Another important point of view in the first marriage-and-divorce case in Asia is to penetrate the seemingly rational discussion to see what legal language and rhetoric packaging may be used in discriminatory legislation, and one by one to break it.
The first same-sex marriage in Asia was published by the Taiwan gay movement pioneer Chi Jiawei and the Taipei municipal government on behalf of the joint application. (Extended reading:"Chi Jiawei-wen" My 40 years, not yet to give up the time )
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. Chi Jiawei that the second chapter of the civil law of the relatives of the marriage provisions "so that the same sex two human being can not establish a legal marital relationship" is a violation of the Constitution, and then proposed the interpretation of the Constitution claims.
On March 24, the Chancellor debated the Constitutional Court of the judiciary on the release of a constitutional case against same-sex marriage. From nine o'clock in the morning to one o'clock in the afternoon, with the exception of the 20-minute intermission, for nearly 3.5 hours, the judges, the claimants, the appraiser and the Minister of Justice, Churtai, debated the constitutionality of the existing civil law. Is it possible that the other gay couples act is unconstitutional?
The whole field of attack and defense can be divided into two groups: first, the civil law is unconstitutional, civil marriage provisions should be revised to include same-sex marriage, the second is that the civil law is not unconstitutional, to support the other gay partner law. (same field Gayon:"Same-sex marriage interpretation of the Constitution case" to the judge: the same marriage can not wait, we have no next 10 years )
The law must be backed by value judgments, this time we do not cut from the legal concept, but Peel (sound) The abstruse legal lexicon, penetrate the seemingly rational discussion, and go to the ideology behind the gay-law argument, to understand what legal language and rhetoric packaging may be used in discriminatory legislation, and one by one to break it.
Who says childbearing is a function of marriage?
In discussing the nature of marriage, Huanghongxia, expert Li Huizong, Professor Chen, Professor Deng Xueren, are all based on the same-sex infertility, unable to achieve the reproductive function of marriage, that same-sex marriage should be considered and heterosexual marriage should be separated from the special law.
Professor Li Huizong said:
"Marriage does not aim at procreation, but it usually has this function, which is a natural function of man." On this issue can be used as a basic reason for differential treatment (comrades). Because marriage is often combined with the family system, marriage has the important function of continuing the next generation, inheriting culture and educating children, and this can be used as a reason for differential treatment. 」
Huanghongxia asked the expert, Professor Zhang Wenjin:
"Don't everyone have a parent?" he said. Since parents are born, we naturally have families, how can marriage and family can be divided completely? Why on earth would you (Professor Zhang Wenjin) think that the right to marriage does not have to take into account family issues? And why is it that many people pay attention to this? You don't think it's important. No need to consider, where is the reason? 」
We should further say that not all families come from marriage (such as adopted children, adopted sons or daughters) and that marriage does not aim at the birth of the next generation. The possibility of procreation, as a reason to deprive comrades of equal rights to marriage, not only harm the gay community, but also all those who want to be pregnant, or do not want to give birth, as if to tell them that the function of marriage is there, unable or unwilling to meet the reproductive function of the person is flawed.
Since women's bodies are not machines, they can not be a function of birth.
Birth can occur within a marriage, not through marriage, or after the dissolution of a marriage. Childbearing should be a choice for women and only for their own choices.
Is it not in the Constitutional Court to hold high the sexual oppression of women in order to oppose the same marriage and to consider procreation as a function of matrimony? The oppression of the female body to suppress the gay rights and interests, heterosexual married family Imagine how can this be overbearing?
The only function of marriage is to guarantee the right of two people to live together through contract and social system.
Marriage, whether it is the essence or function, should not reproduce, but the two people who are determined to walk together on the road of life, to guarantee the rights of two people by marriage system, and to form a basic social organization unit to stabilize a single spouse. Gay marriage makes us look directly at the essence of modern marriage and force the legacy of birth oppression left in contemporary marriage.
Who said that the premise of marriage is not in conflict with other laws?
In the interpretation of the debate, the Minister of Legal Affairs, Churtai, and Professor Deng Xueren, have also misled the public by discussing the legislative technique of the problem.
