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A Court as a Means of Legislative Position Avoidance: Evidence from the Same-Sex Marriage Decision in Taiwan

Published online by Cambridge University Press:  11 May 2022

Yu-Hsien Sung ,
Yi-Ching Hsu  and
Chin-Shou Wang
Yu-Hsien Sung*
Affiliation:
University of South Carolina, South Carolina
Yi-Ching Hsu
Affiliation:
Institute of Political Science, Leiden University, Leiden
Chin-Shou Wang
Affiliation:
National Cheng Kung University, Tainan
*
*Corresponding author. E-mail: ysung@email.sc.edu
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Abstract

In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a counter-majoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.

Keywords

judicial policy-makingcourtlegislative deferralsame-sex marriage
Type
Research Article
Information
Asian Journal of Law and Society , Volume 10 , Issue 1 , February 2023 , pp. 107 - 130
Copyright
© The Author(s), 2022. Published by Cambridge University Press on behalf of Asian Journal of Law and Society

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