By M. Bob Kao[1]
On June 24, 2015, the United States Supreme Court released its long-anticipated Obergefell v Hodges opinion.[2] The majority opinion,[3] written by Justice Anthony Kennedy, answered in the affirmative the following questions: ‘whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex’ and ‘whether the Fourteenth Amendment requires a State to recognise a same-sex marriage licensed and performed in a State which does grant that right’.[4] Justice Kennedy concluded that ‘the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.’[5] Marriage equality was finally achieved in the United States.
The victory in Obergefell came after decades of advocacy for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) rights in the United States that was often marred by setbacks, including Baker v Nelson,[6] Bowers v Hardwick, [7] and the backlash against the Hawaiian Supreme Court case Baehr v Lewin[8] that led to the passage of the Defense of Marriage Act[9] and Amendment 2 to the Hawaiian State Constitution, both of which defined marriage as between a man and a woman. [10] Of course, there were also incremental judicial wins, most notably Romer v Evans,[11] Lawrence v Texas,[12] and United States v Windsor,[13] all of which were authored by Justice Kennedy
From an international perspective, the United States is hardly a trailblazer on the issue of same-sex marriage.[14] Still, Obergefell has mobilised advocates in many countries –particularly in East Asia where no countries allow same-sex marriage – that have traditionally looked to legal developments in the United States as a model. Advocates in Japan cited Obergefell when requesting the Japan Federation of Bar Associations to investigate whether the lack of marriage equality is a violation of human rights.[15] In South Korea, the first lawsuit challenging marriage laws was filed in 2014 but received renewed attention after Obergefell.[16] Dr York Chow Yat-Ngok of the Equal Opportunities Commission in Hong Kong also called for discussions on the possibility of legalising same-sex marriage in response to the United States Supreme Court decision.[17]
Taiwan deserves particular attention due to its relatively strong protection of LGBTQ rights in the region.[18] Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law, has asserted that ‘Taiwan seems likely to become the first East Asian nation to legalise same-sex marriage.’[19] Indeed, the fight for marriage equality in Taiwan has made headways on the executive, legislative, and judicial fronts[20] and culminated in the December 2014 deliberation of the Marriage Equality Bill – which would have made the language on marriage in the civil code gender-neutral – in the Legislative Yuan, the legislative branch of the Taiwanese government, for the first time in history.[21] Unsurprisingly, the bill encountered familiar arguments such as same-sex marriage leading to bestiality and lack of procreation;[22] the Ministry of Justice also opposed the bill, using four nonsensical reasons to buttress its position.[23]
Oppsition to same-sex marriage is also strong in the judicial branch. Less than two weeks before Obergefell, during the confirmation hearings to replace four Justices on the Constitutional Court – the only court in Taiwan that has the power to interpret the constitution – the nominees unanimously declined to support marriage equality.[24] The hope for achieving marriage equality, in the short-term, was effectively dead both legislatively and judicially.
With Obergefell, however, Taiwanese advocates have been reenergised. The Taiwan Alliance to Promote Civil Partnership Rights, in the wake of the ruling, immediately called for further action in Taiwan to realise the goal.[25] The City Government of Taipei, Taiwan’s capital, also cited the US decision when announcing that it would seek an interpretation by the Constitutional Court on the constitutionality of the civil code provision mandating that marriage is between a man and a woman.[26]
The United States, rightly or wrongly, sets the benchmark for legal progress in Taiwan and other East Asian countries. Using the legal victory in the United States to build momentum in the respective social movements in each country is not a bad idea, even if the experience of other countries that achieved marriage equality earlier may be able to offer better guidance. Indeed, the fact that the struggle has been drawn out and faced such vehement opposition in the United States may mean that the American experience can offer unique lessons.
It is important to note that the salient lesson of Obergefell is neither the result nor the legal arguments that led to marriage equality. Rather, it is the blood and sweat that paved the way that should be emulated. Of course, as the legal systems and legal cultures are different, advocates in the East Asian countries cannot transplant the entire strategy utilised in the United States. However, the sophistication of the strategising is worthy of due consideration.
