Judicial Yuan SG: Constitutional Court ruling on same-sex marriage cannot be overridden by referendums

Lu Tai-lang clarified that interpretations made by the court hold the highest possible legal ranking

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Judicial Yuan Secretary-General Lu Tai-lang

Judicial Yuan Secretary-General Lu Tai-lang (By Central News Agency)

TAIPEI (Taiwan News) — Taiwan’s Judicial Yuan Secretary-General publicly announced today that the passage of anti-equality referendums cannot override the Constitutional Court’s 2017 ruling on same-sex marriage.

Secretary-General Lu Tai-lang (呂太郎) clarified what has already been stressed by many keen legal observers: interpretations made by the Constitutional Court hold the highest rule of law and cannot be defeated by referendums.

The anti-equality camp that backed three referendums last Saturday (Nov. 24), fronted by Happiness of the Next Generation Alliance, have led some supporters to believe same-sex marriage can no longer happen in Taiwan. Even international media has incorrectly reported that the government may be compelled to reject the 2017 ruling.

CNA reports that Lu was invited to the Legislative Yuan to attend the Judiciary and Organic Laws committee today (Nov. 29), along with Deputy Minister of Justice Chang Tou-hui (張斗輝), in order to review criminal law draft legislation. DPP legislator Liu Shyh-fang (劉世芳) asked Lu whether the referendum results take precedence over the interpretations from Constitutional Court judges.

Lu explained that the effective ranking of the court’s interpretation no. 748 (prohibition of same-sex marriage violates the constitution) is equal to that of the constitution itself, which holds the highest possible legal ranking.

He said the referendum issues belong to a voting exercise based on legal principles. Relevant government departments will proceed to make laws based on referendum results, but, he stressed, the Constitutional Court’s interpretation no. 748 “cannot be touched.”

Interpretation no. 748 holds that provisions that “do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the purpose of living a common life” violate people’s right to equality and freedom of marriage under articles 7 and 22 of constitutional law. The Legislative Yuan will therefore only be able to decide how to guarantee these rights and freedoms, via amending the Civil Code or establishing a new law.

How they are guaranteed will be decided in accordance with the referendum results.