor Zhang Wenjin, that all countries in the world that adopt a same-sex partnership are legislated by lawmakers, and that all constitutional courts, which have explained the same-sex marriage to the Supreme Court, seek a conduit for marital rights.
Professor Zhang Wenjin asked the judges to refer to the South African Constitutional Court's practice: to consider all kinds of gender, sexual orientation, according to the Constitution of the people's equal right to marry, clearly determine the right to equal marriage rights and freedoms must be guaranteed by the Constitution.
As for the contents of the specific system guaranteed by the Constitution, the legislator is given a year's time to form the law for the legislators. If the legislator cannot form a law of equal freedom of marriage and Rights, a year later, the contents of the Chancellor's interpretation must be automatically enforced. South Africa's approach, which is to mitigate the mechanisms that the so-called democracy and the Constitution may cause conflict.
The same sex marriage may affect social order and public interest, causing social impact?
Churtai, a legal minister who opposes same-sex marriage law, argues that a system of same-sex marriages, if implemented rashly, would have a huge impact on society, and that the impact was greater in the south-central region. Churtai said that there was an elder asked him:
Chinese New Year when the family ancestors, the same marriage in the future ancestral tablet to write "test or 妣 妣"? Marriage, it should be said that both spouses are daughter-in-law and son-in-law? Do you want to call the bride and groom?
He also mentioned that marriage cannot be incompatible with religious freedom, contractual freedom and individual freedom. He cited three examples: can the clergy refuse to marry the comrades, and whether they can refuse to offer a church place to hold gay weddings? Has a touring car driver refused to march in Taipei with a married person so that the freedom of contract can be respected?
The statement by the Minister of Law suggests that such discrimination against gay identity, and even the deprivation of rights, is also a form of freedom which, once deprived of such discrimination, can have a knock-on effect on society. But we want to ask, is such a shock not exactly the change we expect?
Liao Yuanhao, who supports the same-sex marriage law and the Taipei city government representative, said that conflict based on misunderstanding should be resolved rather than condoning misunderstanding and banning gay marriage.
Same-sex marriages hurt heterosexual marriage? In fact, same-sex marriage hurts religious freedom? And not. Each religion has its own norms of behavior and the definition of marriage, God to God, Caesar to Caesar. The morality of homosexual immorality will enter the world? We have to think, to enter the marriage of comrades, is the recognition of loyalty obligations! How could it be destroyed? Instead is the consolidation.
Professor Liao Yuanhao said, why is there so much misunderstanding in society? Because this is a value-sensitive issue, it needs to be discussed, but although we are a democratic society, but not every place is suitable for reason, in the legislature or the street, can only show strength.
Where is the place to argue? It is the judge who can reason, discern, and know the true facts.
We stood with Professor Liao Yuanhao and asked the Chancellor to clarify the rationale.
The interpretation of the Constitution is a rational and speculative mechanism in the democratic system, a democratic system which allows the judges to speak clearly in the midst of the chaos. Please do not say same-sex marriage only belong to the legislative level, referred to the Congress to resolve, from 2006 Michen to push the same sex marriage bill to now, more than 10 years, exactly how many decades of a person's life can wait? In this connection, we are more anxious for the judges, because this is not only a matter of comrade, but also the protection of gay rights and interests, and to all those who continue to worry about the need for misunderstanding and fear of harm.
We earnestly hope that the constitutional law of the Chief Justice is unconstitutional, and we want gay marriage, but also in order to establish a rational dialogue society, for Taiwan to achieve a true equality and justice of the future.