Advocates in East Asia can learn from the American experience how the determination of venues, causes of action, and timing were made, how sympathetic and determined plaintiffs were identified, and how non-legal strategies, including rallies, publicity, media outreach, community outreach, and celebrity support, were coordinated. In addition, the way proponents researched judicial nominees’ backgrounds and studied the judicial history of judges and Justices to target legal arguments based on their judicial propensities are approaches worth borrowing. Finally, the way advocates learned to speak to and persuade opponents and doubters using non-legal language offers the most important lesson. In the end, a legal victory alone is not enough, as marriage equality, in the United States and elsewhere, is just a small win on the road toward true equality for LGBTQ individuals on a personal and societal level.
The practice of law, broadly defined to include the raising of legal consciousness of the people through cause lawyering, is what needs to be emulated. The way that the movement mobilised the people, captured their imaginations, and won over their hearts and minds are the lessons that should be gleaned from Obergefell. The impact of Obergefell undoubtedly spreads far beyond the confines of the United States, and the decision can be instrumental in helping to propel the movements in other countries that have not legalised same-sex marriage. Its importance, however, lies not in its jurisprudence, but in the history and experiences it embodies.
Image by Ludovic Bertron from New York City, Usa [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)%5D, via Wikimedia Commons.
[1] M. Bob Kao is a PhD candidate at Queen Mary University of London. He received his LLM from University College London, JD from University of California, Berkeley School of Law, and MA and BA from Wesleyan University. He was a public interest attorney in California and is a member of the Chartered Institute of Arbitrators. The author would like to thank Dylan Nicole de Kervor for her comments ([email protected]).
[2] 576 US ___ (2015).
[3] Justice Kennedy was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. Each of the remaining Justices wrote separate dissenting opinions.
[4] Obergefell (n 2)
[5] ibid.
[6] 409 US 810 (1972) (ruling that a Minnesota state law restricting marriage to persons of the opposite sex did not violate the US Constitution). For other cases in the 1970s that denied marriage for same-sex couples, see Jones v Hallahan, 501 SW 2d 588 (Ky 1973); Singer v Hara, 522 P2 1187 (Wash Ct App 1974).
[7] 478 US 186 (1986) (holding that a Georgia state law criminalising homosexual behavior did not violate the due process clause).
[8] 852 P2d 44 (Hawaii 1993) (ruling that the state ban against same-sex marriage must meet strict scrutiny and remanding the case to the Intermediate Court of Appeals). See Baehr v Miike, 1996 WL 694235 (Hawai`i Circ Ct 1996) (ruling that the ban against same-sex marriage in Hawaii did not meet strict scrutiny and ordering marriage licenses to be issued to same-sex couples).
[9] Pub L 104–199.
[10] Hawaii Constitutional Amendment 2 of 1998.
[11] 517 US 620 (1996) (holding that an amendment to the Colorado Constitution that barred the enactment of anti-discrimination laws based on sexual orientation was unconstitutional).
[12] 539 US 558 (2003) (overruling Bowers v Hardwick).
[13] 570 US 12 (2013) (striking down Section 3 of the Defense of Marriage Act which defined marriage as between a man and a woman for federal purposes as it violated the due process clause and equal protection clause). Hollingsworth v Perry, 570 US 183 (2013), decided on the same day as Windsor, began with much attention due to the relationship between the plaintiffs’ lead counsels Ted Olson and David Boies, opposing counsels in Bush v Gore, 531 US 98 (2000), and the criticism by seasoned advocates that the conditions were not right for the issue to be addressed by the Supreme Court. The Court ultimately declined to address the substance of the case and ruled that the opponents of same-sex marriage lacked standing in the appeal. The decision allowed same-sex marriages to continue in California.
[14] In 2001, the Netherlands became the first country to legalise same-sex marriage, followed by Belgium and the Canadian provinces of Ontario and British Columbia in 2003. In 2004, Massachusetts became the first US state to legalise same-sex marriage. South Africa, the only country in Africa to allow same-sex marriages, did so in 2006. To date, no Asian country allows same-sex couples to marry within its jurisdiction.
