SAME-SEX MARRIAGE

An Old and New Issue in Asia

Professor Douglas Sanders1 September 1, 2013

AN OLD ISSUE IN ASIA

Same-sex attraction has a long recorded history in Asia. Mr. Justice Shah (whose trial level decision in Delhi High Court legalized adult, consensual male same-sex acts), has said: There is enough evidence to show that homosexuality has been prevalent and recognized in all its forms during ancient and medieval Indian history. Temple imagery, sacred narrative and religious scripture do suggest that homosexual activities in some form did exist in ancient India. Kamasutra devotes an entire chapter to Auparistaka homosexual intercourse. In Hinduism some of the divinities are androgynous and some change gender to participate in homoerotic behavior.2 Lesbian and gay homoerotic carvings feature on the famous medieval Indian religious temples of Kanarak and Khajuraho.3 Male homosexual activity was accepted or tolerated at the Muslim court in Mogul India.4
1

Professor Emeritus, Faculty of Law, University of British Columbia, Vancouver, Canada;visiting professor, LL.M. Business Law, Chulalongkorn University, Bangkok, 1989-2008, member of the governing board for the doctoral program in human rights, Mahidol University, Bangkok, Thailand. Email: sanders_gwb @ yahoo.ca. Resident of Thailand since 2003.
2

Honourable Ajit Prakash Shah, India and Section 377, UN Development Programme, Punitive Laws, Human Rights and HIV prevention among men who have sex with men in Asia Pacific: High Level Dialogue Report, May 17, 2010, 30. When on the Delhi High Court, Mr Justice Shah earlier ruled against the constitutional validity of the section of the Indian Penal Code criminalizing homosexual acts.
3 4

Rakesh Ratti, A Lotus of a Different Color, Alyson, 1993, 22. Ratti, 31-33.

In pre-Meiji Japan, a wealth of fiction and commentary celebrated same-sex love, often involving Samurai.5 Tokugawa-period (1600-1867) Japan has probably the best recorded tradition of male same-sex love in world history. Period novels, poetry, and art all provide extensive representations of the varieties of homosexual love practiced. Incidental information gleaned from biographies, news, scandals and official records as well as testimony from foreign visitors show how widely practiced was male-male eroticism through all strata of society. Tokugawa (homo)sexuality has recently been widely discussed in both English and in Japanese. These researchers amply illustrate the widespread prevalence of homosexual relations among men of the samurai class as well as among urbanites generally.6 At many points in Chinese history homosexuality acted as an integral part of society, complete with same-sex marriages for both men and women.7 Another scholar notes: Whatever the official line, there is robust evidence from vernacular literature that in Southern China especially, away from the centre of imperial rule, a homoerotic culture flourished throughout the Qing. The cult of Hu Tianbao, the Rabbit God, patron diety of male homosexual relationships, seems to have survived repeated attempts to suppress it. In the Fujian area, a formal system of socially sanctioned male marriage is well documented from the late Ming onward.8

5 6 7 8

See, for example, Saikaku, The Great Mirror of Male Love, Stanford University Press, 1990 (a translation of Nanshoku Okagami of 1687). Mark McLelland, Male Homosexuality in Modern Japan, Curzon, 20-21 (references omitted). Hinch, Passions of the Cut Sleeve: The Male Homosexual Tradition in China, University of California Press, 1990, 2. Vivienne Lo, Penelope Barrett, Other pleasures?, in Reyes, Clarence-Smith, Sexual Diversity in Asia, c. 600-1950, Routledge, 2012, 25 at 42.

A third source comments that prior to the introduction of Western sexology into China in the early twentieth century there were sizable historical, literary, and legal discourses concerning male-male sexuality...9 A report by the Law Reform Commission in Hong Kong in 1983 recommended the decriminalization of homosexual conduct in private, citing Chinese traditions. The report found that homosexual activities were not an evil of the West. They existed and were well documented in classical literature in ancient China back to 3,000 years ago. They were indeed quite open and prevalent in the Tang Dynasty, which was about 1,000 years ago.10 These Asian traditions were displaced by Western colonial expansion in the late 19th century, when new German sexological studies were exported to Asia as part of Western science, generally seeing sexual variation as an illness. The Indian Penal Code of 1860 criminalized homosexual acts. It was copied for other British colonies in Asia, Africa and Oceana.11 One scholar has commented that, in contrast to a more or less constant condemnation in Western traditions, in Asia levels of tolerance towards non-procreative acts have waxed and waned over time.12 Dr. Ruth Vanita comments for India:

Tze-ian D. Sang, The Emerging Lesbian, Chicago, 2003, 42. See also, Tan Chong Kee, Same-sex love in ancient and modern Chinese history, fridae.com, June 12, 2007 and June 19, 2007.
10

Johannes Chan, Dean, Faculty of Law, University of Hong Kong, UNDP, Punitive Laws, Human Rights and HIV prevention among men who have sex with men in Asia Pacific: High Level Dialogue Report, May 17, 2010, 5, referring to the Law Reform Commission, Report on Laws Governing Homosexual Conduct, 1983.
11

See Douglas Sanders, 377 and the Unnatural Afterlife of British Colonialism in Asia, Asian Journal of Comparative Law, Volume 4, 2009, 165-206. The adoption of the Napoleonic code decriminalized homosexual acts in half of Europe, with the result that prohibitions were enacted for British colonies, but not those of France, the Netherlands, Portugal or Spain. A criminalization of homosexuality in the Qing Dynasty in China lapsed in the Republican era.
12

Raquel Reyes, Introduction, in Reyes, Clarence-Smith, Sexual Diversity in Asia, c. 600-1950, Routledge, 2012, 1 at 4.

Notwithstanding some scholars discomfort with ascribing to colonialism the modern erasure of earlier homoeroticisms (and other eroticisms), evidence so far available indicates overwhelmingly that a major transition did indeed occur at that historical moment.13 The High Court in Delhi ruled that the colonial-era criminal law against homosexual acts violated the Constitution of India. The government decided not to appeal that decision. The Attorney General explained that the law was imposed upon Indian society due to the moral views of the British rulers.14 Conservative religious figures in India took on an appeal. In arguments before the Indian Supreme Court some history was canvassed: The Court was quick to pick up on the argument of homophobia as a colonial legacy, and expressed a big appetite for historical material on pre-colonial acceptance of sexual and gender diversity. All of a sudden the right-wing claim to tradition was unhinged.15

PROTESTING THE NEW HOMOPHOBIA

Protests against the new intolerance are scattered through local histories. Some couples defied the new homophobia by staging same-sex weddings. Most, we can assume, were private affairs. Some got public notice, some times controversial, but many times in friendly media reports. There are many examples. Indonesia. On April 19th, 1981, two women, Jossie and Bonnie, were married in Jakarta. The reception was a lovely affair with invitations, guests, fine clothes, and members of both families present There were over a hundred witnesses, including friends of the family from the police.

13

Ruth Vanita, Queering India, Routledge, 2002, 4. The industrial revolution began in Europe around 1750. It created, over time, a great technical, economic and intellectual advantage for European powers. The result was the European led globalization and colonialism of the last half of the 19th century. German sexology and British criminal law spread in this context. Commentators in Korea however attribute the shift in tolerance or acceptance to the rise of neo-Confucianism, not Western science.
14 15

Vishal Arora, Counting on the Courts, Bangkok Post, Asia Focus, July 22, 2013, 6. Aksay Khanna, acitivst and commentator, SOGI-List, June 8, 2012.

The wedding was a feature story in two national Indonesian language magazines, Liberty and Tempo. Liberty made it a front-page story.16 The groom, Jossie, wore a white jacket and a blue tie with red flowers, while the bride, Bonnie, wore a long red gown. over a hundred witnesses, including both sets of parents, watched as they fed each other a mouthful [of wedding cake]. This celebration of marriage went smoothly. Among the guests who came that night were several friends from the police17 India. The 1987 wedding of two female police constables, Leela Namdeo and Urmilla Shrivastava made national headlines in India. But both were fired from their jobs.18 Dr. Ruth Vanita sets out many of the Indian stories in a book rich in Indian religious and social history.19 The dark sides of the stories in India are the frequent accounts of joint suicides by young women after being forcibly separated or required to marry men.20 Cambodia. There was considerable publicity about a 1995 marriage between two women in Kandal province in Cambodia. The authorities thought it was strange, but they agreed to tolerate it because I have three children already (from a previous marriage). They said that if we were both single (and childless), we would not be allowed
16 17 18 19

Tom Boellstorff, The Gay Archipelago, Princeton, 2005, 62-3.

