Status of Same-Sex Marriage Legislation in Japan

-   Masahiro Sogabe (download)

This article provides an overview of the status of same-sex marriage legislation in Japan. While there are lawmakers in Japan who advocate for recognition of same-sex marriage through legislation, conservatives committed to the traditional family view predominate in the Diet. Article 24 of the Constitution is a provision on marriage, but because it states that “marriage shall be established solely on the basis of the consent of both sexes,” there are a few scholars who argue that the Constitution guarantees same-sex marriage, while there are few who argue that it prohibits it. The majority holds that the law can recognize same-sex marriage. There have been lawsuits filed seeking recognition of same-sex marriages, but it is unlikely that the Supreme Court, with its extreme judicial reluctance, would find them unconstitutional. On the other hand, public opinion’s understanding of same-sex marriage has gradually improved in recent years, and while the road is not easy, it will be interesting to see what happens in the future.

Minority Rights and Democratic Consensus:
The Irish Same-Sex Marriage Referendum

-  Oran Doyle (download)

29 countries in the world have introduced same-sex marriage. 22 have done so by legislation, four by judicial decision, two by a combination of judicial decision and legislation, and one by popular referendum. The Irish same-sex marriage referendum of 2015 has been criticised for putting minority rights to a popular vote. This criticism largely misunderstands the legal and social context of the Irish referendum, however. A necessary component of constitutional amendment, the referendum required campaigners to build a robust democratic consensus in favour of same-sex marriage, strongly entrenching minority rights. These benefits would likely not have arisen, however, if a referendum had been a choice on the part of political actors rather than a legal necessity. It is therefore unlikely that the Irish experience, whatever its merits, can be straightforwardly translated to other jurisdictions. Nevertheless, the Irish referendum campaign yields some lessons for other activist campaigns for same-sex marriage. In particular, the story-telling of gay people--and the responses of their fellow citizens--may have been more significant than the articulation of more public values, such as equality. 

First Comes Marriage, Then Comes Baby, Then Comes What Exactly?

- Erez Aloni (download)

Taiwan’s legalization of same-sex marriage is an event of international importance concerning the rights of LGBTQ+ individuals and partners; further, it constitutes an opportunity to examine the state of LGBTQ+ equality in Taiwan and elsewhere. To this end, through theoretical and comparative lenses, this Article asks
what equality for LGBTQ+ means and what comes after marriage. It offers perspectives on the past, present, and future of the intersection of same-sex marriage and equality. Looking at the path to same-sex marriage in Taiwan, the Article argues that the Taiwanese Constitutional Court’s ruling legalizing same-sex marriage maintained a line between domesticated liberty for LGBTQ+ people, on the one hand, and limits on that population’s liberty to form families, on the other. The law that implemented the ruling kept this tension; hence, it enfolds discrimination against LGBTQ+ individuals, especially in the area of family formation. But Taiwan is not exceptional in holding onto parentage discrimination after legalization of
same-sex marriage. The European perspective teaches that discrimination in parentage remains after legalization but disappears over time. Experience fromelsewhere also clarifies that the fight for equal parental rights can be difficult, andthat much opposition to LGBTQ+ equality is embedded in biases related toLGBTQ+ parenting and in racism.

Finally, moving to explore future paths to parity, the Article contends that, forvarious reasons including those indicated above, marriage cannot serve as the finalfrontier of LGBTQ+ equality. Substantive equality in Taiwan requires, at the least,the repeal of adultery as a grounds for divorce and for civil remedies. A broader view of equality and autonomy also warrants adopting a regime in which marriage is not the only mechanism to access rights and benefits that are linked to relationships of interdependency. Likewise, creating more options for legal recognition of relationships is imperative for individuals in diverse types of relationships, and for LGBTQ+ individuals in particular. Lastly, the Article suggests that discrimination that currently exists in the area of obligations toward parents-in-law has a liberating aspect.

The Taiwanese experience is a teaching moment for LGBTQ+ movements and scholars around the globe. It calls on other scholars to avoid generalizations in framing paths to liberty and equality by being sensitive to local differences, and to reconsider the place of marriage as the golden standard of LGBTQ+ equality.

Supervised Child Visitation for Non-Custodial Parent:
A Study of Court-Assisted-Visitationand Its Monitoring System in Taiwan

- Mogana Sunthari Subramaniam (download)

This article presents a study of supervised visitation services offered by Taipei, New Taipei City, Hsinchu and Kaohsiung districts in Taiwan. It is based on a review of practices and services offered by Visitation and Family Services Centers based at the courts operated by the city/county governments, NGO and private agencies. It is a qualitative research conducted by way of interviews with judges ordering supervised visitation and social workers handling supervised visitation meetings. This study found that the courts started encouraging supervised visitation in separation and divorce cases involving domestic violence and high levels of family conflict after the introduction of the Domestic Violence Prevention Law in 1998. The
best interests of the child principle enshrined in Article 1055-1 of the Taiwan Civil Code is the fundamental consideration for judges and social workers to determine if supervised visitation should be allowed, restricted or discontinued. Both legal and non-legal experts are working hand-in-hand to promote continued contact between the non-custodial parent and the children of high conflict, separated and divorced families.