Court as Political Evasion: The Case of Interpretation No. 748 in Taiwan

• In Event: Legislative Politics and Emerging Social Issues in Taiwan

Abstract

The same-sex marriage issue in Taiwan has long been a controversial issue which goes beyond voters’ party identification. According to the most recent survey reports of Taiwan Social Change Survey (TSCS), the two major parties share a roughly similar distribution of their supporters’ attitudes on the same-sex marriage issue: even though in general the support of same-sex marriage is gradually increasing in Taiwan, there is still a nontrivial percentage of voters against this issue within both parties, 42.45% of Kuomintang supporters against the same-sex marriage whereas 35.7% of Democratic Progressive Party followers against this policy in the 2015 TSCS survey. This split public opinion on same-sex marriage makes this issue a tough topic to get settled via the legislative channel. Legislators of both parties were hesitated to deal with this controversial issue. Up until 2017, the Constitutional Court handed down the judicial interpretation No. 748, ruling that it is unconstitutional not to allow two persons of the same sex to form a union(marriage) in the current Civil Code and the Court ordered the law should be amended within two years. Many news reported that Taiwanese would be the first state to legalize the same-sex marriage in Asia, However, this seeming progress does not last long. The same-sex marriage case soon faced a major backslide next year where Taiwanese voters rejected the court’s ruling in the 2018 referendum. In this article, we follow Dahl ’s argument on the judicial subordination, suggesting that rather than optimistically view the Court as conducting the counter-majoritarian task of protecting the minorities, the handing down of Interpretation No. 748 by the Constitutional Court functioned as a political evasion. Politicians have the incentive to duck blame for unpopular policies, as such, when facing controversial issues, the legislative majority might want to delegate politically divisive to the court for avoiding political blame. We argue that the same-sex marriage case exemplified this blame-avoidance account of the politicians, most legislators purposefully delegate this unpopular policy to the Court for dodging future backfire.

Authors

• Yu-Hsien Sung, University of South Carolina

• Chin-shou Wang, National Cheng Kung University