Cover story, First in Indonesia: A Lesbian Marriage, Attended by 120 Guests, Liberty Magazine, June 6, 1981; quoted in Tom Boellstorff, The Gay Archipelago, Princeton, 20005, 62. Geeta Patel, Homely Housewives Run Amok, (2004) 16 Public Culture, 131 and 147. Ruth Vanita, Loves Rite: Same-Sex Marriage in India and the West, Penguin India, 2005. Professor Ruth Vanita describes marriages, elopements, the legal attempts of parents to retrieve daughters who have eloped with a woman, and suicides of female couples whose life together has been blocked.
20

See Vanita (2005). Bina Fernandez, Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India, India Centre for Human Rights and Law, 2002, lists joint suicides at pages 113-116. See also Darshana Sreedhar, Mapping the Queer Movement in Kerala, published in the magazine of the Kolkata based lesbian organization, Sappo for Equality, magazine title In Her Own Voice, June, 2011; Darshana Sreedhar, Sahayatrika, In its Making: Mapping the Queer Movement in Kerala, paper prepared for the September 2011 National Queer Conference, Kolkata, organized by Sappho for Equality, copy in possession of the author. Darshana Sreedhar is an M.Phil student at the Centre for Studies in Social Sciences, Kolkata.

to get married because we could not produce children. The marriage appeared to have official approval and was reportedly a popular event, with 250 attendees, including Buddhist monks and high officials from the province. 21 In 2004, King Sihanouk, while still on the throne in Cambodia, watched the television coverage of the same-sex weddings that Mayor Gavin Newsom had allowed in San Francisco. The King was moved by the joy he saw expressed, particularly as pioneer activists Del Martin and Phyllis Lyon, now around 80, were married after five decades of living together. He said such marriages should be allowed in Asia. He later abdicated in favor of his gay son, who had trained and performed in ballet. Cambodian activist Srorn Srum knows of 15 lesbian couples who have been issued marriage certificates in four provinces. In practice they are married, said Srun. They have lived together for many years and the chief [of the village] says they live together for a long time already so we dont mind, we accept them. Srun said he thinks lesbian couples are accepted more than gay couples because they are more likely to stay in their hometown and live quiet lives.22 Cambodian law defines marriage as between a man and a woman, but local authorities have issued family books to these couples, the formal legal recognition of marriage. Taiwan. One of the best known public weddings in Asia was that of the highly regarded Taiwanese author Hsu You-sheng and his American partner Gary Harriman in 1996. It was a grand event, with 500 guests at the Howard Plaza Hotel in downtown Taipei. Chen Shui-bian, then the mayor of Taipei, sent a representative. City officials and members of the opposition Democratic Progressive Party were there. One cable TV station gave the wedding live coverage. One of the state networks produced a special.23
21

Cambodian Center for Human Rights, Coming Out in the Kingdom: Lesbian, Gay, Bisexual and Transgender People in Cambodia, December, 2010, 20. The story in the Phnom Penh Post bore the title Gay marriage: not completely illegal after all.
22

Anna Leach, Lesbians legally married in Cambodia despite no law change, GayStarNews, May 6,

2013.

Other marriages followed in Taiwan. Two men got married in Taipei at a five star hotel on human rights day in 2005, an event attended by family members and representatives of gay rights groups. This was said to be the third public same-sex wedding event in Taiwan.24 In August, 2011, one of the couples who had been part of a group marriage celebration in 2006 applied for a marriage license. After a refusal the couple went to court. On April 10, 2012, the couple, with their respective mothers, appeared for a pre-trial hearing. The mothers expressed love and support.25 But elders intervened. Seniors in the family raised fears about the impact of same-sex marriage on the order of inheritance, and brought pressure on the couple and on one of the mothers to discontinue the case.26 Four months later the couple resumed the litigation.27 On December 20th, 2012, the Taipei High Administrative Court, postponed its decision, having decided to seek a ruling from the Council of Grand Justices on the constitutional issues involved, before making its own decision. The couple said they had received death threats on Facebook, and discontinued the case in January, 2013. In March, a different couple took up the issue, putting a court challenge back on track.28 Vietnam. We know of perhaps a dozen marriages in Vietnam. In February, 1997, two men were married in Ho Chi Minh City. They celebrated with a lavish banquet and 100 guests in a major hotel. Media coverage provoked public controversy. Authorities said that they had broken no law. In March, 1998, two women married in the province of Vinh Long. The local Peoples Committee refused to register the marriage. In June, 1998, Vietnams national assembly banned same-sex marriage.
23

AP, Gay wedding in Taipei, November 11, 1996. Chen said a stomach ailment prevented his attendance, but he sent a representative. The couple had met when Hsu was a student in New York. They returned to the US after the Taipei wedding.
24 25

See www. fridae.com, December 14, 2005.

See two stories on www. fridae.asia: Taiwanese gay couple to appeal unsuccessful marriage registration in court, 5 April 2012; Mothers of Taiwanese gay couple appear in court to show support, 12 April, 2012.
26 27

Taiwanese gay couple suspends registration fight, Gay Star News, April 20, 2012. Anna Leach, Why is Taiwan the best place to be gay in Asia?, Gay Star News, November 12,

2012.
28

Anna Leach, Taiwan gay rights activist takes up legal same-sex marriage battle, GayStarNews, March 22, 1013.

After the legislation passed, Communist Party officials descended on the Vinh Long home of Cao Tien Duyen, 23, and Hong Kim Huong, 30, and secured their signature on a promise that they would never again live together.29 In June, 2011, the internet circulated pictures of a new public marriage event of two men in a luxurious restaurant in Ho Chi Minh City, using only their nicknames. Weddings have continued in Vietnam: A gay couple in the Mekong Delta province of Kien Giang recently exchanged wedding vows at a ceremony attended by their parents and hundreds of guests; a lesbian couple in Ca Nau Province only halted their wedding in February after authorities objected; a lesbian couple in the Ha Noi and a gay couple in Sai Gon too grabbed headlines after photos of their weddings and celebrations went viral online.30 Philippines. Father Richard Mickley, a gay Catholic Priest, has held an annual Queer Pride Mass in Manila since 1991 at his St. Aelred Monastery Chapel. From 2002 he has conducted weddings.31 A 2003 wedding between two men sparked media coverage and significant public attention.32 In 2004 a marriage between two lesbians was featured on television show-business news programs on two different networks. The Chair of the Movie and Television Review and Classification Board, Marissa Laguardia condemned the coverage in a memo to the stations, calling homosexual relationships an aberration. Quickly she distanced herself from the memos language, saying she had friends and knew professionals who were lesbian and gay.33 Human Rights Watch, based in New York, publicly protested Ms Laguardias memo. In 2005, Marion Lacsamana, a librarian at a Catholic womens college in Manila, had his
29 30 31

Vietnam bans gay marriage, Rex Wockner, International News, June 8, 1998, copy in possession of the author; C Barillas, Vietnam forces married lesbian couple to separate, Data Lounge, May 28, 1998. A Change Brewing, July 24, 2013, circulated on the AP Rainbow list July 26, 2012. Queer Pride Mass and Mass Wedding, June 23, 2002, announced by an email to the AP-Rainbow list, June 3, 2002, copy in possession of the author. Mickley said he was inspired by mass weddings held at each of the LGBT March on Washington actions in the US.
32

Notice of Events at St Aelreds 9th Anniversary Celebration, circulated on the AP Rainbow list, July 19, 2004, copy in possession of the author. The Notice indicated that same-sex couples would be able to renew their vows at the event, presided over by Father Mickley.
33

Philippine Inquirer, May 27, 2004.

employment contract not renewed after publicity of his same-sex marriage by Father Mickley. He challenged the action as employment discrimination, but was unsuccessful.34 A second gay pastor has emerged conducting dozens of weddings across the Philippines: I performed a lesbian wedding in a province in September, and usually provinces are very conservative, but the whole community was there celebrating, even the town Mayor! said Reverend Ceejay Agbayani of LGBTS Christian Church in Quezon City, Metro Manila (the S is for straight). Reverend Agbayani is planning a mass wedding for same-sex and straight couples on 8 June, 2013.35 In February, 2005, two members of the Communist New Peoples Army exchanged wedding vows, in the company of their fellow insurgents. Ka Andres and Ka Jose exchanged vows in a heavily guarded ceremony before local villagers, friends from the city and their comrades in arms. They are considered the first homosexual couple in the New Peoples Army (CPA) who were wed by the Communist Party of the Philippines. During the wedding sponsors draped a sequined CPP flag around the couples shoulders. The flag was held in place by a long, beaded cord which also went around the couple and the sponsors symbolizing that their marriage would be made stronger with the help of comrades and the masses. Andres held a bullet, as did Jose and each others hands. The bullets represented their commitment in the armed struggle.36 While this was apparently the first such marriage, the NPA already had a platform supporting gay rights and same-sex marriage.

34

Cory Martinez, Gay wedding irks Miram College, Peoples Tonight, November 19, 2005, circulated by Progay Philipppines to the AP-Rainbow list, November 18, 2005, copy in possession of the author.
35 36

Anna Leach, Filipino people are ready for same-sex marriage, says gay pastor, Gay Star News, November 21, 2012. Rolando Pinsoy, Reds officiate first gay marriage in NPA, Philippine Daily Inquirer, February 7, 2005.

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Japan. In 2007 media covered the same-sex wedding of Kanako Otsuji, the first open lesbian to be elected to public office in Japan. The couple wore white dresses and carried roses.37 China. In January, 2010, a page one story in the English language China Daily called a same-sex marriage in a gay bar in Chengdu, Sichuan, the first such public event in the country. We are no longer hiding any more. The wedding is our happiest and most precious moment, Zeng, a divorced architect, told the paper. Thousands of gays and lesbians get married in France, Finland, the UK. Why couldnt we? More than 200 of the couples gay friends attended the ceremony38 Both Peoples Daily and Shanghai Daily covered a Beijing wedding of two men in January, 2011. They celebrated the comparatively open event with 50 guests at a restaurant in the capital city.39 In the same month an elderly gay couple became an internet sensation on Sina Weibo, Chinas most popular microblogging site, when they posted photographs of their wedding.40 Thailand. Occasional stories in the Thai language press in the 1970s and 1980s had marriage stories. One story in 1987 told of two Thai women who held an engagement party and announced they would marry with the permission and approval of their parents, and then fly to Switzerland for their honeymoon.41 In January 2012, The Nation newspaper in Bangkok had a front page story and picture of a gay marriage in front of parents and 200 guests. The
37 38 39 40

Rex Wockner, Lesbian Japanese politician gets married, International News #686, June 18, 2007. Dan Martin, AFP, China paper splashes nations first gay marriage, January 13, 2010.

Gay men marry in Beijing, fridae.com, January 25, 2011. This story gives links to the Shanghai Daily and Peoples Daily stories. Anna Leach, Lawyers petition Chinese government for gay marriage, GayStarNews, May 17, 2013.
41

Thai Rath (largest circulation Thai language newspaper), January 15, 1987. This is one of four marriage stories translated from Thai Rath by Dr Peter Jackson, Australian National University, information supplied November 21, 2012.

