Does judicial activism happen in Taiwan? Should it?

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

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.

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3 posts were merged into an existing topic: Gay marriage February 2019 edition

There’s already a couple threads on the topic.

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Thanks for that. There are a lot of subforums here, and I checked this one as it seemed on topic.

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Well, it was kind of off topic before the new law.

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, which some people also see as a case of judicial activism.

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?

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:

Whereas:

That “universal definition” is a myth. Ask any anthropologist.

That’s just one example of a traditional (non-universal) definition of marriage.

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).

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.

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?