Same-Sex Marriage/Constitutionalism and their Centrality to Equality Rights in Hong Kong: A Comparative–Socio-Legal Appraisal

Abstract

Whether an individual has a right to marry another person of the same sex has garnered tremendous judicial, political and scholarly attention in the past decade, and it certainly will continue to do so in the years to come, for such a right is one which sexual minority rights activists consider to be part and parcel of their struggle for equality whilst opponents of homosexuality and sexual minority rights regard it as the ultimate destruction of marriage and society. Adopting a comparative and socio-legal approach, this paper refutes the notion that homosexuality and protection of sexual minorities, including recognition of the right of a person to marry another person of the same sex, are Western concepts inapplicable in Hong Kong, a conservative Confucian society. In doing so, the author also questions the place of Christianity and the Bible in Hong Kong society and dissects those verses in the Bible on which opponents of homosexuality and sexual minority rights rely. Then, referring to debates on the issue and on judicial activism, the author maintains that recognition of the right of a person to marry another person of the same sex constitutes a constitutional and democratic requirement which an impartial and responsible judiciary must uphold. Finally, the author analyses Hong Kong's international treaty obligations in relation to same-sex marriage and to active protection of the right of equality of all persons, irrespective of their sexual orientations, within its jurisdiction.