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By Marc Rubinstein | June 1st, 2018

Sanity Check with Marc Rubinstein. 

The Court of Appeals recently ruled that the Secretary for the Civil Service was justified in denying spousal benefits to Angus Leung Chun Kwong, a 15-year veteran of the immigration department in Hong Kong. Leung married his husband in New Zealand in 2014 and applied for the same spousal benefits to which all other married persons working in the civil service are entitled. For Leung, it was a matter of basic fairness. The Court of Appeals, reversing the decision of the High Court, felt otherwise.

Parsing the 70-page judgment, one is left with the sad conclusion that the Court has bought the old canard, hook, line and sinker, that same-sex marriage somehow threatens the institution of marriage itself. Dressed up in legal language but without evidence or citation to a single supporting fact, the Court boldly writes that recognizing a same-sex marriage performed abroad would “per se undermine” the status of marriage.

This is a patently absurd claim, if you think about it. For how does recognizing the validity of a same-sex marriage legally entered into abroad threaten the institution of marriage in Hong Kong? Would anyone, other than possibly as a form of reactionary protest, forego marriage to a heterosexual partner because commensurate benefits are given to spouses in a foreign same-sex marriage? Are heterosexual marriages weakened and divorces more likely because foreign same-sex marriages are afforded the same rights in Hong Kong as other foreign marriages?  Is the institution of marriage itself so weak that allowing two loving persons of the same gender into it is somehow a mortal threat?  The absence of evidence cited belies the fact that none exists for these fanciful propositions.

Today, more than 25 countries and territories around the globe recognize same-sex marriage, and several others recognize same-sex marriages performed abroad — as Leung is seeking for Hong Kong to do. There is no evidence that the rate or quality of heterosexual marriage has deteriorated in these countries as a result. In the US for instance, the President himself has been divorced twice, both times long before the legalization of same-sex marriage there. Whether his current marriage survives the presidency may be a matter of some interest, but it is certainly unrelated to whether same-sex marriages remains permissible in that country.

The Court in Hong Kong seems afraid that allowing the benefits to be given in this case will open the door to other recognitions — and ultimately same-sex marriage in Hong Kong itself. But one has to ask what there is to fear. The Court notes that Leung is an “avowed homosexual”, a phrase that seems yanked from the 1950s and suggests that being gay or lesbian is somehow shameful or inherently secretive. The entire judgment assumes that recognizing same-sex marriage, wherever performed, will somehow jeopardize the institution of marriage.

It is time to move past this archaic rhetoric in Hong Kong. Taiwan is on the cusp of recognizing same-sex marriage after the judicial decision there last May, and there doesn’t seem to be an impending collapse of heterosexual marriage across the Taiwan Strait (no pun intended).

In Hong Kong, the questions before the courts are narrower.  It is not whether Hong Kong has a legal obligation to perform same-sex marriages in the city, but only whether it is lawful to discriminate between legally valid marriages performed abroad.  And the Court simply finds no justification to do that beyond the un-evidenced threat to heterosexual marriage, and perhaps that segments of the public may not support same sex marriage, which itself is hardly grounds to discriminate. When citing data on local support for same-sex marriage that dates back to 2014, the Court also conveniently omits data from the same study showing that even then, 74 percent of the public supported granting same-sex couples some or all of the rights that married, heterosexual couples enjoy.

Thankfully, the courts in Hong Kong have more bites at the apple coming up soon. The appeal hearing in the QT case is imminent, with the decision likely several months later.  In the QT case, the Court of Appeals found in favor of granting dependent visa status to the lesbian partner of a British woman on a work visa in Hong Kong. The Leung case may also be further appealed.

The Court of Final Appeals must at a minimum reject the ugly rhetoric and antiquated notions of the Court of Appeals decision in the Leung case. Advancing rights does sometimes require, as a practical matter, public opinion and the judiciary to move forward in tandem. The judiciary may be wary of moving too fast, but it must also not forget its fundamental role to make decisions based on the evidence and the law — and not mere deference to ancient animus and perceived opinion.

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