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story told how the two met on Facebook.42 It was no private affair. There was television and print coverage. the parents were not only smiling but also talking enthusiastically about how happy they were. Smiles also adorned the faces of the 200 or so guests. Many called out funny remarks. The emcee got the newlyweds to kiss.43 Video footage and news reports spread across Thailand. A background story of the January wedding, occupied most of the front features page in The Nation newspaper on Valentines Day.44 Later in the year, the weekly LGBTI column in the same paper remembered the January wedding with a column headed Gay love goes public, adding more marriage news: A female couple was married recently in Phitsanulok A photo contest for gay couples is in its second year. Last year it made headlines in Thai Rath [the largest circulation Thai language newspaper] because pictures of men kissing were posted online. This year theyre still kissing, without concern. There will be two gay weddings during the upcoming month of love, February one for men and the other for women. The more same-sex couples we see getting married, the more the general public will learn about gay romance, and hopefully accept the reality of it.45 Malaysia. Malaysian born Christian pastor, the Reverend Oyoung Wen Feng, married his partner in New York and announced plans for a wedding banquet back home.46 The banquet took place in Kuala Lumpur on August 4th, 2012, with 200 guests, including the pastors mother. Banquet guests were ushered to their seats at a Chinese restaurant in Kuala Lumpur
42

Trifa Saekhow, Facebook friendship blossoms into gay marriage in Trang, The Nation (Bangkok), January 8, 2012, 1A. The Nation is a major circulation English language daily, not aimed simply at foreign residents and visitors.
43 44 45 46

Brave hearts in Trang, The Nation (Bangkok), Friday, January 13, 2012, 2B.

Vitaya Saeng-Aroon, Love for a new age, The Nation, February 14, 2012, 1B. Vitaya hosts the gay variety show Pink Mango on Nation Broadcastings Mango TV. Ziri Sutprasert, Gay love goes public, The Nation, October 26, 2012, 2B. Keep coming out, urges Malaysias gay pastor, Bangkok Post, Spectrum, August 14, 2011, 15; Malaysian pastor to register marriage on Aug 31, Malaysias independence day, www. fridae.com, August 17, 2011. The latter story was accompanied by a picture of a poster, based on the famous film The Wedding Banquet, showing Oyoung and his partner with a blank space for a female bride.

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and found small heart-shaped chocolates wrapped in Chinese-language notes that translated as God loves gays. There were public kisses and karaoke singing. Chinese-language journalists were asked not to file stories in advance of the event. Malaysias cabinet minister for Islamic affairs voiced fears that the wedding would provoke extremism among Malaysias 28 million people.47 Traditional ceremonies. These marriages have often been done in compliance with local heterosexual religious customs. A marriage in Bihar, India, in 2004, involved vows in a Hindu temple.48 In 2010 a lesbian couple in Johor, Malaysia, married with the blessings of their families in a traditional Chinese marriage ceremony.49 Associated Press gave international coverage to the marriage of two American women in Nepal in June 2011. The ceremony was conducted by a Hindu priest at a major temple.50 In August, 2012, two women in Taoyuan, Taiwan, married in a Buddhist ceremony. Fish Huang and her partner You Ya-ting, both wearing traditional white bridal gowns, said I do in front of a Buddha statue and exchanged prayer beads rather than rings in a monastery in Taoyuan, in northern Taiwan. Nearly 300 Buddhists chanted sutras to seek blessings for the couple, both aged 30. Shih Chao-hui, a female Buddhist Master who presided over the ritual, hailed it as a historic moment.51 Ms Shih, who presided, is a well-known advocate for social justice in Taiwan. The couples parents had planned to attend, but when they realized that media would cover the event, they stayed away.

MARRIAGE ACTIVISM
47 48 49 50

AP, Gay couple hold wedding banquet in Kuala Lumpur, Bangkok Post, August 7, 2012, 5. Lesbian couple arrested in Bihar, Indo Asian News Service, December 24, 2004.

Buddhist groups in Malaysia hold public talk about homosexuality, August 15, 2011, www. fridae.com.

AP, First lesbian wedding as country drafts new laws, Bangkok Post, June 21, 2011, 8. According to Member of Parliament and gay rights activist Sunil Babu Pant, this is the first public wedding of a lesbian couple in Nepal. There were many closet lesbian weddings in the past but this wedding encourages the community to honor their relationships and think of themselves as normal as straight people, he said. Shitu Rajbhandari, American couple gives Nepal its first lesbian wedding, My Republica, June 21, 2011.
51

AFP, Same-sex couple marry in Taiwan, Bangkok Post, August 12, 2012, 9.

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Most same-sex marriages have been private affairs, though often shared with many friends, and sometimes covered by the media. Increasingly we see some marriage events in Asia staged by activists as political theatre. The participants need not be couples in real life. On Valentines Day, 2000, activists persuaded Hsu Hsin-liang, one of the minor candidates in the March presidential election in Taiwan, to conduct a wedding of two women in New Park in central Taipei. Media were there to cover the event and Hsu Hsin-liangs endorsement of equal rights.52 Two mass marriage events were held in the US, as part of large national marches on Washington DC held to advance LGBT rights. The first in 1987 involved 2,000 same sex couples, who participated in a ceremony on the steps of the Internal Revenue Service Building. In a later march on Washington, in 2000, around 1,000 couples exchanged rings on the steps of the Lincoln Memorial.53 In March, 2002, a showy wedding took place in a Hong Kong registry office. The bride wore a black tuxedo and sported a fake moustache; the groom was resplendent in a white wedding dress and accompanying veil. The bridesmaid a man stole the show in a tangerine-coloured frock with matching parasol. Tommy Chen, 28 and gay, married a lesbian friend to try to claim Hong Kong housing benefits available only to heterosexual couples. Mr. Chens partner plans to marry Yao Waiwais partner to claim the same benefits.54 Two married couples, two actual couples, and two subsidized apartments. Why not? The event was a media splash, with coverage by the BBC and the South China Morning Post.

52 53 54

Henry Chu, In Taiwan, Gay Life has Zest, Los Angeles Times, May 10, 2000. Michael Klarman, From the Closet to the Altar, Oxford, 2013, 52 and 83.

Hong Kong gays wed for welfare, BBC, March 25, 2002; Hong Kong gay man and lesbian marry to protest unequal treatment, March 30, 2002, www. fridae.com; Hate mail over sham marriage fails to deter gay activist couple, South China Morning Post, April 1, 2002, 3.

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Near Tiananmen Square, on Valentines Day, 2009, two lesbians in flowing white wedding dresses, and two gay men, in black tuxedos, kissed and cooed as newlyweds. Queer Comrades, an activist media group, filmed the event, and released an 18 minute video New Beijing, New Marriage. Pictures appeared in international media and in the English-language China Daily. Organizers gave out roses and flyers to onlookers. Activists in Beijing still give out postcards of the two couples, showing the curious bystanders who witnessed the demonstrations. 55 Taiwan held the biggest Asian wedding protest event in August, 2011. About 80 lesbian couples tied the knot in Taiwans biggest same-sex wedding party, with organizers saying yesterday they hoped the island will become the first place in Asia to legalise gay marriage.56 Around 1,000 people had purchased tickets for the event, including visitors from China, Thailand and the US.57 The theme of Taipeis annual LGBT pride parade in October, 2012, was equal marriage. 50,000 people took part, including more than 3,000 foreigners from over 20 countries.58 In Thailand it is now expected that same-sex couples will be applying for marriage licenses every Valentines day.59 Couples apply in China as well.60 No one is keeping count of these individual protest events at registry offices. In March, 2013, a lesbian rights activist married her partner at Tokyo Disneyland. Initially Disneyland asked that one wear a tuxedo, but, when that was protested, agreed to two white wedding gowns. The event was
55

Activists hold mock wedding photo session on Beijing streets, fridae.com, February 16, 2009; Tania Branigan, Beijings happy couples launch campaign for same-sex marriages, The Guardian, February, 25, 2009; China Daily, Year of Gay China, reprinted in fridae.com, December 29, 2009.
56 57 58

AFP, Liberated lesbians say I do, Bangkok Post, August 22, 2011, 7. AFP, Here come the brides, Bangkok Post, August 10, 2011, 7. Loa Lok-sin, Annual LGBT pride parade attracts 50,000 people, Taipei Times, October 28, 2012, Gay couples seek right to get married, The Nation, February 15, 2013, 3A.

1.
59 60

Anna Leach, 2012: the Chinese Queer Year, (based on a Queer Comrades video), GayStarNews, February 22, 2013.

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widely publicized, with photographs of the couple together with Mickey and Minnie.61 In May, 2013, South Korean film director Gwang-soo Kim Jho

announced his plans for an outdoor September wedding, aiming at 100,000 guests. He will bring a constitutional challenge to the expected refusal of a marriage license.62

THE MEANING OF THESE EVENTS

The present authors association with activist LGBT organizations goes back to the early 1960s in Canada. Over the years Canada made the transition, slowly, from the repeal of a criminal law, to anti-discrimination legislation, to the recognition of spousal benefits, and on to the extension of marriage. But there is no history of same-sex couples holding weddings which got mainstream media coverage as interesting events. The public stories, over the last thirty years, of same-sex weddings in Asia have few parallels in those parts of the world where LGBT rights have advanced the furthest, that is in Canada, the United States, Europe, Latin America and Australasia.63 Instead, this seems a distinctly Asian story, restricted, of course, to only parts of Asia. There are two possible explanations for this pattern, both of which involve an assertion that homophobia has been stronger in the West than in much of Asia. The first explanation relates to media attitudes. Asian media found the stories interesting, colorful, and newsworthy. These were human interest stories. There was, generally, no sensationalistic treatment. Instead, they were happy family stories. Media would always note when families were involved.
61 62 63

Anna Leach, Tokyo Disneyland hosts lesbian wedding, GayStarNews, March 5, 2012.

