A Court as a Means of Legislative Position Avoidance: Evidence from the Same-Sex Marriage Decision in Taiwan

Abstract

In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.

Taiwan's Same-Sex Marriage Legislation: Social Movement Strategies and Relational Dynamics

“…Further, the hybrid lens not only reveals the structural enablers behind the strategies and dynamics of the campaigns, but also indicates the agency of the political actors to launch and carry on with the campaigns through waves of back-and-forth strategic contests. On the one hand, it is noteworthy that the DPP, given its roots in Taiwan's social movements, often works as a sympathetic political ally and functions as an enabling political structure when they are in power (Ho 2005, 403), even though they were slow to act and reluctant to take the initiative to “fire the first shot” for SSM legislation (see Tseng 2021, 235; Sung, Hsu, and Wang 2022, 3) until the Judicial Interpretation set the process in motion. On the other hand, the three activist groups have also exercised their agency to not only seize and respond to available opportunities, but actively tried to create opportunities and take advantage of favorable circumstances (see Ho 2015, 75 and 2016, 544): the TAPCPR for the initial constitutional challenge, the CHNG for the referenda, and the FGC for the strategic alliance as a traditionally strong anti-SSM force now with limited resources.…”

“…All three referenda passed the line on 24 November 2018, creating a problem that the legally binding referendum to exclude same-sex partnerships from “marriage” was at odds with the Constitutional Court ruling that same-sex marriage must be legalized. The interpretation of the referendum results became a focal point in the debate between pro-SSM and anti-SSM groups thereafter, even though both the Executive Yuan (行政院) and the Judicial Yuan (司法院) clarified that the Constitutional Court ruling would take precedence and would not be overturned by the referendum results (see Sung, Hsu, and Wang 2022, 1).…”

“…Here, the available judicial and political structures have not only laid the legal ground and created opportunities for TAPCPR and its allies, but also made possible a loose strategic alliance between the pro-SSM movements and the DPP as well as other small progressive parties such as the Green Party and the New Power Party. They both had a socio-political interest in promoting equal marriage rights, given the DPP's origin in rights-based social movements (Ho 2005) and the progressive policies supported by the smaller parties, although the DPP barely took any proactive initiatives and was essentially prodded into supporting SSM by the activists and the Judicial Interpretation (see Tseng 2021, 235, and Sung, Hsu, and Wang 2022, 3). But their efforts to achieve marriage equality through a judicial and legislative process were challenged by their rivals, who launched a successful countermovement through the referendum.…”

“…Taiwan legalized same-sex marriage (SSM) in 2019 and sparked wide academic interest in what made Taiwan successful (Krumbein 2020; Liu and Kao 2019), whether it can serve as a model for other countries (Chang 2019), the role and the viability of Taiwan's legislature in pushing through the SSM bill (Sung, Hsu, and Wang 2022), and which country might become the next in Asia to legalize same-sex marriage (Krumbein 2022). These discussions have contributed to the ongoing global debates on marriage equality (Bernstein, Harvey, and Naples 2018; Winter, Forest, and Sénac 2018).…”

Introduction to the Research Handbook on Law, Movements and Social Change: On "legitimate political discourse" in the global twenty-first century

“…The dangers posed by conservative movements put a wider frame around a longstanding central concern of legal mobilization scholarship: how law functions as a strategy to advance movement goals. Primarily centered on formal legal institutions and actors such as courts, litigation, and lawyers, much law and social movement research has focused on outcomes and whether law was a useful strategy for movements (e.g., Dias et al, 2021;Goede, 2018;Handler, 1978;Madlingozi, 2014;Rosenberg, 2008;Sung et al, 2022;Vel et al, 2017). This line of scholarship often assumes a primarily rational actor framework and aims to understand why movements turn to the courts, what types of legal arguments work, and whether or not movements are able to achieve their desired outcome through litigation (Boutcher & McCammon, 2019).…”