Original
article. I've abridged it and arbitrarily inserted my own commentary. Sorry for that, but it's quicker this way. Note that the official text of the bill has not been released yet, and this is just based on reports, so some details may change.
Edit: The full text of the
draft bill can be accessed here. Original reports seem accurate on a quick skimming; articles 23 and 24 extend all regulations outside the Civil Code and inside Civil Code chapters 1,2, and 5 to same-sex couples. Other rights from 3, 4 (family law, property law) are added piecemeal.
On May 24, 2017, Taiwan's Constitutional Court ruled that the current Civil Code, which defines marriage as between a man and woman, violated the right to marriage and right to equality of same-sex couples, and instructed the government to pass a law in accordance to their ruling within two years. On November 24, 2018, two ballot questions sponsored by conservative religious groups passed which stipulated that the aforementioned statute in the Civil Code which defines marriage a between a man and a woman should not be amended. Today the Executive Yuan has submitted a draft bill which technically implements both (although I think it actually fails to implement the court's order in one aspect). Technically, I think what it is doing is defining a category called "same-sex marriage" outside of the Civil Code which is separate from "marriage." However, as we see below, though this category is almost the same as marriage, it is different in terms of adoption rights.
There's some legal context here (and I may be getting some of it wrong -- let me know if so). Taiwan operates under a civil law system rather than a common law system. In such a system, court rulings do not have the force of law, but courts may compel the government to change laws that they rule as unconstitutional, as they did here, leaving the implementation up to them. This differs from common law systems such as the United States where court rulings immediately have the force of law. For example, after the United States Supreme Court ruled in
Obergefell v. Hodges their ruling immediately became the law of the land -- case law
is law. By contrast, in Taiwan, the law is defined by various codes (e.g. the Civil Code) which the judiciary does not have the direct power to amend. However, the legislature is required to amend the laws to be in compliance with judicial interpretations of the Constitution.
Separately, Taiwan recently passed a Referendum Law. According to the law, referenda are binding, but they do not automatically enact laws; rather, it is up to the government to pass laws in accordance with the results. Furthermore, referenda cannot be conducted on constitutional questions, meaning any constitutional ruling supersedes referendum results.
The Executive Yuan has submitted a draft bill for the "Judicial Yuan Interpretation 748 Implementation Act" (司法院釋字第748號解釋施行法) which intends to implement May 24th ruling by the Constitutional court within their specified deadline. Up until now, Taiwan has 18 examples of laws which took the name of an "Implementation Act" (施行法), the most well-known being the
Two International Covenants Implementation Act (
兩公約施行法). The law is to go into effect on May 24th of this year, exactly two years after the court ruling and just in time to meet their deadline.
The draft bill adds 20 articles to the Civil Code, in which the phrases "same sex marriage" (同性婚姻) and "joint livelihood" (共同生活) appear. Regarding the concerns of the anti-marriage equality camp, the draft bill does not contain the phrase "husband and wife" (夫妻), using the term "the pair of involved parties" (雙方當事人) instead.
Furthermore, the draft bill also brings up the issue of religious freedom. Specifically, it states that the religious freedoms of any person or groups will not be affected by the law.
The bill creates a separate "implementation law" (not in the Civil Code) which defines same-sex marriage using wording identical that of the Constitutional Court, stipulating that "two same sex persons, in order to engage in a common livelihood and establish an intimate, exclusive and permanent bond, have the freedom to marry under equal protection" (相同性別之二人，得為經營共同生活之目的，成立具有親密性及排他性之永久結合關係，以達成婚姻自由之平等保護). In other words, same-sex couples may marry under the regulations of
Part IV (Family Law) Chapter II (Marriage Law) of the Civil Code (
《民法》第4編親屬第2章婚姻規定).
Regarding the contentious issue of same-sex adoption, the draft submitted by the Executive Yuan applies statutes in the Civil Code pertaining to adoption of stepchildren. That is, when same-sex couples marry, they effectively adopt each others' biological children, but they cannot adopt children otherwise. The adoption of stepchildren is to follow the same procedure as for heterosexual couples, i.e. to require the approval of social workers.
The draft bill also stipulates that any issues
outside of the Civil Code regarding spouses or marriage not covered in the present text automatically extend to same-sex couples, for example pension laws and tax laws. The law also positively identifies the equal application to same-sex couples of statutes in the Civil Code regarding divorce, custody, duties of spousal care, incest, guardianship, bigamy, marriage fraud, everyday duties, sharing of housework, and mutual inheritance. (Comment: the implication is that any statutes in the Civil Code not explicitly mentioned do not extend to same-sex couples.)
I'm a little disappointed with the law in that it doesn't give same-sex couples the right to adopt amongst other rights in the Civil Code not explicitly granted. I expect adoption will go to the courts again, and this is probably the government's way of punting a contentious issue to them. I think marriage equality groups have a good chance to win, since the previous court ruling was on the basis of equal rights, and personally it makes zero sense to me why same-sex couples shouldn't be able to adopt. That is, why should same-sex adoption be a particularly toxic combination in the eyes of the law... if heterosexual adoption is fine and same-sex biological child rearing is fine? I just don't see an argument here.
Regarding the specific implementation (i.e. wording and separate act vs. Civil Code), I think it's unlikely the court will rule on those issues. Probably it will stay this way (two separate but equal categories) for awhile until it becomes a totally uncontroversial change.
I think it's also likely that conservative groups will push for more ballot questions given their recent success, particularly on adoption. There are real questions here: in my opinion, the CEC (Central Election Commission) should throw out obviously unconstitutional ballot questions. If they don't, I think that it is reasonable for the government to ignore the results, putting the groups who propose unconstitutional ballot questions on the offensive in any court case and discouraging such practice in the future.
Finally, I hope that marriage equality groups will continue to engage society and try to move public opinion; conservative groups organized quickly after the court ruling which contributed to their success in the ballot box. I can see public opinion turning in favor of same sex couples in less than 10 years if they do this right -- in fact, public opinion was actually on their side before the campaign by conservative groups.
