Momentous but Bittersweet: Same-Sex Marriage in Taiwan

After a soggy wait in the annual Taiwan spring plum rain, the skies cleared in time for the over 35,000 strong crowd outside of Taiwan’s Legislative Yuan to celebrate same-sex marriage passing into law. A sea of rainbow bedecked humanity erupted in cheers, tears of joy and chants–including “first in Asia”–as the news broke of the law passing the third reading on the afternoon of Friday, May 17, 2019.

Supporters–and opponents–will remember this day: A long, hard and drawn out struggle culminated in a major battle victory for the pro-marriage equality side. But a battle won, not yet the war: Marriage equality remains elusive, and both sides still have battles yet planned.

A wobbly coalition wot won it

The ruling Democratic Progressive Party (DPP) was under considerable pressure in the run up to the vote. On the one hand, Constitutional Court Interpretation No. 748 made it clear that the legislature had to pass laws making marriage equality a reality for all by May 24: A failure to do so would have meant the court’s decision would have immediately taken effect on the civil code governing marriage.

That would have been a huge problem for the government. On one hand that would have left no clear legal guidelines for how to handle, create or modify the systems in place to register and administer marriages not between a man and a woman. In short, that risked serious administrative chaos (which may yet happen, there is only one week to implement the newly passed law). That challenge was compounded by the successful inclusion in the 2018 local elections of a referendum question “Do you agree that marriage defined in the Civil Code should be restricted to the union between one man and one woman?” by opponents of marriage equality. That referendum question passed with 72.5% of the vote, putting the DPP between the rock of the court ruling and the hard place of the referendum result (a situation, however, they could have easily avoided).

As if this weren’t enough, much of the party itself is deeply divided on the issue, with directly elected legislators–especially those from more socially traditional districts–facing serious blowback from their constituents and some legislators are personally opposed–for example for religious reasons (Taichung’s Huang Kuo-shu (黃國書), for example, explicitly mentioned he couldn’t support it because his church was opposed).

The DPP administration, using a fair bit of legal and political contortionism, put forward a bill that managed to skirt a lot of the problems, including getting around the legalities–but not the spirit–of the anti-marriage equality referendum by leaving the civil code untouched but creating a separate law. The legislature further modified it to remove specific mention of “same-sex marriage”, but ensured the right to register for marriage for all. Ker Chien-ming, the rough equivalent to the DPP party whip, said “In my experience this is the most difficult legislation in history.”

Finally, after doing everything they can think of to make the bill palatable, the DPP ordered their lawmakers to vote in favour, which with 68 seats in the 113 member chamber, should have ensured their party carried the bill by majority on its own. They failed, but by a very small margin: on several of the key articles in the bill only 56 DPP lawmakers voted the party line as ordered, one shy of a majority. However, those articles passed with 66 votes total. The entire 5-member caucus of the small New Power Party (NPP) voted in favor, which alone was enough to tip the balance. However, more significantly on several fronts, 7 members of the 35-member opposition Chinese Nationalist Party (KMT) broke ranks, defying their own party orders, and supported the the DPP’s bill. The KMT voters included, as expected, firm supporter Jason Hsu (許毓仁), but also some that weren’t so certain before–including the great-grandson of Chiang Kai-shek, Chiang Wan-an (蔣萬安), and Nantou lawmaker Hsu Shu-hua (許淑華), who most recently became well known for acting as a spokesperson during Han Kuo-yu’s (韓國瑜) successful populist run for mayorship of Kaohsiung City in 2018.

Bittersweet victory: the few sacrificed for the many

While many supporters began long awaited and deserved celebrations–which will no doubt last through the weekend–there were some shadows cast over the generally ebullient scene. One such shadow was fittingly and importantly acknowledged by supporters on site: a memorial to those lost over the years. Sadly, much of what galvanized unity and led to progress for the community was made in the wake of devastating tragedies, such as the suicides of Yeh Yung-chih and Jacques Picoux. Not all wounds are healed, far from it.

