EDITORIAL: Marriage laws are not set in stone

The Council of Grand Justices on Friday began a session to hear a constitutional challenge concerning same-sex marriage, brought by gay rights advocate Chi Chia-wei (祁家威) and the Taipei City Government.

This makes Taiwan the first Asian nation to agree to a constitutional interpretation on this issue, pushing for amendments to the Civil Code (民法) as a way to legalize same-sex marriage.

At the core of the debate is Article 972, Section 1, Chapter II of the code, which defines marriage as an agreement made by the “male and the female parties,” something Chi and the city government’s counsel said is unconstitutional. The Constitution does not address marriage between people of the same sex.

Minister of Justice Chiu Tai-san’s (邱太三) closing remarks drew a lot of attention. Chiu’s preference was for an alternative proposal amending the Civil Code: enacting a separate law for same-sex marriage under the principle of separate but equal; same-same, but different.

It should be noted that Premier Lin Chuan (林全) has distanced himself from Chiu’s preference. Responding to a question on the government’s position, Lin later said Chiu did not speak for the Executive Yuan, adding that he did not really understand what Chiu meant by “separate, but equal.”

Chiu also — rather absurdly and tangentially — quoted the ancient Chinese classic I Ching (易經, Book of Changes) which talks of the original emergence of the earth and the sky, and from there men and women. Case closed. Chinese antiquity has bequeathed Taiwan the cast-iron principle that marriage should be based on a union between a man and a woman.

This was not Chiu’s most absurd reference, but it did tie in with his central position, that marriage — specifically between a man and a woman — was legitimized by its antiquity, that it was a “thousand-year tradition” and, for that reason, should not be tampered with.

“Has there ever been a cultural institution or social phenomenon for same-sex marriage?” he asked, presumably rhetorically.

It is an important point, if only because it has been repeatedly broached as a rationale for denying equal marriage rights to a significant minority of the population.

Tradition is important, as it facilitates stability and therefore progress, counter-intuitive as that might at first seem. The point is also important because a society has to ask itself whether tradition serves it, or if the shoe is on the other foot.

Speaking of feet, to what extent was long-held tradition given as reasoning for the longevity of foot-binding in China? This dubious practice was widespread from just before the Song Dynasty to the mid-1950s, making it a thousand-year tradition. When the Japanese put a stop to it in Taiwan in 1915, was it objected to on the basis of tradition?

Laws and social conventions can, and do, change. In 1275, the age of consent in England was 12. It took 600 years for that to be increased to 13 in England and Ireland, but only another 10 years for it to be increased again, to 16. In the UK’s Sexual Offences Act of 1967, the male homosexual age of consent was 21. It was first lowered to 18 in 1994, and then reduced to 16 in the 2000 Sexual Offences (Amendment) Act, bringing age of consent in line with that for heterosexuals.

Same-sex marriage is not specified in the Civil Code (民法), and it — like all laws — is not set in stone. It is a reflection of the society and the public’s expectations, and is there to serve society, not immutably prescribe how it behaves.

Changes to the Civil Code cannot be made spuriously or arbitrarily, but that is not how same-sex marriage advocates see it, either. It is a matter of extreme gravity, and it enjoys popular support in Taiwan.