Anna Leach, South Korean film director announces plan to marry boyfriend, GayStarNews, May16, 2013. In the context of present developments, a couple of stories have surfaced about early marriages, but without indication that these received media coverage when they occurred. A video became available of a 1971 marriage in Minnesota. See Joe Morgan, Footage revealed of first US gay wedding in 1971, GayStarNews, July 31, 2013. And see Andrew Potts, Same-sex marriages revealed in 1930s Australia, GayStarNews, June 5, 2013.

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A second factor lies in the confidence of the couples and parents. They did not expect to provoke criticisms or condemnation. While they would know that not everyone approved, they believed they were acting within a zone of tolerance. Their assessment was that homophobia was a limited force in their societies. They could share what was to them a happy event. A different factor was the decline of anti-marriage voices on the part of lesbians and gay men in at the West, a feature particularly of the liberation years of the 1970s and 1980s. Marriage was to be dismantled as an obsolete part of the oppressive patriarchal structures of western society, not embraced as a model or goal. To stage a marriage as a public event, open to media, would defy liberation goals. Such thinking was not uncommon in the West, and, it seems, absent in Asia.64 It survives, on the margins, among some Western activists. While publicity about marriage events in Asia has played a positive role, there has been violent opposition to any marriages or marriage promotion in much of Africa, and in August, 2013, in public violence in Haiti.65 Supporting the Asian marriage events is the new surge of support for the goal of equal marriage, in the West. The goal of opening marriage was not seen as possible in the West until the reform in the Netherlands in 2001, quickly followed by other countries, and the Massachusetts victory in 2003, starting the trend in the US. The goal of marriage transformed Western gay and lesbian activism. Groups that had said they were not seeking marriage instead working for immigration reform, or job protections simply could not not want marriage. Even the virulent backlash in the US, with state after state passing statutes or constitutional amendments limiting marriage, did not derail the new determination.66
64

See Elise Chenier, Gay Marriage, 70s Style, Gay and Lesbian Review, March-April 2013, 19, reminds us of the earlier thinking, including the express goal of 1970s litigants that opening marriage in the US to same-sex couples was being sought in order to fundamentally change the institution.
65

Tris Reid-Smith, Haiti gangs beat 47 gays with machetes, sticks and cement blocks, GayStarNews, July 31, 2013; Joe Jorgan, Mob hurls petrol bombs at British and Haiti gay couple during engagementceremony, GayStarNews, August 12, 2013.
66

Chai Feldblum in a 2008 publication described one of the visible parts of the backlash: Over the past decade, forty one states have passed statutary Defense of Marriage Acts, defining marriage as solely

17

The goal of equal legal marriage is now credible in Asia as well, energizing gays and lesbians to openly marry. The lesser levels of homophobia in parts of Asia has allowed the public media coverage of their marriage stories, pushing the movement along. Along the way only one jurisdiction reacted with legislation banning same-sex marriage (Vietnam), while a second (Malaysia) is considering a ban.67 Srorn Srun in Cambodia has said his group is not campaigning to legalize marriage for gay couples. He identifies the main problem as family acceptance.68 That is true throughout Asia, but it has not blocked the new campaigns for registration or marriage.

SOME PROGRESS IN ASIA

The issue of some form of legal recognition for same-sex relationships is increasingly discussed in parts of Asia.

CHINA
Li Yinhe is a sociologist and a professor at the prestigious Chinese Academy of Social Sciences. She is one of Chinas most recognized and widely published scholars of queer life.69 She submitted draft legislation to the National Peoples Congress to open marriage to same sex couples in 2003, 2005, 2006, 2008, and 2013. Each time the proposal lacked sufficient sponsors to get on the legislative agenda. Thirty sponsors are required. She states six arguments supporting the extension of marriage: It is not against any current laws.
between a man and a woman. Twenty-sex states have amended their constitutions to restrict marriage in a similar fashion. Chai Feldblum, Moral Conflict and Conflicting Liberties, in Laycock, Picarello, Wilson, Same-Sex Marriage and Religious Liberty, Rowman & Littlefield, 2008, 123 at 126.
67 68

Andrew Potts, Malaysia considering outlawing same-sex marriage, GayStarNews, August 1, 2013. Anna Leach, Lesbians legally married in Cambodia despite no law change, GayStarNews, May 6,

2013.
69

William Schroeder, Cowboys and Aliens, GLQ, Vol. 18 Number 4, 425 at442. Professor Li participated in the International Conference on LGBT Human Rights held in Montreal in July, 2006, which with 1,500 participants remains the largest such conference to be held.

18

The countries with the most advanced human rights have allowed samesex marriage. If gay people could marry there would be more committed same-sex relationships which would halt the spread of HIV and other sexually transmitted diseases. Same-sex marriage will help with population control. If same-sex marriage is allowed gay men would not feel pressure to marry straight women, which causes a lot of emotional trauma in China. Allowing same-sex marriage will create a more harmonious society.70 In 2013 over one hundred parents of lesbian and gay children sent an open letter to the National Peoples Congress supporting the opening of marriage: The fact that they cant legally marry puts them in a difficult situation when they try to adopt children, sign for their partners operations, inherit assets from a deceased partner or even buy a flat, the letter said.71 There is growing awareness of problems created by the present system. The First Intermediate Court of Beijing in 2012 called for legislation that would allow people who discover that their spouses are homosexual to avoid divorce by filing for an annulment instead. As a result, the individuals would be legally listed as single, instead of divorced. That would improve the marriage chances of the women affected. most gay men force themselves to marry women. In some cases a gay man will marry a lesbian friend, allowing both to live their lives as they see fit while satisfying their families desire to see them hitched. For those who cant find a willing matrimonial co-conspirator, theres now a website, chinagayles.com, that offers to match marriage-minded gay men and lesbians.72
70 71

Anna Leach, Sociologist submits gay marriage proposal to Chinese government again, GayStarNews, March 7, 2013. Amy Li, Chinese parents of gays and lesbians demand equal marriage rights, February 27, 2013. See also Chris Luo, Activists plan to legalise gay marriage submitted to NPC, South China Morning Post, March 6, 2013.
72

Chinarealtime, http:// blogs.wsj.com / chinarealtime /2013/01/22/a-proposal-for-unwitting-wivesof-gay-men-in-China.

19

Ten lawyers in China petitioned the National Peoples Congress in May, 2013, to recognize same-sex marriages. One suggested in August that China could start by introducing registered partnerships.73

TAIWAN
As noted above, when Chen Shui-bian was mayor of Taipei, he sent a representative to the same-sex wedding of the author Hsu You-sheng and his partner Gary Harriman in November 1996. When Chen Shui-bian was president, in 2001, the Ministry of Justice drafted legislation recognizing marriage and adoption rights, which went to the cabinet for review.74 In 2003 there seemed to be movement on the issue: United Daily News, a local newspaper quoted the Presidential Office as saying: The human rights of homosexuals have been gradually recognised by countries around the world. To protect their rights, people [of the same sex] should have the right to wed and have a family based on their free will, it added.75 In Taiwans campaigns for international recognition, it had become important to stress that Taiwan, unlike the mainland, had democracy and supported human rights. This led Chen Shui-bian to actively support the ending of the death penalty, reforms of aboriginal policy and homosexual equality rights. All of these made Taiwan worthy of respect and recognition. But the marriage bill was put on hold. In a televised debate between candidates for the presidency in March, 2008, Ma Ying-Jeou, who won the subsequent election, noted that he had allocated funds for the gay pride events in Taipei when he had been mayor of the city, a policy that started in 1999. He boasted that Taipei is the freest city to live in if youre gay. He stated that sexual orientation is inborn and needs to be both respected and tolerated. He said gay rights are part of human rights. On marriage, he planned to engage in public dialogue on the
73

Anna Leach, Lawyers petition Chinese government for gay marriage, GayStarNews, May 17, 2013; Andrew Potts, Chinese lawyer calls for civil partnerships as first step towards gay marriage, GayStarNews, August 19, 2013.
74 75

Taiwan may legalise same-sex unions, fridae.com, March 12, 2002; Taiwan considers gay marriages, child adoption, fridae.com, June 27, 2001. Taiwan moves to recognize gay marriages, fridae.com October 28, 2003; Taiwans proposed same-sex marriage legislation delayed, fridae.com, December 10, 2003.

20

issue to generate understanding and consensus, saying he was respectful but cautious The candidate of the Democratic Progressive Party, Frank Hsieh, said that problems, such as joint tax filings and adoption should be resolved step by step before marriage would be considered.76 At the end of 2009 a set of organizations and individuals formed TAPCPR, the Taiwan Alliance to Promote Civil Partnership Rights. They developed a proposal for both same-sex marriage and a civil partnership system, rejecting an approach that focused on resolving individual issues one-by-one, issues such as taxes, medical coverage or insurance beneficiaries. In September 2011 TAPCPR released draft proposals for changes in the Civil Code which would recognize (a) any two individuals, regardless of sex or sexual orientation, (b) multiple person relationships, and (c) close relationships between individuals not based on sexual involvement. Hsiu-wen Hsu, a lawyer and the president of TAPCPR, explained that the second grouping would adapt part of the existing law that has its origins in the old-fashioned Chinese practice of men taking multiple concubines in addition to their wife.77 TAPCPR sought one million signatures on a petition supporting their reforms.78 An editorial in the English language China Post in Taipei in September, 2011, was entitled Taiwan could lead Asia with full recognition of gay rights: as [President] Ma once noted, Gay rights are a part of human rights. The fight for equal rights for gays has been described as the last major human rights struggle. How a nation treats its gay citizens is a good indicator of the general progressiveness of its society. It would likely cost President Ma a little political capital to directly call for legalizing gay marriage in Taiwan, but the overall benefit to the nation
76 77

Philip Hwang, Taiwan presidential elections candidates discuss same-sex marriage in televised debate, fridae.com, March 17, 2008. See http:// tapcpr.wordpress.com/%E9%97%9C%E6%96%BC%E4%BC%B4%E4%BE% B6%E7%9B%9F/, Anna Leach, Monogamy is an illusion Taiwanese lawyer campaigns for multiple person marriage law, Gay Star News, November 2, 2012. Granting equal access to a civil partnership or marriage is a goal of the Equal Love campaign in the United Kingdom, spearheaded by Peter Tatchell. The idea of allowing coverage for non-sexual relationships (sometimes called a Golden Girls system, after the television series) was debated, to a limited extent, in Sweden, Canada and Australia a decade ago. It seems that the lack of any organized constituency for this additional coverage has led to it dropping out of current discussions.
78

AFP, Taiwanese seek gay weddings, Bangkok Post, October 28, 2012, 6.

