# Does judicial activism happen in Taiwan? Should it? **URL:** \ **Category:** General Legal Matters\ **Created:** [May 23, 2019, 1:09am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028 "2019-05-23T01:09:14Z")\ **Posts on this page:** 8\ **Page:** 1
**Author:** ![Mithrandir](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/mithrandir/32/90794_2.png) [@Mithrandir](https://tw.forumosa.com/u/Mithrandir)\ **Post date:** [May 23, 2019, 1:09am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/1 "2019-05-23T01:09:14Z")
I was interested to see that Taiwan was the first Asian nation to recognize same sex marriage. The law goes into effect tomorrow. [https://edition.cnn.com/2019/05/17/asia/taiwan-same-sex-marriage-intl/index.html](https://edition.cnn.com/2019/05/17/asia/taiwan-same-sex-marriage-intl/index.html) Generally I don’t like courts granting rights that aren’t explicitly stated in a constitution (assuming a country has one), and I have no opinion on the validity of the 2017 ruling that mandated this change as I am not familiar with the Taiwan Constitution. Also, it is clear that the Taiwanese people don’t want this. Still, it’s nice to see a move towards individual rights in Asia. ---
**Author:** ![yyy](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/yyy/32/12085_2.png) [@yyy](https://tw.forumosa.com/u/yyy)\ **Post date:** [May 31, 2019, 9:50pm UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/2 "2019-05-31T21:50:40Z")
3 posts were merged into an existing topic: [Gay marriage February 2019 edition](https://tw.forumosa.com/t/gay-marriage-february-2019-edition/177312/379) ---
**Author:** ![DrewC](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/drewc/32/224499_2.png) [@DrewC](https://tw.forumosa.com/u/DrewC)\ **Post date:** [May 23, 2019, 2:44am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/3 "2019-05-23T02:44:09Z")
There’s already a couple threads on the topic. > [@Same Sex Marriage in Taiwan for Foreigners](https://tw.forumosa.com/t/same-sex-marriage-in-taiwan-for-foreigners/173381/6): > > only death and taxes have 100% probability > [@Same Sex Marriage](https://tw.forumosa.com/t/gay-marriage-february-2019-edition/177312/359): > > Thankfully they have not destroyed the meaning of marriage; it remains exactly what it has always been. The only difference is that it is accessible to all, instead of being a special right for straight people. It can’t have the exact same meaning if there is now as you put it a “difference”. Would you agree to marriages with animals and child marriage too? How about marriage with an object? ---
**Author:** ![Mithrandir](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/mithrandir/32/90794_2.png) [@Mithrandir](https://tw.forumosa.com/u/Mithrandir)\ **Post date:** [May 23, 2019, 3:49am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/4 "2019-05-23T03:49:52Z")
Thanks for that. There are a lot of subforums here, and I checked this one as it seemed on topic. ---
**Author:** ![slawa](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/slawa/32/112823_2.png) [@slawa](https://tw.forumosa.com/u/slawa)\ **Post date:** [May 23, 2019, 4:45am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/5 "2019-05-23T04:45:41Z")
Well, it was kind of off topic before the new law. ---
**Author:** ![yyy](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/yyy/32/12085_2.png) [@yyy](https://tw.forumosa.com/u/yyy)\ **Post date:** [May 31, 2019, 9:58pm UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/6 "2019-05-31T21:58:00Z")
> [@Mithrandir](#): > > Generally I don’t like courts granting rights that aren’t explicitly stated in a constitution (assuming a country has one), and I have no opinion on the validity of the 2017 ruling that mandated this change as I am not familiar with the Taiwan Constitution. Also, it is clear that the Taiwanese people don’t want this. Still, it’s nice to see a move towards individual rights in Asia. I moved the posts about SSM in general to the “Gay marriage February 2019 edition” thread. You raise an interesting point though, which is fit for discussion here (so I’ve changed the title of the thread), namely so-called judicial activism. Fwiw, the constitutional interpretation by the Council of Grand Justices (frequently mistaken for the Supreme Court because that would be the equivalent in the US and many other countries) does explicitly cite _[Obergefell v. Hodges](https://en.wikipedia.org/wiki/Obergefell_v._Hodges)_, which some people also see as a case of judicial activism. ---
**Author:** ![Mithrandir](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/mithrandir/32/90794_2.png) [@Mithrandir](https://tw.forumosa.com/u/Mithrandir)\ **Post date:** [June 2, 2019, 7:00am UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/7 "2019-06-02T07:00:30Z")
Oberfell was judicial activism in my view. Nothing in the text or legislative history suggests that this is what was meant by the 5th or 14th amendments. It’s less ridiculous than the ruling in Roe, but virtually everything is. Having said that, I am very happy with the result, and I think that is true of most Americans. How this will play in Taiwan where it seems most people oppose it will be interesting to see. Does it speed up acceptance, or foster resentment and push back? ---
