By Gerald Chen
Is the legitimate aim to protect ‘traditional marriage’ an impediment to the legalisation of same-sex marriage?
Summary: The recent case of Leung Chun Kwong v Secretary for Civil Service has begged the question of whether the courts in Hong Kong are in fact moving towards recognizing same-sex marriage. This article argues that same-sex marriage is a right that is well-protected under the Basic Law.
In Leung Chun Kwong v Secretary for Civil Service (2019) 22 HKCFAR 127, the Court of Final Appeal (“CFA”) ruled in favour of the applicant and found both the decisions made by the Civil Service Bureau and the Inland Revenue Department unconstitutional. Some may wonder if Hong Kong is in fact moving towards recognizing same-sex marriage as a result of Leung. Arthur Chen (2019) argued in his article that despite it being a precedent beneficial to future judicial challenges on discriminatory laws, Leung is nonetheless an indirect setback to legalizing same- sex marriage in Hong Kong. Most notably, it was held in Leung that the protection of the institution of marriage is a legitimate aim, and the government only failed because of their inability to draw a rational connection between the aim and the differential treatment. This article argues that while Leung might have seemingly impeded the legalisation of same- sex marriage by reaffirming the legitimate aim, it is the notion of ‘traditional marriage’ that is inherently flawed. This article also argues that the right to marry is protected by the Bill of Rights Ordinance (“BORO”) and everyone irrespective of their sexual orientation should be able to exercise such right under Articles 22 and 37 of BORO.
THE FRAILTY OF THE LEGITIMATE AIM TO PROTECT THE INSTITUTION OF MARRIAGE
Legally speaking, one of the largest impediments to the legalisation of same-sex marriage in Hong Kong is the legitimate aim of protecting the institution of marriage. Courts across various jurisdictions have in multiple judgements reaffirmed the legitimacy of such an aim, for instance in Ghaidan v Godin-Mendoza  UKHL 30. Chen argued that such legitimate aim is well-settled, thus making the legalization of same-sex marriage exceptionally challenging in Hong Kong. In Ghadian, Lady Hale made it clear that the ‘protection’ of traditional families is to encourage people to form traditional families and discourage people from forming others. Nonetheless, in the same judgement, she also stated that it is difficult to see how denying homosexual couples from receiving spousal benefits would encourage the formation of traditional families. Under the same principle, perhaps it is also difficult to see any correlation between denying homosexual couples the right to marry and the formation of traditional families, especially when sexuality is an inherent characteristic that cannot be altered.
Further, the notion of what constitutes traditional marriage is inherently flawed. Marco Wan (2020) argued that the idea of heterosexual marriage being a historic institution that is fundamental to procreation is not unique in Hong Kong. However, this is especially problematic given Hong Kong’s unique history. The fact that section 40 of the Marriage Ordinance (“MO”) only accepts ‘Christian marriage’ as the sole form of marriage is in itself ahistorical. This tradition of Christian marriage was merely imposed by the British governance and was not entrenched in any way. Wan further argued that heterosexual marriage between one man and one woman is ‘an invention of tradition’ caused by repetition over time. Indeed, Hong Kong’s marriage system is not one of long tradition but one that adapts and evolves around its environment over time. Polygamy was a form of traditional marriage, which had nevertheless ended in Hong Kong after the passage of the Marriage Act of 1971.
Some may further argue that the foundation of protecting the institution of marriage is procreation. The Government argued in Infinger v Hong Kong Housing Authority  1 HKLRD 1188 that procreation aligns with the ongoing demographic challenges concerning the aging population in Hong Kong, thus the institution of traditional marriage must be preserved. Perhaps it is true that procreation is important to tackle Hong Kong’s demographic challenges, however, it was settled in Goodwin v United Kingdom (2002) 35 EHRR 447 that procreation should no longer be considered the sole purpose of marriage. This case was affirmed in W v Registrar of Marriages (2013) 16 HKCFAR 112 in support of the idea that marriage is not only about procreation. Ma CJ and Ribeiro PJ explained in their judgement in W, ‘the institution of marriage has evolved so that in contemporary society, the importance attributed by Ormrod J to procreation as the essential constituent of a Christian marriage has much diminished... While many in society will still no doubt regard procreation as of great importance to a marriage, many others will take a different view. Many people now marry without having children, while many others have children without getting married, neither group attracting social opprobrium’. It was contended in W that heterosexual couples who are unwilling or unable to procreate would not be banned from getting married. If the same principle is to be applied, then the fact that homosexual couples could not procreate should not hinder them from getting married.