21

and the region could be worth it. Taiwans people for the most part do not have strong religious objections to homosexuality and there is little organized opposition to gay rights here. All thats needed for this nation to become a bellwether for Asia is a nudge in the right direction from those in power.79 In August, 2012, the Deputy Director-General of the Centers for Disease Control in Taiwan publicly called for opening marriage. His argument for equal treatment was based on concerns with encouraging stable relationships for health purposes.80 In October, at the annual Taiwan Pride day, the new leader of the opposition Su Tseng-chang stated support for legalizing same-sex marriage.81 The government has studied reforms in Germany, France and Canada.82 One activist was critical of the delays, both by the government and the courts: Despite promises to enhance human rights protection, government officials have not done anything concrete on the issue of gay marriages, using waiting for a social consensus as an excuse, Wu [Shao-wen] said in a press statement. Surveys on the issue show that more than 50 percent of the public support legalizing same-sex marriage, and the support rate rises to more than 70 percent among respondents under the age of 30. These figures show that legalizing gay marriages is already widely accepted by the public.83 The first legislative hearing on same-sex marriage was held in December, 2012. It considered a proposal to remove references to male and female in the Civil Code section on marriage. Deputy Justice Minister Chen Ming-tang told [the legislative committee] that it wasnt just the Civil Code that would have to change, but also
79 80 81 82 83

Taiwan could lead Asia with full recognition of gay rights, China Post, Taipei, September 10, 2011.

Lung Rei-yun, Elizabeth Hsu, Health official calls for legalization of same-sex marriage, Focus Taiwan News Channel, August 20, 2012. Anna Leach, Taiwan government to study same-sex marriage in Asia, GayStarNews, December 19, 2012. Ibid. Loa lok-sin, Court postpones verdict on same-sex marriages, Taipei Times, December 21, 2012, 3.

22

laws regarding parentage, taxes or health insurance. That meant that the Justice Ministry couldnt do it alone, he said. Meanwhile Chen Weilien, director of the Ministry of Justices Department of Legal Affairs suggested they would invite a scholar specializing in the Civil Code to look at Taiwanese attitudes to same-sex marriage early next year. A poll in September [2012] by United Daily News showed 55% approval of gay marriage laws with only 37% against.84

NEPAL
The Nepal Supreme Court in 2008 gave a judgment broadly upholding gay, lesbian and transgender rights, and instructing the government to proceed with the drafting of legislation to implement the decision. Opening marriage was to be considered. The process of drafting a new constitution has been on-again, off-again. Full implementation of the Supreme Court decision has not yet occurred, but there have been some administrative reforms. Sunil Pant, founder of Nepals Blue Diamond Society, and a member of the legislature, expressed confidence that Nepal would be the first Asian country to give legal recognition to same-sex relationships. The developments in Nepal reflected the reformist possibilities created by the ending of the civil war. The commitment to draft a new constitution was part of that transition. The Blue Diamond Society had emerged over the previous decade as the largest and best organized LGBT organization in Asia. It gained financial support from Norway, and in the court case was assisted by the International Commission of Jurists. The judicial breakthrough was possible because of an activist Chief Justice and the leadership of Sunil Pant and others. In November, 2012, the Nepal Supreme Court dealt with a wife who had initiated a divorce from her husband, but faced his claims for her return and a lower court order placing her in a rehabilitation centre. The Supreme Court ordered her release and her reunion with her female partner.85

VIETNAM
84

Tris Reid-Smith, Taiwan moves on gay marriage, GayStarNews, January 1, 2012; Didi Kirsten Tatlow, Hints of Taiwan leading the way on same-sex marriage in Asia, New York Times, January 8, 2013.,
85

Ananta Raj Luitel, SC allows live-in lesbian relationship, Himalayan Times, November 5, 2012.

23

In 2012, the government of Vietnam began the process of drafting a new law on marriage and family. Discussions and consultations began, which were to result in draft legislation to go to the legislature in 2013 or 2014. Eight different matters are under consideration: same-sex relationships, surrogacy, separation, de facto marriage and other issues.86 In July, 2012, the Minister of Justice said it was time to consider a legal framework for same-sex couples giving very practical reasons for such a reform: The Justice Ministry now says a legal framework is necessary because the courts do not know how to handle disputes between same-sex couples living together. The new law would provide rights such as owning property, inheriting and adopting children. I think, as far as human rights are concerned, its time for us to look at the reality, Justice Minister Ha Hung Cuong said Tuesday [July 24th] in an online chat broadcast on national television and radio. The number of homosexuals has mounted to hundreds of thousands. Its not a small figure. They live together without registering marriage. They may own property. We of course, have to handle these issues legally.87 In May the [Justice] Ministry sent out a consultative letter to concerned agencies to seek their opinions on same sex relationships. The letter described same-sex marriage as being inevitable according to human rights principles. However, it also said that given the sensitivity of homosexuality and unforeseen consequences of same sex marriage on cultural and traditional family values, it is too early for Vietnam to legalise same sex marriage. The representatives from the ministry of justice expressed their desire to have a dialogue with LGBT communities in Hanoi and Ho Chi Minh City, organize meetings between LGBT and same-sex relationship with experts from Vietnam and other countries, and educate the public on same-sex relationships.88
86 87

Anna Leach, Vote on same-sex marriage in Vietnam likely to be delayed until 2014, GayStarNews, February 20, 2013. Margie Mason, AP, Unlikely Vietnam considers same-sex marriage, Jakarta Post, July 30, 2012, 2. Of course the numbers of homosexuals would not have increased. What has changed is their visibility and an evolving public recognition of the realities of sex and gender diversity.

24

The Committee of Social Affairs of the National Assembly, as part of their consideration of possible revisions to the law on marriage and family, invited LGBT activists to make a presentation on same-sex marriage on October 8th, 2012. Professor Cees Waaldijk, who holds a chair in sexual orientation law at the University of Leiden in the Netherlands and Professor M V Lee Badgett, an economist at the University of Massachusetts, Amherst, in the United States, were invited to Hanoi in December, 2012, to discuss the international patterns on the recognition of relationships and the extension of marriage. Both had written widely on issues of recognizing same-sex relationships.89 They spoke at conferences organized jointly by the government and the UN Development Programme. In April, 2013, the Deputy Minister of Health spoke out. Thanh Nien News reported on a speech in which he was to say that gay people have the same rights as everyone else to love, be loved and marry. A leading NGO activist said that while the Ministry of Justice and the Ministry of Health were both supportive of same-sex marriage, there was still a question whether there would be enough votes in support when new legislation was submitted to the National Assembly, probably in 2014.90 A bit earlier, the Ministry of Justice announced that fines would no longer be imposed on same-sex couples who got married.91

THAILAND
In 2012 long-time Thai gay activist Natee Theerarojanapong and his partner of 20 years applied for a marriage license in Chiang Mai. As expected, a license was refused. He took the issue to the National Human Rights Commission of Thailand, asking them to initiate proceedings in the
88 89

Sylvia Tan, Will Vietnam become the first Asian nation to legalise same-sex marriage?, fridae.com, August 1, 2012, www. fridae.com, accessed August 6, 2012. Dr. Cees Waaldijk authored Sexual Orientation Discrimination in the European Uniion, TMC Asser, 2006; Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries, 2004, New England Law Review, 569-589; Same-Sex Partnerships, International Protection, in R. Wolfrum, Max Planck Encylopedia for Public International Law, Oxford, 2009. Dr. M V Lee Badgett authored When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, NYU Press, 2009; Money, Myths and Change: The Economic Lives of Lesbians and Gay Men, Chicago, 2001; and was a co-editor of Sexual Orientation Discrimination: An International Perspective, Routledge, 2007.
90 91

Anna Leach, Vietnams Ministry of Health recommends gay marriage is legalized without delay, GayStarNews, April 16, 2013. Anna Leach, Vietnam government scraps gay wedding fines, GayStarNews, April 12, 2013.

25

Constitutional Court. Dr. Tairjing Siripanich, the Commissioner who handles LGBT issues, accepted the complaint. He said: In human rights point of view, a decision to live together should be allowed by law whatever sex the persons had.92 Rather than go to court, the issue was taken up by a committee of the Thai Parliament. The House of Representatives Committee on Legal Affairs, Justice and Human Rights engaged with three representatives of LGBT organizations. The result was draft legislation extending the rights and obligations of marriage to same-sex couples through a system of civil unions. Four community seminars have been held to discuss the draft in different parts of the country. A fifth took place at the Thai parliament on April 19th, 2013. The Committee is chaired by Police General Viroon Phuensaen, a party list member of parliament for the Pheu Thai Party, the governing party of Prime Minister Yingluck Shinawatra. Opinions from the public will be gathered and used to amend the bill before being proposed to the cabinet for further consideration. If the cabinet rejects the bill, the supports have pledged to collect 10,000 names of eligible voters or at least 20 members of the House of Representatives to forward to parliament for consideration. 93 Meanwhile the government, in its ongoing promotion of tourism, announced that during February, honoring Valentines day, couples entering the country could use the premium immigration lane. Same-sex couples were included in this special privilege.94 The governments tourist promotion organization had already begun targeting gay tourists with a special campaign out of its New York office. They were following the lead of a dozen western states, but perhaps it was a first for Asia.