The biggest and most well known groups backing the marriage equality push were given a bitter pill to swallow by the DPP: Support our bill and same-sex marriage may become a reality, but it will fall short of full marriage equality. Specifically, two groups of people would suffer the consequences: those with adopted children, and those whose cross-border marriage hopes include a partner from a nation that does not recognize same sex marriage. The groups did in the end support the DPP’s bill, but with considerable discomfort for some in the movement. Some had to be sacrificed for the good of the many.

The reasons for these two exceptions to full equality weren’t made clear. Both perhaps were added intentionally to ensure that the bill wasn’t “perfect,” as a kind of symbolic nod to anti-marriage equality supporters. These will be challenged in the courts and some in the DPP might use that as a way to suggest “see, we’re on your side, we snuck in some things for you.” Perhaps, though if so it would be a foolish strategy, it will leave open the issues as something for the opposition to continue to mobilize around going into the next election–and almost no matter what they say, the DPP will not get the most solid anti-marriage equality supporters. Perhaps one or more of the nations that diplomatically recognize Taiwan expressed reservations, and with only 17 nations diplomatically recognizing Taiwan, that could carry weight. More likely is that the cross-national rule is a way to appease those who worry about fake marriages being used to bring in workers, which has happened in straight marriages in the past–especially from countries like China, especially lucrative workers like prostitutes–or even spies. Why this rule should be specific to same-sex marriages, however, is unclear if that is the case (unless it is simply easier politically to get away with than enforcing it on straight marriages, which is a distinct possibility).

Whatever the reason or reasons may be, an NPP proposal to remove this obstacle was voted down, supported only by their own 5-member caucus and the KMT’s Jason Hsu. The entire DPP caucus voted against.

The other disappointing part of the law specifies that while both parents can share custody of the biologically related child of one of the partners, same-sex parents cannot share custody of a non-biologically adopted child. This creates a perverse risk: If the parent of an adopted child becomes unable to take care of the child due to incapacitating illness or death, the other parent cannot retain custody of the child, doubly compounding a tragedy–taking away both parents instead of just one. In the best of circumstances this is an added stress and worry for the parents, a burden placed upon them without any clear or specified reason. Curiously, it also goes against traditional Taiwanese values, where adoption is considered a common traditional way to carry on the family line to ensure religious offerings continue to be made to honor the ancestors. As a result, this can also reach into the extended family of the parent denied legal custody rights, depriving the family of a nephew, niece or grandchild that they had grown to know and love as one of their own and potentially–according to traditional thinking–carry on the family name. An NPP proposed article addressing this was not allowed to come to vote.

Both of these exceptions are likely to be challenged in the courts. Neither were specifically mentioned in the constitutional court ruling, and as a Central News Agency (CNA) report put it: “Deputy Minister of Justice Chen Ming-tang (陳明堂) said since Constitutional Court Interpretation No. 748 does not protect the right of same-sex couples to have children and suggested that such a controversial issue is better dealt with incrementally.” However, both are clearly against the spirit of equality under the constitution that court called for–but it could take some time for these issues to wend their way through the courts.

Fuel for a KMT victory?

Opponents may also do what they can to challenge the law, though the constitutional court would likely overrule them–unless the composition of the court changes. Already some in the KMT are calling for overturning the law after the next election in January 2020, should they win.

Some are already commenting they expect that this law will effectively hand the KMT a massive win come next January. The thinking behind such calculations is a combination of the KMT’s landslide win in last November’s election, plus the significant majority that backed the anti-marriage equality questions on the referendum ballot held concurrently.

Some considerations, however, suggest caution in taking that line of thinking too far. First, by then for all but the most ardent anti-marriage equality supporters, the issue will be old news. That will depress motivation on this single issue. Another is that, unlike the local elections last year, other issues–like the relationship with China, the US and the economy–come to the fore in national elections, marginalizing single social issues and protest votes. Additionally, for those ardent anti-supporters, there may in January be a bigger counter turnout of pro-supporters, many of whom were disappointed (or disgusted) with the DPP’s handling of this and domestic issues.

It’s fair to say it will have an impact on the 2020 election, but it is also unlikely to be a major or decisive issue comparatively speaking. National identity and the economy will almost certainly be major and decisive issues, much more so than marriage equality.

(Feature photo from Presidential Office of Taiwan, CC BY 2.0)