AN INFRINGEMENT OF EQUALITY
Article 23(4) of the International Covenant on Civil and Political Rights (“ICCPR”) provides that ‘states parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage.’ Similarly, Article 19(4) of BORO also states that ‘spouses shall have equal rights and responsibilities as to marriage.’ In Joslin et al v New Zealand Communication No. 902/1999, two lesbian couples challenged the constitutionality of New Zealand’s marital law, which did not recognize same-sex marriage back then. The applicants submitted a communication to the United Nation Human Rights Committee (“UNHRC”) claiming that the marital law in New Zealand violated their rights under Article 23 (Right to marriage) and Article 26 (Right to equality) of the ICCPR. UNHRC found no breach of the ICCPR and interpreted Article 23(2) to only require states to recognize marriages between men and women. UNHRC also further stated that a state’s ‘mere refusal to provide for marriage between homosexual couples’ was not a violation of Article 26.
However, according to UNHRC General Comment No. 18, Article 26 is a standalone provision with the purpose to ensure any law is free from discrimination and that equality is enshrined. Article 26 is not only limited to the rights listed in the ICCPR but encompasses every piece of legislation enacted by the States Parties. Kristie Bluett (2020) argued that the legal maxim lex specialis was not applied appropriately and that the decision was inconsistent with the UNHRC’s previous stance on Article 26. Indeed, if we look at Article 26 as an overarching provision that prohibits discrimination in any law, it is difficult to see how Article 23(2) as a right guaranteed under ICCPR is not bound by Article 26.
Further, the right to equality is an absolute right that cannot be infringed. Differential treatment can only be justified if it passes the justification test. It is well settled that sexuality is within the category of ‘sex’ and ‘other status’ of Article 22 (see Ghaidan, Toonen v Australia Communication No. 488/1992; Young v Australia Communication No 941/2000). In Kong Yungming v Director of Social Welfare  4 HKC 180, the court further distinguished two categories of impugned grounds under Article 22 of BORO. It was held that if the ground is a personal characteristic inherent to the individual, for example, race, gender, and sexual orientation, a higher standard of review shall apply. In contrast, if the alleged infringed ground is based on general social and economic considerations, only a rational justification is required in justifying the differential treatment. Hence, the court is likely to scrutinize with great intensity when an alleged equality infringement concerns sexuality.
Section 40 of the MO explicitly states that every marriage has to be a Christian marriage or a civil equivalence of it, which implies a union for life between one man and one woman to the exclusion of others. Although MO applies to all, it is an indirect discrimination that puts members of the LGBTQ+ community in a much less favorable condition. The MO essentially deprives members of the LGBTQ+ community of their right to marry, a right that is guaranteed by the ICCPR and BORO. Community consensus can hardly be factored into consideration that prevents the courts from upholding the right to marry for all, as the very purpose of an independent judiciary is to protect minorities from the tyranny of the majority. It is therefore incomprehensible why Article 26 of the ICCPR, as well as Article 22 of BORO, does not govern the MO, and more difficult to see why the courts would allow such an apparent infringement on equality for virtually no societal gain.
About the author
Gerald Chen, 2018 Kwok Scholar, is pursuing a Juris Doctor (Law) degree at the Chinese University of Hong Kong. This article was published in issue 17 of the Hong Kong Student Law Gazette, Winter 2020, of the Chinese University of Hong Kong.