On The Constitutional protection of The Marriage－ Focusing on Same-Sex Marriage
Date Issued
2012
Date
2012
Author(s)
Lin, Chia-Yi
Abstract
The issue of same-sex marriage has been debated in recently years, This thesis tries to find another way to look into the constitutionality of same-sex marriage, When I discuss the issue concerning whether the same-sex marriage should be constitutional or not, I researched on the change of the meaning of marriage in history, and the impact of the meaning of marriage from social context.
So the thesis of this essay is “Is marriage protected by the constitution? if the answer is yes, is the constitution also predetermined the value and query in marriage?” As I address the issue concerning same-sex marriage, the predetermined values means that our constitution, which requires only heterosexual marriage, is protected under the constitutional meaning of marriage. However, this thesis wants to demonstrate that marriage has no prerequisite on the constitutional protection, that is, the marriage in constitutional context does not restrict to one man and one woman. As the result, if there is a regulation restricts marriage within one man and one woman, it may infringe the constitutional protection without having strong government interests.
On research method, this thesis first refers to the judgements from the U.S and the discussions concerning same-sex marriage in Taiwan, finding that marriage is preexisted before the law and the constitution. Therefore, I look into the history in western cultural and in Taiwan, hoping to learn the meaning of marriage and the model which people live together. Try to illustrate the meaning of marriage is flexible and fluid.
After historical analysis of the meaning of marriage, I look back to the legal practice in Taiwan to analyze the constitutionality of same-sex marriage in legal context. When we look into the interpretations concerning marriage by Justices of The Constitutional Court, we can know that the court suggests that one man and one woman is the prerequisite to the marriage under the constitutional protection.
In the conclusion, under the analysis from the historical meaning and social context of marriage, my opinion is that under constitutional protection, there is no prerequisite to the marriage. Constitution should prevent the right of marriage from infringe, and should not set restriction for the marriage. However, legislator could somehow restrict constitutional right by the law, but there should be a compelling interests for the purpose of restriction.
Subjects
Same-sex marriage
article 22 of the Constitution of the Republic of China (Taiwan)
unenumerated fundamental rights
the institution of marriage
historical analysis of marriage
Type
thesis
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