**Author:** ![yyy](https://forumosa-12829.kxcdn.com/user_avatar/tw.forumosa.com/yyy/32/12085_2.png) [@yyy](https://tw.forumosa.com/u/yyy)\ **Post date:** [June 4, 2019, 9:48pm UTC](https://tw.forumosa.com/t/does-judicial-activism-happen-in-taiwan-should-it/180028/8 "2019-06-04T21:48:10Z")
Whether most Taiwanese actually oppose it is not straightforward. To summarize: - if the question had been “should same sex couples have the same rights as opposite sex couples?” that would have been one thing, but instead the question was basically “should the traditional definition of marriage be protected?”, so it was something else; - the Council of Grand Justices had already made its decision and given a deadline after which failure to pass a conforming law would result in SSM automatically becoming legal anyway, so even with a conflicting referendum result the LY wouldn’t have the authority to overrule the JY (without amending the constitution, which everyone knew wasn’t going to happen before the deadline), so many SSM supporters probably didn’t feel motivated to bother voting. Regarding Obergefell: > [@Wikiland](#): > > “The Constitution promises liberty to all within its reach,” the Court declared, “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”[[117]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-117) Citing _[Griswold v. Connecticut](https://en.wikipedia.org/wiki/Griswold_v._Connecticut)_ , the Court affirmed that the [fundamental rights](https://en.wikipedia.org/wiki/Fundamental_rights) found in the Fourteenth Amendment’s Due Process Clause “extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs,” but the “identification and protection” of these fundamental rights “has not been reduced to any formula.”[[118]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-118) As the Supreme Court has found in cases such as _[Loving v. Virginia](https://en.wikipedia.org/wiki/Loving_v._Virginia)_ , _[Zablocki v. Redhail](https://en.wikipedia.org/wiki/Zablocki_v._Redhail)_ , and _[Turner v. Safley](https://en.wikipedia.org/wiki/Turner_v._Safley)_ , this extension includes a fundamental right to marry.[[119]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-119) > > The Court rejected respondent states’ framing of the issue as whether there were a “right to same-sex marriage,”[[120]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-120) insisting its precedents “inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.” Indeed, the majority averred, “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.” Citing its prior decisions in _[Loving v. Virginia](https://en.wikipedia.org/wiki/Loving_v._Virginia)_ and _[Lawrence v. Texas](https://en.wikipedia.org/wiki/Lawrence_v._Texas)_ , the Court framed the issue accordingly in _Obergefell_ .[[121]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-121) Whereas: > [@](#): > > More generally, Roberts stated that **marriage, which he proposed had always had a “universal definition” as “the union of a man and a woman”, arose to ensure successful childrearing.** [[139]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-139) That “universal definition” is a myth. Ask any anthropologist. > [@](#): > > Roberts criticized the majority opinion for relying on moral convictions rather than a constitutional basis, and for expanding fundamental rights without caution or regard for history.[[140]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-140) He also suggested the majority opinion could be used to expand marriage to include legalized **polygamy.** [[141]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-141) That’s just one example of a traditional (non-universal) definition of marriage. > [@](#): > > Roberts chided the majority for overriding the democratic process and for using the judiciary in a way that was not originally intended.[[142]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-142) Now that would be the essence of judicial activism. However, the US uses common law, and the living tree doctrine is part of common law and has been for a long time. Even long before it was expressed as such, the basic idea was already there. No, not the idea that one day SSM would be legalized, but that the judiciary has authority that extends beyond deciding the concrete facts of a case (like whether X did or didn’t take Y’s property without permission) to interpreting the law itself (like whether X’s taking of Y’s property without permission should be regarded as a criminal act). > [@](#): > > According to Roberts, supporters of same-sex marriage cannot win “true acceptance” for their side because the debate has now been closed.[[143]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-143) There is that. However, the overall trend in recent decades is clear: support for SSM continues to grow. Much of the opposition was of the Doomsday variety, but as more and more countries discover that SSM actually doesn’t destroy society, that reason to oppose it becomes less and less convincing. > [@](#): > > Roberts also suggested the majority’s opinion will ultimately lead to consequences for religious liberty, and he found the Court’s language unfairly attacks opponents of same-sex marriage.[[144]](https://en.wikipedia.org/wiki/Obergefell_v._Hodges#cite_note-144) Consequences for religious liberty are part of the price you pay for religious liberty. America has a high degree of it because (theoretically) no religious group can impose itself on everyone else. In other words, in the choice of maximum liberty for one group vs. a high degree of liberty for all groups, the latter idea wins. And that, I believe, is a faithful interpretation of the constitution. As for Taiwan, is there anything about the ROC constitution that makes this decision, or this type of decision, particularly problematic?