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Friday, November 15, 2013

Statement on the “Meeting on the Legalization of Same-Sex Partners” at the ROC Ministry of Justice/ Dr. Immanuel Chih-Ming Ke

Statement on the “Meeting on the Legalization of Same-Sex Partners” at the ROC Ministry of Justice



Immanuel Chih-Ming Ke
Associate Professor, Department of Ecological Humanities, Providence University in Taiwan. 
Adjunct Associate Professor of Department of Philosophy, National Taiwan University. 
Oct. 14th, 2013. Civil Service Development Institute. Room 203.
Translation © Sola Scriptura 2013



     1. The “Meeting Objective” for the “Proposal of ‘Meeting on the Legalization of Same-Sex Partners’ at the ROC Ministry of Justice,” which is attached to the “Meeting notification letter of Ministry of Justice” (September 30th, 2013. No. 10203510820) clearly states: “According to the 78th point of ‘Concluding Observations and Recommendations of the Review of the ROC’s Initial Reports on The International Covenant on Civil and Political Rights (ICCPR) and The International Covenant on Economic, Social and Cultural Rights (ICESCR),’ The Experts are concerned at the lack of legal recognition of the diversity of families in the country and that only heterosexual marriages are recognized but not same sex marriages or cohabiting partnerships. This is discriminatory and denies many benefits to couples of same sex or cohabiting partners.” Thus, the responses to the Concluding Observations and Recommendations of two Covenants become the objective of this meeting.
    The more complete opinions of mine, on the legalization of same-sex marriage or same-sex partners, are presented in the statements of “Advisory Meeting of Experts on the Legalization of Same-Sex Partners” on April 14th, 2012, which was held by Professor Yu-Zu Tai of Taipei University, and “Focus Meeting of the Research on the Legalization of Same-Sex Marriage in Taiwan” on August 15th, 2013, which was held by Professor Shyue-ren Teng of Central Police University. Please consult these statements. The following section is my personal opinion on the Concluding Observations and Recommendations of two Convents, and a brief statement on whether same-sex marriage should become the ethical relationship and marriage system that are positively entitled to protection by the State.

    2. The Articles of two Covenants concerning marriage and family are: Article 23 of “The International Covenant on Civil and Political Rights” and Article 10 of “The International Covenant on Economic, Social and Cultural Rights.” Examining the Articles of two Covenants carefully, there is no implicit or explicit indication that we should validate the diversity of families, and there is no implicit or explicit indication that we should legislate for the rights of same-sex marriage or same-sex partners to organize a family. 
    On the contrary, two Covenants are founded on Article 16(3) of “The Universal Declaration of Human Rights (UDHR)”: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Obviously, the family that should be entitled to protection by society and the State is “the natural and fundamental group unit of society.” “[N]atural” should be emphasized in particular because the family that can propagate new human life and new families is but “the fundamental group unit” which develops “naturally,” and only heterosexual marriages have the ability to form society naturally. In view of the above, Article 16(1) in “UDHR” and Article 23(2) in “ICCPR” declare that “Men and women” of full age have the right to marry and to found a family; it is absolutely nothing to do with same-sex marriage and same-sex family. 
    Therefore, Article 23(4) of “ICCPR” clearly points out that “provision shall be made for the necessary protection of any children,” in the case of marriage dissolution. Similarly, Article 10(1) of “ICESCR,” provision is made for the rights of family. After this, Article 10(2) and 10(3) follow: Protection should be accorded to mothers, and protection and assistance should be taken on behalf of all children and young persons. Obviously, two Covenants regard that fetuses, infants, children, and adolescents are the “natural” result of family. That is why the provision for the protection of mothers, children, and adolescents is made, and it is stressed that these individuals shall be particularly protected and assisted by society and State, as soon as the provision for the rights of family are made. 
    Obviously, two relevant Covenants mention that the relationship between family and new generations (i.e. children, adolescents) is based on the prerequisite thought of heterosexual marriage; in other words, the Covenants validate that the family that shall be protected is the heterosexual marriage and its family. Thus, the experts of Concluding Observations and Recommendations consider, “at the lack of legal recognition of the diversity of families in the country and that only heterosexual marriages are recognized but not same sex marriages or cohabiting partnerships”; in fact, it stands to reason, and it does not violate the Articles and spirit of the two Covenants. As for what it states, “This is discriminatory and denies many benefits to couples of same sex or cohabiting partners” is a groundless judgment, and which is a biased opinion acquired from the over-interpretation of the two Covenants. Such opinions are, as a result, improper. 
    Consequently, according to the above-mentioned Articles of the two Covenants about family, what we shall protect and assist positively is heterosexual marriage, instead of “alternative” marriage, because only heterosexual marriage has the natural ability to form a family, and the family is thus “the natural and fundamental group unit” of society. 

