Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally?

Abstract

Since 2013, Hong Kong scholars have been considering that it is open for courts of Hong Kong Special Administrative Region of People's Republic of China to recognise a right to marry for same-sex couples. The judicial recognition of entitlement of a party to a same-sex marriage celebrated outside Hong Kong as spouse for purpose of an immigration policy, civil service benefits and tax legislation by Hong Kong Court of Final Appeal in two cases 2018 and 2019 has raised prospects of judicial recognition of same-sex marriage for Hong Kong couples. This paper examines recent direct legal challenges against Hong Kong's marriage legislation's restriction of marriage to the civil equivalent of a Christian marriage between a man and a woman and consequential absence of a form of legal recognition of a same-sex relationship on par with marriage in light of differing considerations on part of Hong Kong's senior judges of appropriate approach to resolve such a challenge. Particularly, it critiques lex specialist approach adopted by Court of First Instance in its judgment dismissing first of these legal challenges by holding that since both Basic Law of Hong Kong Special Administrative Region and Hong Kong Bill of Rights Ordinance (Cap.484), instruments setting out scheme of protection of human rights in Hong Kong, protect right to marry of Hong Kong residents in particularly (and narrowly), other substantive protection, say, by invoking principle of equality before law and non-discrimination also enshrined in those instruments, was thereby precluded.