Author: Timothy S. Rich
Posted on: The Diplomat, May 26th, 2017
The Constitutional Court’s decision is just one step in the longer process of legalization.
Taiwan is poised to be the first Asian country to legalize same-sex marriage as Wednesday Taiwan’s Council of Grand Justices (Constitutional Court) declared that the country’s current Civil Code on marriage laws, which limited marriage to heterosexual couples, is unconstitutional.
Few countries have legalized same-sex marriage through the courts — the United States and South Africa being notable examples — with legalization most commonly coming through legislatures. In this case, the Court requested that the legislature amend the Civil Code within two years, while also taking the unusual step of producing a Chinese and English language press release.
With the Democratic Progressive Party (DPP) capturing not only the presidency but their first legislative majority in January 2016 and their party platform including support for legalization, expectations ran high. However, by mid-year, President Tsai Ing-wen appeared to de-emphasize her support for legalization, later meeting with opponents of legalization. Meanwhile, by December a first reading of a draft bill to amend the civil code on marriage passed the legislature, faring better than efforts in 2005 and 2013.
Public opinion also shows a general trend in Taiwan toward support for same-sex marriage legalization, comparable to patterns seen in democracies outside of Asia. For example, according to the World Values Survey, nearly three-quarters of Taiwanese respondents (73 percent) in 1995 did not want homosexuals as neighbors, but by 2012, this dropped to 41 percent. A similar drop was evident among the percentage of respondents stating that homosexuality was never justifiable (64 percent in 1995, 24 percent in 2012). Similarly, my earlier research found that a slim majority of Taiwanese surveyed in 2012 (52.5 percent) believed that same-sex marriage should be legal. Furthermore, until the last two years, there was remarkably little organized opposition to legalization, although after Tsai’s election, opposition groups largely comprised of Christian conservatives have attempted to block legalization.
While support is clearly increasing, how same-sex marriage is presented going forward will likely further impact perceptions. My research with Ashleigh Cleary in December suggested that how same-sex marriage legalization was presented influenced support, factors which the court’s ruling and subsequent legislative actions may exacerbate. For example, various means to frame same-sex marriage, including mentioning that other countries had already legalized and that Taiwan would be the first in Asia, had no impact on supporters of the DPP. However, when KMT supporters were less supportive of legalization when told that Taiwan would be the first in the region and those without a party identification were less supportive when told that a majority of legislators already supported legalization.
The Court’s decision is welcome news for same-sex marriage supporters, yet this should be seen as one step, albeit major, toward legalization. The legislative process to amend the Civil Code is unlikely to be swift, a point DPP caucus whip Ker Chien-ming reiterated. Not only is the legislative session about to end, leaving limited time to debate over the wording of new legislation and whether to use terminology such as “civil union” rather than marriage, but support within and across parties remains fluid.
According to Pridewatch, 65 of Taiwan’s 113 legislators (57.5 percent) are on record as supportive of same-sex marriage. Within the ruling DPP, only 67.6 percent of the 68 DPP (46) legislators are on record in support, with two in opposition (including the party whip Ker), and 19 (27.9 percent) having no public stance. Within the KMT roughly a third of legislators are in support, a third opposed, and a third with no stance. My research on legislators in 2014 identified that party list legislators elected under proportional representation in both the DPP and KMT were more likely to support legalization than district counterparts, with similar evidence, at least within the DPP, in more recent data. This pattern is particularly important if the issue of legalization is viewed from a cross-national comparison, as most countries that have passed same-sex marriage laws at the national level use proportional representation systems, where voting against the party’s position historically is rare.
While public support for legalizing same-sex marriage remains rare in Asia, at least one other country in the region may follow Taiwan’s lead: Thailand. Polls suggest a majority of Thais support legalization and both major parties supported legalization prior to the country’s political crisis in 2014.