Gay Marriage In Hong Kong

1.  2017.....Was The Tide Shifting in Asia..?
2.  2017.....Gay Marriage In Taiwan
3.  2018.....Hong Kong Government vs Same-Sex Benefits
4.  What FuelMix Thinks


1.  2017...Was The Tide Shifting In Asia..?

1.  In 2017, we wondered whether the conservative tide in Asia was shifting.  At the time, there was a landmark decision in the High Court allowing same-sex benefits to the partner of a gay Hong Kong civil servant who had legally married his white partner in New Zealand.

2.  Considering that the Hong Kong Government was the city's largest employer, the decision had implications for the private sector as well - although the reality is that several large companies like Cathay Pacific Airways, HSBC and international investment banks, were already providing same-sex benefits to those who were legally married or in a civil union.


2.  2017.....Gay Marriage In Taiwan

1.  Shortly afterwards (in fact, just days afterwards) the Constitutional Court in Taiwan declared that same-sex marriages should be legal.  See the post in May 2017 entitled, Same-Sex Marriage In Taiwan..? 1  (Part 2 of the post that we uploaded the next day confirming the court's decision, with our additional comments, disappeared on 8 August 2018 as we were attempting to republish it. We pressed the wrong button).

2.  There was widespread gay jubilation in Hong Kong and Taiwan. Many Hong Kong pundits declared that gay marriage was also about to come to Hong Kong.


3.  2018.....Hong Kong Government vs Same Sex Benefits

1.  Then, the Hong Kong Government decided to take the case allowing same-sex benefits in the civil service, to the Court Of Appeal.  It was heard at the end of May 2018 and the decision was massively conservative.  The Court reversed the decision of the High Court on 2 main grounds:

(1).  By declaring that the Hong Kong Government, as not just a private employer but as a "custodian of Hong Kong's socio-moral values" had a legitimate aim to protect the institution of traditional marriage.  By granting same-sex benefits, which were unique to "marriage" (i.e. between a man and a woman), the status of "marriage" would significantly diminish in the eyes of the public.  Moreover, the extension of granting same-sex benefits would inevitably spread to public housing, social welfare, public medical benefits, employment benefits and protection, pensions and life insurance;

(2).  The Court also looked at Article 37 of the Basic Law, Hong Kong's constitution, which states:

“the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.

The Court decided that the word "marriage" meant the union between a man and a woman.  Therefore, there was fundamental constitutional backing for the government's legitimate aim.  To give same-sex benefits:

" is to offend, challenge, question, confuse or subtly change [Hong Kong] society's established understanding of the concept of marriage, which....is rooted in its traditional historical, social, moral or religious background and values, as embedded in Articled 37 of the Basic Law".

4.  What FuelMix Thinks

1.  Several times in this blog, we said that while we support same-sex relationships, we do not support it by way of "marriage".  This is because "Marriage" is infused with religious and social baggage and there is no shortage of those screeching in favour of traditional "family values".

2.  We stated that Civil Union was the way to go.  In other words, separate but equal, with full rights of inheritance, next-of-kin status, employment and pensions benefits, employment protection against discrimination, raising a family, divorce proceedings etc.  The effect would be to remove same-sex relationships from the baggage-laden concept of  "marriage", thereby depriving conservatives of any ammunition.

3.  The decision of the Hong Kong Court Of Appeal is a prime example of such social and judicial conservatism.

4.  At some level, however, they're right.  The Government does take the lead in socio-moral values.  This is because Law is a reflection of prevailing morality at a given point in time.  But, society's views change over time.  That's why Laws are amended or repealed and new ones brought in.  It's an evolving organic process as societies become more discerning.

5.  The Court's reliance on Article 37 of the Basic Law is more problematic. They have equated marriage with having children.  In the context of same-sex relationship, that doesn't necessarily follow.

6.  We think that the phrase, “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law” is disjunctive.  In other words, the freedom of marriage of Hong Kong residents should apply to their right to marry legally overseas.

7.  The Court alluded to the possibility of same-sex marriage being allowed IF the Basic Law was amended.  Here lies a wider problem.  China has repeatedly stated that it will NOT amend the Basic Law........not because they're against same-sex marriage, but because local pro-democracy activists (who may, or may not, be foreign instigated) have been repeatedly calling for an amendment to the Basic Law regarding the voting for the city's Chief Executive.  From China's point of view, that's understandable. They do NOT want to create a precedent for future amendments.

8.  This matter will now go to the Court Of Final Appeal.  It remains to be seen whether they will be just as conservative as the Court Of Appeal, or more liberal.

9.  Note that in July 2018, the Court Of Final Appeal ordered the Immigration Department to grant a lifelong same-sex couples visa to a lesbian's partner.  Therefore, for the purposes of a Dependent Visa, Gay Marriage and Civil Union that took place overseas, are recognized in Hong Kong.


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