OTHER JURISDICTIONS IN ASIA

92 93 94

Out in Thailand, November, 2012, 16; Anna Leach, Thai government drafting same-sex civil partnership law, GayStarNews, December 17, 2012. Hundreds back civil unions for gay couples, Bangkok Post, February 9, 2013, reporting on the Bangkok consultation. Thailand welcomes same-sex couples, fridae.asia, February 5, 2013.

26

In Hong Kong immigration officials have been quietly handing out special relationship visas for partners of gay professionals coming from overseas.95 Singapore, it seems, does something similar for the same-sex partners of expatriates entering on a work permit. Thailand does as well, at least for partners of diplomatic staff. In 2009 Hong Kong allowed victims of domestic violence in same-sex relationships to seek an order prohibiting perpetrators of violence from entering or remaining in their residences. Legislators reached consensus only after the government agreed to rename the law as the Domestic and Cohabitation Relationships Violence Ordinance, so as not to be perceived to be conferring any marriage-like legal status to same-sex relationships.96 The first openly gay lawmaker elected in Hong Kong, in September, 2012, said he would work for a non-discrimination ordinance and for same-sex marriage.97 Japan asks any Japanese citizen who is entering into a foreign marriage to obtain, in advance, a certificate from the Japanese government indicating basic information about both parties, including marital status, age, sex and nationality. In March, 2009, Japan began issuing such documents in cases where the foreign marriage was to be a legal same-sex marriage. The certificate is designed to facilitate the future residence of the foreign spouse in Japan with the Japanese national.98 Japan has had a lesbian and a transgender individual elected to local or prefectural governments. The first openly gay man was elected to a ward in Tokyo in April, 2011, and promised to work for a partnership ordinance that would cover all unmarried couples, giving equal rights to marriage.99 In 2011, Judge Vimal Kumar in Gurgaon Sessions Court, close to Delhi, gave a same-sex couple the same protection from harassment and
95 96 97 98 99

Kent Ewing, In Hong Kong, a quiet advance for gay rights, Asia Times, July 15, 2011.

John Godwin, Legal environments, human rights and HIV responses among men who have sex with men and transgender people in Asia and the Pacific: An agenda for Action, UNDP, 2010, 61. Hong Kongs first openly gay lawmaker: Raymond Chan Chi-chuen, www.fridae.asia, September 12, 2012. Japan OKs same-sex marriages abroad, Wockner International News No.780, April 6, 2009, copy in possession of author. Japan Times, First openly gay candidate wins in Tokyo ward, April 26, 2011.

27

violence from family members that Indian courts have extended to heterosexual couples who were persecuted for inter-caste or inter-religious relationships.100

MODERN LEGAL RECOGNITION OF SAME-SEX RELATIONSHIPS IN THE WEST

Accepting that the issue of legally recognizing same-sex relationships has emerged as a current issue in Asia, it may be useful to set out how such recognition has occurred over the last 30 years in Western legal systems. There are three ways in which same-sex relationships have been given legal recognition: LEGAL RECOGNITION OF COHABITATION. In some jurisdictions this is referred to as ascription, in others as the recognition of common-law relationships or de facto relationships. Cohabitation without marriage by heterosexual couples became increasingly common in the West in the years after World War II. This reality led to laws that applied many of the rights and obligations of marriage to such relationships, including support obligations. As public recognition of the existence of homosexuals increased, there also came to be recognition of the existence of stable patterns of same-sex cohabitation. In many Western jurisdictions, the recognition of heterosexual cohabitation was extended, over time, to the recognition of homosexual cohabitation. The same kinds of issues that led to the recognition of heterosexual cohabitation were the reasons for extending legal recognition to same-sex couples. There are many examples of same-sex couples gaining pension rights, health insurance coverage for partners, even immigration sponsorship rights through this process. The recognition could be for specific purposes, such as medical insurance or immigration. Sometimes there is a general law governing this legal recognition.101 No agreement or consent by the couple is required, though the consequences of ascription are the imposition of some legal rights and obligations. Couples do not have to register or go through a marriage
100 101

Gurgaon court recognizes lesbian marriage, Times of India, July 29, 2011.

Sweden enacted a Homosexual Cohabitees Act in 1987, as referred to in Petersen, Villaverde, Lund-Anderson, 156-7. The more common pattern in Canada was to include some provisions in the general family law.

28

ceremony. Recognition of the relationship is given by courts, legislation or administrative practice. There were certain limitations on this form of recognition: (1) Jurisdictions that did not grant legal recognition to unmarried different-sex couples were unlikely to grant rights to same-sex couples. 102 (2) Couples seeking rights might be required to prove the existence of a stable relationship. That could be difficult if the couple had not been out to relatives, or friends, or on the job. (3) Laws often required that the relationship have existed for a period of time before rights could be claimed, often two years, often less. REGISTRATION. This refers to laws which allow couples to register with a government agency. They are then entitled to some or all of the legal rights and obligations of marriage. Registration systems are separate from marriage, even in countries like the United Kingdom when all of the rights and obligations of marriage were given to registered partners. MARRIAGE. In many countries same-sex couples can now marry, entering into the same legal relationship that the law provides for heterosexual couples. The reforms can solve problems for transgendered individuals and intersexuals, as well as homosexuals and bisexuals. They can apply to any couple.

COHABITATION
Two decisions of the United Nations Human Rights Committee have upheld equal pension rights for same-sex couples, without any requirement of registration or marriage.103 The Committee ruled that the denial of a pension for a surviving partner in a same-sex relationship was
102

Being able to argue by analogy for the same status of unmarried opposite-sex cohabitants proved a middle political ground to the Canadian lesbian and gay movement, whereas in the United States and other jurisdictions without this middle ground, it seems that the clearest strategy was to seek full marriage rights and duties. Susan Boyd, Claire Young, Trends Towards Recognition of (Same-Sex) Relationships in Canada, (2003) 1 Seattle Journal for Social Justice, 757 at 765. In some instances in the United States inequality was argued on an analogy between unmarried same-sex couples and married different-sex couples. This approach argued that the legal exclusion of the former from marriage meant that the two categories of couples were being treated unequally, an inequality that a same-sex only ascription system would end. This solution, it seems, never attracted widespread acceptance.

29

discriminatory and violated the provisions of the International Covenant on Civil and Political Rights (which many countries in Asia have signed). Survivor tenancy rights to rent controlled apartments have been upheld in cases involving same sex couples in the Netherlands by legislation in 1979 in New York by a judicial decision in 1989104 in Europe by decisions of the European Court of Human Rights in 2003 and 2010105. Equal rights for same-sex couples have been upheld in Colombia by a Constitutional Court ruling in January, 2009106, and in Brazil by a Supreme Court order in 2011.107 Canada allowed the recognition of same-sex relationships for immigration sponsorship purposes (before marriage was introduced), following earlier reforms in Australia and New Zealand. The Netherlands provides an example of gradually establishing cohabitation rights (before it introduced registration and then marriage): Since 1979, Dutch cohabiting couples have increasingly been given legal rights and duties similar to those of married couples. One after the other, changes were introduced in rent law, in social security and income tax, in the rules on immigration, state pensions and death duties, and in many other fields. In none of these fields was any distinction made between heterosexual and homosexual cohabitation.108

103

Young v Australia, 2003, CCPR/C/78/D/941/2000, X v Colombia, 2007, CCPR/C/89/D/1361 /2005. In general, see Office of the UN High Commissioner for Human rights, Born Free and Equal: Sexual Orientation and Gender Identity in International Human Rights Law, 2012, 53.
104 105 106 107 108

Braschi v. Stahl, 1989, 543 N.E. 2nd 49.

In the 2003 decision in Karner v. Austria, the European Court of Human Rights recognized a same sex relationship for the purposes of successor tenancy rights (repeated in 2010 in Kozak v Poland). Colombias Constitutional Court Rules for Equality, January 28, 2009 (press release, copy in possession of the author). Reuters, Brazils supreme court recognizes gay partnerships, May 5, 2011; AP, Court grants legal status to gay unions, Bangkok Post, May 7, 2011, 5. Kees Waaldijk, Small Change: How the Road to Same-Sex Marriage Got Paved in the Netherlands, in Wintemute, Andenaes, Legal Recognition of Same-Sex Partnership: A Study of National, European and International Law, (2001), 437 at 441.

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To the same end, Sweden passed a general law on same-sex cohabitation in 1987.109

REGISTRATION
Registration systems, under various names, had three advantages. (1) They provided proof of a relationship (making it easier for couples to claim rights and obligations that were being granted on the basis of cohabitation). (2) They usually described what rights and obligations were included (or excluded). (3) They ended the requirement in some cohabitation laws that the relationship have been in existence for some period of time, perhaps two years, perhaps less. Denmark enacted its Registered Partnership Act in 1989, which extended all the rights of marriage to same-sex couples who registered, with certain exceptions. Same-sex couples did not gain adoption rights. That came later. As well, they were not entitled to have a ceremony in the state Lutheran Church. One partner had to be a citizen or permanent resident. Immigration sponsorship rights were part of the package. The Danish legislation was copied in the Netherlands, Sweden, Norway, Finland and Iceland. Many other jurisdictions enacted similar laws for registered partnerships, or civil unions or the social solidarity pacts in France. Some came close to equal rights with heterosexual marriage, but many were clearly quite limited in the rights involved. The rights in the UK were identical for marriage or registered partnership.110 A registration system in Washington State in the US was called the everything but marriage law, for it gave all state-level rights, but not the word marriage. Registration systems were adopted in many jurisdictions in Canada and the United States. New Zealand and some Australian states brought in such systems. When marriage is extended, it is usual for any previous registration system to be closed. Existing registrations remain in force or can be converted into marriages. In the Nordic area the laws have been strengthened to include adoption rights. The European Court of Human Rights ruled in E.B v
109 110

The Homosexual Cohabitees Act of 1987.

