Case Analysis: Same-Sex Marriage

Abstract

AbstractThis chapter raises the question of how Korean courts can learn from Europe, from Taiwan, and from the cases of IACtHR in legalizing same-sex marriage. However, unlike the non-criminalization of homosexual relations, the standard of protection is not sufficient in the European system. there are good lessons that Korea can learn from the first legal recognition of same-sex marriage in Taiwan. Particularly, unlike Europe, Taiwan shares many cultural and social similarities with Korea so that the Taiwanese decision will provide many progressive stimuli to the Korean court when deciding the case of same-sex marriage in the near future. This will provide progressive and inspiring sources to courts in other parts of the world including South Korea where sexual minorities are not sufficiently protected through the court decisions.This chapter will also introduce the case law of the European Court of Human Rights (“ECtHR”) related to same-sex marriage. As of 2020 (ILGA World: Lucas Ramon Mendos, Kellyn Botha, Rafael Carrano Lelis, Enrique López de la Peña, Ilia Savelev and Daron Tan, State-Sponsored Homophobia 2020: Global Legislation Overview Update (Geneva: ILGA), December 2020, 277.), 16 out of 48 European countries legalize same-sex marriage while Taiwan (Taiwan became the first Asian country to legalize same-sex marriage and as of January 22, 2021 approved an amendment paving the way for same-sex marriage between Taiwanese and foreign spouses, but not if the latter is a citizen of China (taken from Taiwan News, Taiwan to allow multinational same-sex marriages, but not with China, https://www.taiwannews.com.tw/en/news/4109284. Accessed November 30, 2021). The Constitutional Court of Taiwan rules in May 2017 that same-sex couples have the right to marry under the Constitution and ordered the Legislative Yuan to amend the marriage laws within two years by May 2019. This Constitutional decision will be discussed in Sect. 8.3.) is the only Asian state that legalized same-sex marriage. On the other hand, Among the principles and relevant concepts introduced in the previous chapters, the principle of proportionality and positive state obligation will be mainly analyzed in the case law of the ECtHR in this chapter. This will be followed by a discussion of same-sex marriage in Korea even if same-sex marriage is not legally recognized in the current Korean legal system. Finally, the Constitutional Court of China (Taiwan) decision about same-sex marriage will be introduced. The Taiwanese case is particularly important to analyze because this decision made Taiwan the first Asian country to legalize same-sex marriage.KeywordsPositive state obligationsNegative state obligationsPrinciple of proportionalitySame-sex marriageConstitutional Court of China (Taiwan)Inter-American Court of Human Rights