    3. There is no doubt that the basic human rights of homosexuals, as a human being, shall be protected, but it doesn’t mean homosexuals can redefine the institution of marriage; and further, it doesn't mean founding a so-called “same-sex marriage” is a kind of basic human right. In fact, the connotation of “the fundamental human rights” is not that perspicuous. What articles shall be included is still debatable, but no matter what, “same-sex marriage” is not definitely one of them. 
    In addition, even though getting married is a fundamental human right, it is not to mean those who have the right to do so can establish marriage covenants randomly. It is just like those who have the right to freedom of opinion and expression cannot speak at random. All the basic human rights are such. What is more important is that, the fundamental rights of politics and law are basically negative rights; that is, the State shall not violate and interfere with its power, and whether the State has the obligation to assist the accomplishment of it still remains debatable. For instance, the State shall not interfere with the right to freedom of religion, but it doesn’t mean the State has the obligation to assist humans to accomplish their religion; and further, it doesn’t mean all the religions shall be approved. Therefore, even though establishing same-sex marriage is a basic human right, it doesn’t mean the State has the obligation to assist citizens to accomplish the right, not to mention that same-sex marriage cannot be deemed as a fundamental human right. 
    In terms of practicality, what must be protected and assisted positively by the State is obviously about positive rights of the accomplishment of the value of humanity or human well-being because these rights concern the accomplishment of the well-being of the entire State and even the entirety of human beings. For me, homosexual behaviors and same-sex marriage have nothing to with of the accomplishment of the value of humanity and human well-being. The State at most act negatively by not interfering it (just like our country), but it shall definitely not protect and assist the accomplishment of it. Furthermore, the State bears the responsibility to differentiate the same-sex marriage from the heterosexual marriage which can accomplish the value of humanity and human well-being, and to deal with them separately, because the value of them differs from each other respectively. 

    4. In terms of the legal principle, what are the inherent quality and the essential factor of marriage which is marriage but not any other kind of ethical relationships? What is the basis of the so-called “same-sex marriage” notion that can be regarded as marriage? What is the basis for two (even more than two) homosexuals to consider that they can establish marital relationships? So far, we have never heard any persuasive demonstration. All we have heard is but the hollow slogan and appeal such as “the same as heterosexuals, homosexuals fall in love with each other and want to marry,” and they “have the right to marry.” If two people have the right to marry only because they fall in love with each other or they want to marry, and then who else can be restrained from getting married? What are the restrictions of marriage? However, marriage is absolutely not like this. Marriage has its fundamental restrictions so that those who want to marry cannot always get married. 
    If our State declares that same sex people can get married, and then the State has the obligation to notify the citizens the basis of the restrictions that concerns about marriage in Civil Law: Family (Article 980, 983, 985). Since man and man, woman and woman can get married, why are men under 18 and women under 16 are forbidden to get married? Why marriage between father and daughter, mother and son, brother and sister, grandmother and grandson, and other close relatives is forbidden? Why is it forbidden to marry multiple people? What is the basis of the legal principle to be involved? Therefore, unless our Government clearly declares the inherent quality and the value of marriage, and to negate Justices’ understanding of marriage (Interpretations No. 362, 552, 554) with persuasive demonstrations, otherwise to legalize and to recognize what so-called “same-sex marriage” rashly will bring about the chaos of our family law, and will disorder the ethical conceptions of our people, and this will definitely not bring well-being to our country. 

    5. Finally, according to the above-mentioned, I want to make an earnest request to the Ministry of Justice. The Ministry of Justice must make its decision circumspectly, think conscientiously and carefully, and to speak and act cautiously. The Ministry of Justice shall not fear the new current trend, and shall not submit itself to the groundless demands of sexual rights activist and emancipationists, with the result that will bring calamity to our descendants. 



                                                                                                                          

Appendixes 

Article 16 of “The Universal Declaration of Human Rights”: “1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2) Marriage shall be entered into only with the free and full consent of the intending spouses. 3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” 

Article 23 of “The International Covenant on Civil and Political Rights”: “1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 2) The right of men and women of marriageable age to marry and to found a family shall be recognized. 3) No marriage shall be entered into without the free and full consent of the intending spouses. 4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.” Article 24: “1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2) Every child shall be registered immediately after birth and shall have a name. 3) Every child has the right to acquire a nationality. 

Article 10 of “The International Covenant on Economic, Social and Cultural Rights”: “The States Parties to the present Covenant recognize that: 1) The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. 2) Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits. 3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.”

                                                                                                                                  

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