There are two differences in the UK: (a) non-consummation does not make the registration voidable, and (b) adultery alone is not a basis for ending the partnership. See Joshi at 441.

31

France (2008) and X v Austria (2013) that there should be no discrimination on the basis of sexual orientation in decisions on the adoption of children. The German Constitutional Court in February, 2013, ruled that same-sex couples in registered partnerships must have the same adoption rights as married couples.111 In some places ceremonies in the state church are now possible.112 As well the Nordic states agreed to mutually recognize registered partnerships (just as marriages in one state are usually automatically recognized in other countries). Increasingly the differences in rights between ascription, registration and marriage have been narrowed. The UN Human Rights Committee told Ireland to ensure that its proposed registration law did not provide lesser rights to same-sex couples, including in areas of taxation and welfare benefits.113 In the US, many local governments extended employment benefits to the same-sex partners of their employees. In the 1990s registration systems spread rapidly at this local level, solely to provide evidence of relationships for the purposes of claiming benefits that had been extended on the basis of cohabitation. These registration systems had no other legal function. Support for registration systems grew as some opponents of extending marriage become willing to support an alternative way of recognizing rights, as a compromise. Pope Francis, before his elevation to the papacy, supported civil unions in Argentina as the lesser of two evils. He opposed the opening of marriage.114

MARRIAGE

111 112

DPA, Easier Adoptions, Bangkok Post, February 20, 2013, 7.

Legislation introduced in Denmark on March 14th, 2012, will allow weddings in the state Evangelical Lutheran Church. AFP, Denmark submits gay church wedding bill, Bangkok Post, March 16, 2012, 9. In Europe adoption by same-sex couples is allowed in Belgium, Britain, Denmark, Finland, Germany, Iceland, Netherlands, Norway, Spain and Sweden.
113 114

Office of the UN High Commissioner for Human Rights, Born Free and Equal, Sexual Orientation and Gender Identity in International Human Rights Law, 2012, 53. Joe Morgan, Pope Francis believes gay civil unions is lesser of two evils, GayStarNews, March 21, 2013.

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The Netherlands opened marriage to same-sex partners in 2001.115 The Dutch lead has been followed in Argentina, Belgium, Canada, Denmark, France, Iceland, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, the United Kingdom, and Uruguay. Same-sex marriages can take place in Mexico in the Federal District and some states, and those marriages are legally recognized throughout the country. By May, 2013, marriage was possible in fourteen states in Brazil, including Rio de Janeiro and Sao Paulo.116 On May 14th the National Council of Justice ruled that marriage must be allowed in all parts of the country, a ruling that may be appealed to the Supreme Court.117 In April, 2013, a Constitutional Convention in Ireland voted to amend the constitution to open marriage.118 Public opinion polls in the US and Australia indicate majority support for the extension of marriage.119 President Obama in the United States expressed personal support for extending marriage on May 11th, 2012, later adding that he believed a ban on same-sex marriage was unconstitutional. The Democrat partys national convention in September, 2012, included the extension of marriage in its platform.120 After long fights over the issue, the reaction to Obamas statement was muted. Such a shift had long been in the works. Marriage,

115

The government hesitated to adopt a committee recommendation on opening marriage on the basis that same-sex marriage would not generally be recognized abroad. Parliament pressed the government to accept the committtees proposal. See Waaldijk, Small Change, at 449.
116 117

Joe Morgan, Two more Brazil states pass gay marriage, GayStarNews, May 1, 2013. Greg Hernandez, Judges clear the way for gay marriage throughout Brazil, GayStarNews, May 14, Jason Walsh, Ireland takes step toward gay marriage rights, Christian Science Monitor, April 17,

2013.
118

2013.
119

Jon Cohen, Gay marriage support hits new high in Post-ABC poll, Washington Post, March 18, 2013; Connubial bliss in America, The Economist, July 30, 2011, 32; AFP, Poll: Americans okay with guns, gay marriage, Bangkok Post, April 27, 2012; AFP, Same-sex marriage proposal gets crushed in parliament, Bangkok Post, September 20, 2012, 5; AFP, Defiant Government drafts gay marriage law, Bangkok Post, November 8, 2012, 9. Opening marriage was rejected in the Australian House of Representatives by 98 to 42, in a period of some political instability, though polls indicate majority public support. Prime Minister Kevin Rudd now supports marriage, but faces an election in September, 2013.
120

Adam Nagourney, Gay Democrats Celebrate a Newfound Visibility, New York Times, September 5, 2012. In an interview conducted by George Stephanopolous on ABC in March, 2013, he gave his opinion that marriage bans were unconstitutional. See Justice Snow, Obama cannot imagine Supreme Court upholding gay marriage bans, Poliglot, March 13, 2013.

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however, is a matter for the individual states, so the next steps are largely up to the states and the courts, not the president or the congress.121 Obama included a reference to LGBT issues in his inauguration speech before hundreds of thousands on the National Mall in Washington D.C. on January 22nd, 2013. He said that the nations journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well.122 Twelve or more US states have now opened marriage, as well as the District of Columbia. Three state-level votes on marriage in the November, 2012, US elections supported marriage (Washington State, Maine, Maryland).123 The 2012 election results surprised even marriage supporters. gay-marriage advocates won all four measures they were contesting. Maine, Maryland and Washington became the first states to legalise same-sex marriage by a popular vote (legislatures and courts have granted gays the right to wed in six other states and Washington, DC). Voters in Minnesota saw off a proposed constitutional ban. Few campaigners had dared to hope for a clean sweep 124
121

The two presidential candidates in 2012 were sharply divided on same-sex marriage. Mitt Romney supported a constitutional amendment defining marriage as between a man and a woman (something that in reality had no chance of being enacted). But he deferred to individual states on questions of hospital visitation rights, benefits and adoption; Michelle Garcia, Romney still supports federal marriage amendment, advocate.com, October 21, 2012, accessed October 24, 2012. Romney insisted that the ability of a partner to visit his or her same-sex partner in a hospital was a benefit not a right. Even George W. Bush had said that individual states were free to grant whatever recognition they thought appropriate. Projections from exit polls in November, 2012, indicated an LGBT vote that favored Obama over Romney by 76 to 22 percent. An analyst concluded that Obama had won in two swing states, Ohio and Florida, because of the gay vote. But if he had lost those two states, he would have been successful in any case. Richard Schneider, Revivals / Four More Years!, The Gay and Lesbian Review Worldwide, January-Febuary, 2013, 4. Since presidential elections in the US are usually very close, a small minority, perhaps LGBT at 5 or 6 percent, can be decisive. For the first time the LGBT vote was clearly worth courting by Democratic Party candidates, with limited risks of alienating other voters who would normally support the party. Some gain. Little loss. Same-sex marriage had shifted from being a problem issue dividing Democrats, to a problem issue that split Republicans. Bill Clinton had been the first presidential candidate to court a gay vote.
122 123 124

AP, Obamas lofty second-term ideals, The Nation (Bangkok) January 24, 2013, 9A. To have and to hold, The Economist, November 17, 2012, 57. A liberal drift, The Economist, November 10, 2012, 38.

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Many couples have become marriage tourists. At least 2,700 Australians have entered into same-sex marriages overseas, according to census data released in June, 2012. Most have married in Canada, where there is no residency requirement (except in Quebec). In late 2012, Ian Hunter, the Minister of Social Affairs of the state of South Australia, married his partner of 20 years in Spain. The ceremony was broadcast live back to Australia.125 A documentary has been screened at some film festivals, Different Path, Same Way, on the marriage of two Hong Kong men in Vancouver, Canada.126 We see a bounce-back effect, when couples come back home and seek recognition of their foreign legal marriages, in the same way that foreign heterosexual marriages are routinely recognized. Israelis who married in Canada won recognition of their marriages back home in Israel. New Yorkers won recognition of their Canadian marriages well before marriage was opened in their home state. UK law treats foreign marriages as civil unions (which give the same rights as marriage, without the name). In response, a Canadian court has recognized a UK civil partnership as a marriage, and granted a divorce.127 We have reached a tipping point. Major changes in policies and laws continue with some regularity. In October, 2011, British Prime Minister David Cameron announced his support for opening marriage: Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I dont support gay marriage despite being a Conservative. I support gay marriage because Im a Conservative.128
125

Matthew Jenkin, Aussie MPs gay marriage in Spain broadcast live, GayStarNews, December 6,

2012.
126 127 128

Nigel Collett, Hong Kong gay couple shares wedding video with the world, fridae.asia, February 22, 2013. Ray Filar, Judge says UK civil partners can divorce like married Canadian couples, GayStarNews, January 14, 2013. David Cameron, Conservative Party Autumn Conference, October 5, 2011. In January, 2013, Cameron announced his governments bid to host the 2018 Gay Games, using the new Olympic Games facilities in London.

