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By Chien-Chih Lin, assistant research professor of Institutum Iurisprudentiae, Academia Sinica, Taiwan. He is an editor of Academia Sinica Law Review. His major academic interests focus on judicial behavior, comparative constitutional law, and empirical legal studies.
On May 24, 2017, the Constitutional Court of Taiwan (the TCC) issued Interpretation No. 748, declaring part of Taiwan’s Civil Code, which in essence prohibits same-sex marriage, unconstitutional. Unsurprisingly, it was a high-profile case: the TCC held not only oral debate but also a press conference before the promulgation of its final decision. Both are extraordinary in the history of the TCC. This decision requires the legislature to amend the Civil Code within two years, and same-sex couples may marry according to the current family chapter of the Civil Code should the legislature procrastinate or resist this judicial mandate. Namely, it could make Taiwan the first Asian country to legalize same-sex marriage. Many constitutional law and family law scholars have analyzed this landmark decision from both doctrinal and dialogical perspectives. This post, however, tries to anatomize this decision through the prism of judicial politics.
For starters, this decision seems to be a paradigmatic example of the judicialization of politics with the acquiescence of the political branches. In fact, one crucial function of judicial review is to solve thorny issues for politicians who face constituencies with antithetical stances. In Taiwan, it had been polemic whether the TCC should hear the case because the legislature had already tackled the same issue and submitted several legislative drafts. It is not unreasonable to argue that the TCC should brake until the political branches have made their preliminary proposals from the angle of democratic accountability. After all, marriage equality was one major campaign promise of the DPP President Tsai Ing-wen, and her party controls a majority of congressional seats. President Tsai, nevertheless, was reportedly more hesitant in implementing marriage equality after election, as a result of the pressure from her conservative supporters. Meanwhile, not all DPP legislators endorse same-sex marriage: on the one hand, DPP legislator Yu Mei-nu, whose husband is one sitting Justice of the TCC and therefore recused himself from this decision, is a staunch advocate of same-sex marriage; on the other hand, the DPP whip Ker Chien-ming was tepid at best in this regard. By contrast, most members of the opposition party, KMT, oppose same-sex marriage vehemently on traditional grounds. Facing this ideological cleavage both inside and outside the party, judicial intervention becomes a boon to President Tsai, since the court ruling, whatever result the TCC will reach, is the best scapegoat for her to get out of this dilemma.
Second, this is another important case of judicial lawmaking. As mentioned above, the TCC designated a two-year deadline for legislators to amend the Civil Code, and provided its own solution for marriage equality if the legislature fails to do so. This is not the first case of judicial lawmaking. The TCC has legislated in this sense in a constellation of decisions, such as Interpretation No. 627 and No. 677, and neither scholars nor politicians have seriously challenged the TCC’s legitimacy in doing so. This judicial activism at the expense of the political branches is all the more remarkable given the TCC’s humble start during the authoritarian period in which judicial rulings had not been implemented for decades. It is clear from this case that the line between judicial decision-making and judicial policy-making is blurred in Taiwan. The TCC is not simply a tribunal that interprets and applies laws mechanically; instead, its power has encroached upon legislative prerogative from time to time.
The third point that merits elaboration is that this decision is a Brown-like decision in three senses. The first, and most obvious, one is that both make a great stride in promoting equality in different domains. Before the decisions, certain groups of minorities have been denied equal justice for centuries, despite the plain constitutional enshrinement of equal protection. While it is arguable whether the TCC refutes the separate-but-equal doctrine in the context of same-sex marriage, it is undisputable that gay couples in Taiwan have the right to marry. Moreover, courts in both decisions rely substantially on scientific evidences, such as psychiatry and psychology, to undergird their rulings, instead of piling up legal arguments. In Taiwan, a civil law jurisdiction in which doctrinal analysis is the core of judicial decisions, this rarely occurs. Perhaps aware of the limit of legal reasoning in this case, the Justices invoked the reports of World Psychiatric Association, World Health Organization, Pan American Health Organization, American Psychological Association, and Taiwanese Society of Psychiatry to justify their decision espousing marriage equality. Last but not least, what makes Interpretation No. 748 most similar to Brown is the manipulation of separate opinions. In Brown, Chief Justice Earl Warren famously dissuaded his colleagues from issuing separate opinions to forge a unanimous ruling with an eye to securing compliance. Similarly, Taiwan’s Justices refrained from issuing personal opinions, with the exception of only two dissents (out of fifteen Justices) in this highly controversial case. Anecdotes have it that some Justices did voluntarily withdraw their separate opinions after circulation to enhance the persuasiveness of this ground-breaking decision.
Finally, explicit constitutional engagement is another feature of this decision. In addition to those expert statements, the TCC cited the United States Supreme Court decision of Obergefell v. Hodges to strengthen its ruling. It is notable because most Justices on the bench are trained in civil law traditions and only three have American law degrees. Namely, legal family does not explain this judicial dialogue. Furthermore, the TCC expressly mentions foreign precedents in less than 1 percent of its decisions, because of the writing style and the process of collective decision-making. Given this convention, one plausible explanation of this unusual citation is the controversial nature of same-sex marriage. That is, encountering this vexing issue, the TCC endeavored to buttress its reasoning by citing a world-known decision.
In sum, the political maelstrom that engulfed the DPP government in the early 2017 set the stage for Interpretation No. 748. This decision demonstrates the political savvy of the TCC, which has applied a myriad of strategies to secure compliance. This by no means indicates that the TCC is a partisan tribunal, which is evident from the nearly unanimous votes of the ruling. It does suggest, however, that judicial politics plays a role in the process of decision-making.