The geopolitical stakes of Taiwan’s marriage case

A Taiwanese lower court meets Tuesday to formally decide whether to send a same-sex marriage suit to the island’s Constitutional Court. This is new territory for the Taiwanese legal system, but some experts say momentum is on the side of same-sex marriage advocates.

“This time is a real turning point,” said Chang Hong-Chen, an expert in Taiwan’s sexuality law who is close to the Constitutional Court.

While it’s far from certain what the court will decide–if it even agrees to take the case–the very fact that it’s being treated as a serious legal question is a major step forward.

Taiwan’s larger geopolitical interests are one important factor on the side of the couple suing for recognition. Taiwan ratified two major United Nations human rights treaties in 2009 and is in the process of bringing its laws into compliance with these standards. This process is about more than protecting the rights of its residents–it’s part of the battle with China over its diplomatic status.

Only a handful of nations recognize Taiwan as an independent nation, since the China still claims Taiwan to be part of its territory. If Taiwan can prove itself to be a model global citizen, some Taiwanese leaders hope, it will be able to make a stronger case for greater participation in the international community.

“Our government likes to play the international human rights card,” said Chen Yi-chien, a professor at the Graduate Institute of Gender Studies at Shih Hsin University.

While same-sex marriage rights aren’t specifically protected by international treaties, the focus on improving Taiwan’s human rights record has created an opening for same-sex marriage advocates to promote their case. It comes at a time that courts in other countries are increasingly concluding that marriage rights are human rights that deserve protection.

“This is just the right moment for the issue to be discussed from a legal perspective,” Chang said. “People in Taiwan and the justices of the Constitutional Court, they take foreign jurisprudence very seriously.”

But Chen isn’t holding her breath for a sweeping ruling establishing same-sex marriage rights; that might be too big a leap for Taiwan to take in this case. But she does think that there’s a good chance that the court could issue a ruling that would advance the cause even if it doesn’t immediately create a right to same-sex marriages.

“They are not going to say the current law is unconstitutional, but we’re hoping they will say … something in-between,” she said.

From her point of view, however, legal recognition is a secondary goal. If all this case does is to open serious debate on the question of same-sex couples rights, it will still have been an important achievement.

The goal, she explained, should be to “to use this kind of legal approaches to make society aware that there is a problem and how should we discuss… the issues of LGBT [people].”

The international context of this case means that the decision of the United States Supreme Court in the pending marriage cases could have a strong effect on Taiwan’s case. A broad ruling in favor of same-sex marriage rights could up the pressure on Taiwan’s justices, while a ruling against marriage rights could disuade the justices from taking the case at all.

“American law has a great deal of influence on this issue,” Chang said.

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