[15] Tomohiro Osaki, ‘Japan LGBT Group Files Human Rights Complaint in Bid for Same-Sex Marriages’ Japan Times (Tokyo, 7 July 2015) http://www.japantimes.co.jp/news/2015/07/07/national/social-issues/lawyer-lobby-handed-lgbt-rights-relief-request-pursuit-legal-sex-marriages accessed 30 July 2015.
[16] Choi Woo-ri, ‘US Ruling Brings New Urgency to S Korean Efforts Toward Same Sex Marriage’ The Hankyoreh (Seoul, 29 June 2015) http://english.hani.co.kr/arti/english_edition/e_national/697925.html accessed 30 July 2015.
[17] Stuart Lau, ‘Same-Sex Marriage “an Inescapable Issue” in Hong Kong, Says Head of Equality Watchdog’ South China Morning Post (Hong Kong, 28 June 2015) http://www.scmp.com/news/hong-kong/article/1828134/same-sex-marriage-inescapable-issue-hong-kong-says-head-equality accessed 30 July 2015.
[18] In Taiwan, discrimination based on sexual orientation is illegal in employment under the Act of Gender Equality in Employment and in education under the Gender Equity Education Act. In Hong Kong, the Bill of Rights Ordinance 1991 bars sexual orientation discrimination by government entities. There are no laws prohibiting sexual orientation discrimination in Japan or South Korea.
[19] Kenji Yoshino, Speak Now: Marriage Equality on Trial (Crown 2015) 284-85.
[20] M. Bob Kao, ‘The Same-Sex Marriage Battle in Its Historical Context’ Thinking Taiwan (Taipei, 23 December 2014) http://thinking-taiwan.com/the-same-sex-marriage-battle-in-its-historical-context/ accessed 30 July 2015.
[21] ‘Taiwan Reviews Same-Sex Marriage Bill’ The China Post (Taipei, 23 December 2014) http://www.chinapost.com.tw/taiwan/national/national-news/2014/12/23/424706/Taiwan-reviews.htm accessed 30 July 2015. For the text of the bill, see https://tapcpr.files.wordpress.com/2013/10/e5a99ae5a7bbe5b9b3e6ac8a1003.pdf.
[22] M. Bob Kao, ‘Taiwan Parliament Debates Gay Marriage for the First Time’ Gay Star News (23 December 2014) http://www.gaystarnews.com/article/taiwan-parliament-debates-gay-marriage-first-time221214/ accessed 30 July 2015.
[23] The Ministry of Justice argued that: ‘1. The public would not be able to accept gender-neutral terms because they differ from people’s historical conceptions of human relations; 2. One of the reasons for marriage is procreation, and since same-sex couples cannot procreate, allowing them to marry would impact the existing marital institution that places emphasis on blood relations; 3. If same-sex marriage were recognised, death of a spouse would lead to inheritance passing onto the surviving spouse and children, thus the surviving parents would be left with nothing; [and] 4. There are too many laws and regulations that use the terms “father,” “mother,” “grandfather,” and “grandmother,” so amending them all to be consistent with the marriage equality bill would be too cumbersome.’ ibid.
[24] Alison Hsiao, ‘Grand Justice Nominee Review Panned’ Taipei Times (Taipei, 12 Jun 2015) http://www.taipeitimes.com/News/taiwan/archives/2015/06/12/2003620526 accessed 30 July 2015.
[25] Eddy Chang, ‘Learning from the US Ruling’ Taipei Times (Taipei, 26 July 2015) http://www.taipeitimes.com/News/feat/archives/2015/07/26/2003623908 accessed 30 July 2015; ‘Protesters Rally for Gay Marriage at KMT, DPP Headquarters’ Want China Times (Taipei, 12 July 2015) http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20150712000085&cid=1103 accessed 30 July 2015.
[26] Christie Chen, ‘Taipei City to Seek Constitutional Interpretation on Gay Marriage’ Focus Taiwan News Channel (Taipei, 23 July 2015) http://focustaiwan.tw/news/asoc/201507230024.aspx accessed 30 July 2015.