Law Minister Churtai that if the marriage is feasible, it will not only affect the civil law, but will impact the relevant laws. He cited the controversial, early abolition of the criminal law of adultery as an example, said that "the current adultery only to regulate the sexual behavior between the opposite sex, homosexual sex only as obscene." "Therefore, when the marriage is lawful, adultery will face a crisis that cannot regulate" marital adultery.
The expert Professor Deng Xueren, on the issue of fertility, carries on the technical warfare of the branch of the micro-tip:
For example, in the case of female marriage, does the child born of the affair have a presumption of marriage? Or do we exclude him from marriage? Is it also a form of discrimination? If the female marriage provides the uterus, one side provides the egg, can you prove it? The legal and technical considerations should not be resolved in the same way, and the future will be applied in a special law, and is not intended to distinguish between this heterosexual marriage or same-sex marriage? But we have to improve the planning of different nature, I think such legislation is responsible legislation, thank you.
You are a minister of the law, and the major legal departments of the appraiser, knowing that the orientation of the Constitutional Court is from the constitutional level to examine the current civil law, gay couples law is unconstitutional, but deliberately will discuss the introduction of legislative technical aspects. Ignoring the constitution above the law, only by waiting for the constitutional equality principle to be released, can we enter into the technical operation of the legislator, and we must keep the value judgment of the Constitution. It is a very absurd mud tactic to attempt to override the constitutional judgment with technical considerations, which will affect other decrees and cause many inconveniences.
We should further say that if the legal guarantee of same-sex marriage will conflict with other existing laws, it would only mean one thing--there are still many laws in conflict with the value of the Constitution in our current laws and regulations. We have to look at how many laws violate the constitutional right to equal freedom.
The legislation of same-sex marriage will be the comprehensive body-health of the constitutional equality right which is necessary for our country's law.
Who says gay marriage is an impact on social consensus, and that the law has to be consensus?
The word "consensus" is so brutal, the law is not more than the number of people, fist big? If so, civilized countries do not need the law to live according to consensus. In order to avoid consensual violence, in a free constitutionalism country, the right of any person to be guaranteed freedom by the Constitution does not have to wait for the majority to agree on a constitutional claim.
When it comes to the consensus on "marriage", it is more appropriate to say "consolidation" than to impact marriage. It is the comrades who have a consensus on marriage that want to go into marriage. As Professor Liao Yuanhao said in the debate, "the comrades who enter into marriage are those who recognize the obligation to be faithful!" How could it ruin the concept of marriage? Instead is the consolidation. 」
At the end of the spectrum, marriage does not cause much change or impact on existing marriages, but at best expands the scope of application of the marriage system rather than breaking the value of the existing marriage.
Before the marriage was passed, the society already had many same-sex couples and even families, forming (legally not guaranteed) factual marital status. Another partner law, so that two of people who have a factual marital status, in the form of "companion", but only to impact the social understanding and definition of marriage. Because according to the principle of equality of the Constitution, if heterosexual is guaranteed by the marriage system, same-sex marriage should not be treated differently, and if the same sex has a companion law, heterosexual also!
Gay marriage helps us to clarify the nature of marriage--two of people are willing to support each other through contract, not for reproduction, but for living together. The consensus of marriage is the willingness of two of people to be together. Churtai minister, Professor Li Huizong and other people mistakenly put the marriage consensus on the "one Man and one woman." Frankly, the impact of gay marriage, not marriage, nor family, but "a man and a woman", "gender-sensitive" heterosexual hegemony.
In this connection, the creative meaning of the same marriage adds another: breaking the traditional hegemony of heterosexual, break the two-yuan opposite gender framework.
When the anti-camp continues to be "traditional value", "Reproductive function", "One Man and one woman" constantly jumping needles, then we have to say again: Marriage should be married, if there is conflict with other decrees, we should carry out whether the existing laws and regulations are in line with the constitutional principle of equality of the general inspection; marriage should be married, this is to break the heterosexual hegemony, The necessary means of dualistic opposition to the gender framework; marriage should be married, because this is a law to govern the equality of the implementation of the right.