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The legislation was approved in the House of Commons in February, 2013 (400 in favor, 175 opposed).129 Marriages will begin in England and Wales in 2014. Scotland will enact its own law on the matter. In May, 2012, Francois Hollande was elected President of France. In his campaign he pledged to open marriage and adoption, continuing the policy of his predecessor as Socialist party leader, Segolene Royal. The legislation passed in April, 2013. The heads of governments of three of the five permanent members of the UN Security Council the UK, France, and the US support extending marriage. Russia and China will take a bit longer. The tide continues to turn. In June, 2012, Denmark, which had pioneered registered partnerships in 1989, moved on to full marriage. The Australian House of Representatives and Senate both rejected an extension of marriage in September, 2012, after heated debates.130 But Kevin Rudd, back as Prime Minister in July, 2013, now supports marriage. Earlier a review of laws and regulations in Australia had eliminated all discrimination against same-sex couples in national laws (hoping, perhaps, that the reform would end any controversies). In Germany, the opposition Social Democratic Party supports opening marriage. The leading candidate for president in Chile, Michelle Bachelet, supports opening marriage. Many have commented on the speed of reform, on an issue that seemed impossible only fifteen years ago.131 President Obama has referred
129

AFP, MPs approve gay marriage in historic vote, Bangkok Post, February 7, 2013, 7. There was a free vote and more than half of the Conservative members voted against the change, but support was strong in the Labour and Liberal Democrat parties.
130

AFP, Same-sex marriage proposal gets crushed in parliament, Bangkok Post, September 20, 2012, 5. In the House there was a free vote for members of the governing Labor Party, which divided on the issue. The main opposition coalition had no free vote and opposed. See also, Dan Harrison, Judith Ireland, Senate rejects gay marriage bill, Brisbane Times, September 20, 2012.
131

While the UN Human Rights Committee has supported the extension of equal rights to same-sex couples by ascription in its decisions interpreting the International Covenant on Civil and Political Rights, in Joslin v New Zealand it faced the fact that the provision on the right to marry specifically referred to men and women, the only section in the Covenant to refer to the two sexes. Because of that language it ruled that New Zealand was not in breach of the Covenant in not extending marriage to same-sex couples. See CCPR/C/75/D/ 902/1999. When the Charter of Fundamental Rights was adopted by the European Union in 2000, the gendered language was omitted from the provision on the right to marry, which otherwise followed the wording of the ICCPR. New Zealand is expected to extend marriage in 2013.

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to an incredibly rapid transformation in peoples attitudes around LGBT issues.132 Time magazine called it the swiftest change in public opinion in U.S. history.133 A scholar said that popular support for LGBT rights appears to grow at almost miraculous speed.134 Another scholar called the pace of change extraordinary, noting that in 2003-4 Americans opposed gay marriage by roughly two to one, but by 2010 support hit 52 percent, and opposition dropped to 46 percent. Linked to this shift was a new visibility of gay and lesbian people: By 2000, the number of Americans reporting that they knew somebody who was openly gay had tripled to 75 percent [since 1985]. The percentage who reported having a gay friend or close acquaintance increased from 22 percent in 1985 to 43 percent in 1994 to 56 percent in 2000.135 Frustrated by the rapid swing in support, Texas Governor Rick Perry in 2013 referred, rather contemptuously, to homosexuality as the flavor of the month.136 Australian opposition leader Tony Abbott called same-sex marriage a fashion of the moment.137 In June, 2013, the US Supreme Court made two significant rulings on marriage. Congress had passed the Defense of Marriage Act (DOMA) in 1996, fearing that same-sex marriage was going to become legal in the state of Hawaii. By normal rules such marriages would have to be recognized as valid through out the United States. DOMA was a pre-emptive strike, to deny federal legal recognition of same-sex marriages, before any of them were actually possible anywhere in the world.138 DOMA was struck down in
132 133 134 135 136

Greg Hernandez, President Barack Obama reflects on progress, GayStarNews, December 21, 2012. David Von Drehle, We Do, Time magazine, Asia edition, April 8, 2012, 2 and 32.

Nan Hunter, Reflections on Sexual Liberty and Equality: Through Seneca Falls and Selma and Stonewall, (2013) 60 UCLA Law Review Discourse, 172 at 175. Michael Klarman, From the Closet to the Alter, Oxford, 2013, 197-8. Frank Bruni, NYT, Lets hearken to more than the Religious Right, Bangkok Post, May 14, 2013,

11.
137 138

Kathy Marks, The Independent, Australias likely leader polarisingly personable, Bangkok Post, August 18, 2013, 9. In parallel, various states passed defense of marriage laws, or state constitutional amendments, to expressly limit marriage and deny any recognition to out-of-state same-sex marriages. By 2001 there were 35 states with such laws. For some DOMA was the lesser of two evils, for it ended the likelihood of a federal constitutional amendment expressly limiting marriage to heterosexual couples. See Bill Clinton,

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June, 2013, as discrimination against homosexuals. Immediately US citizens were able to sponsor their non-citizen partners for US residency, on the basis of legal same-sex marriages. The second decision, on procedural grounds, held that only the State of California could appeal a trial level decision opening marriage to same-sex couples in the state. California had lost at trial, but refused to appeal, and no other litigants had the requisite standing to appeal the decision. This procedural ruling had the effect of opening marriage in California. A new poll shows 61% support for opening marriage in California, with 37% opposed.139 President Obama took the somewhat unusual action of intervening in the California appeal (though it was about a state law). His governments submission included the following statements: Tradition, no matter how long established, cannot by itself justify a discriminatory law. Prejudice may not be the basis for differential treatment under law. The designation of marriage, conveys a message to society that domestic partnerships or civil unions cannot match.140 At the end of March, 2013, Time Magazine reported on the two Supreme Court cases with cover photographs of same-sex couples kissing. The headline was Gay Marriage Already Won. The tagline read The Supreme Court Hasnt Made Up Its Mind But America Has. Customers could choose a copy with two women kissing, or an alternative cover of two men kissing. The kissing covers were only for the US edition. For Canada and Europe marriage was, of course, an old story. And for Asia it was still very much a Western or a US story. All editions reported on the cases. The Asia edition had two women kissing but on inside pages.

A PATTERN FOR CHANGE?

Many countries went through a sequence of reforms: (a) decriminalization (in jurisdictions where old anti-homosexual criminal laws
Its time to overturn DOMA, Washington Post, March 8, 2013.
139 140

James Withers, California voters are for gay marriage 2 to 1, GayStarNews, March 3, 2013.

Greg Hernandez, President Obama speaks out on getting involved in Prop 8 gay marriage case, GayStarNews, March 1, 2013.

38

had survived), (b) anti-discrimination laws (so that individuals are not to be fired from their jobs just because they are gay, lesbian or trans), (c) legal recognition of relationships, (d) extending equal rights in relation to children, and (e) full recognition of equality through opening symbolically important marriage. Often now marriage is in issue when earlier parts of this sequence have not been resolved. Most notably, the discussion of legal recognition of relationships in Asia is proceeding with very few achievements in protection from job discrimination. Only Taiwan and Timor Leste have general laws prohibiting such discrimination. The Philippines has such laws in four cities. The reason for leaping over an issue like job discrimination is actually quite clear. Recognition of relationships would be such a positive achievement that we assume that job discrimination would lessen. Anti-discrimination laws, focused on employment, functioned as an earlier issue with which to claim public recognition and the legitimacy of sexual diversity, replaced now by the focus on the legal recognition of relationships. Both kinds of laws had the same function, the same goal. So recognition of relationships is the current reform goal most everywhere. The Netherlands is an example of a country where recognition of relationships went through three stages ascription registration marriage. This kind of process, working through stages, is not surprising. For many people, lesbian and gay issues are new and unfamiliar because homophobia has kept lesbian and gay people in the closet for so long. Invisibility is high in much of Asia. Le Quang Binh, director of a Hanoi non-governmental organization, recounted that many National Assembly delegates in a meeting in Hue were puzzled by the reform proposals, saying that they had never met any gays or lesbians.141 Gays and lesbians had not become visible in the country through public campaigns over criminal laws or anti-discrimination laws. Dealing with specific issues, like pensions or hospital visitation rights, serves to introduce the public to the kind of issues that are involved. When
141

Anna Leach, Vote on same-sex marriage in Vietnam likely to be delayed until 2014, GayStarNews, February 20, 2013.

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these specific issues are resolved by ascription, it is easier to move to a more general system of recognition of same-sex relationships through a registration system. If a registration system is achieved, there is little reason to continue to deny the status of marriage to the couples involved. It completes a policy of equal respect. We have had over 30 years since ascription began in the Netherlands in 1979. We have had over 20 years since registration began in Denmark in 1989. We have had over 10 years since marriage was opened in the Netherlands in 2001. These issues are no longer in the closet. They are in the newspapers, on television, on the internet, every day. Little reason now to proceed slowly, through stages. For Canada and California and the Netherlands, dealing with pensions, immigration sponsorship and other issues were stepping stones to marriage. In the United States, immigration sponsorship still proved legislatively impossible in 2013. Legal marriage often was what resolved issues like hospital access, inheritance, adoption. For federal immigration law legal marriage at the state level delivered partner sponsorship under federal immigration law (once blockage by the Defense of Marriage Act was ruled unconstitutional).142 Opening marriage, it seemed, was easier than changing immigration laws to recognize same-sex couples. A country like Thailand could move to a registration system or even marriage, without going through the piece by piece steps of changes for immigration sponsorship, adoption, hospital visitation, benefits and inheritance. Marriage would put these various matters in place.

LEFT WING? RIGHT WING?

Marriage is in some ways a liberal issue, and in many ways a conservative issue.143 French author Frederic Martel dismisses the current fuss about what he sees as essentially a conservative matter:
142

Ivan Couronne, AFP, Today is a good day: US gay marriage ruling comes just in time for one couple once facing enforced separation, Bangkok Post, Life, July 2, 2013, 9; Julia Preston, Gay married man in Florida is approved for green card, New York Times, June 30, 2013..

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Now were at a moment when we are all a bit hysterical about marriage gay marriage. But this is really a conservative movement, about stability in society and being good parents and protecting children and becoming rather ordinary.144 Or as Time magazine put it: What could be more traditional, more conservative, than wanting to get married?145 A New York Times columnist, half tongue-in-cheek, called on us to celebrate a rare defeat for personal freedom as gays and lesbians embrace marriage, which, like religion and military service restricts freedom. Certain restraints on personal behavior, he noted, are part of organized social life. Now they will be extended to homosexuals. Once Americans acknowledged gay people exist, then, of course, they wanted them enmeshed in webs of obligation.146 Let them make mortgage payments, change diapers, and save money for college fees just like others.

CHANGING MARRIAGE (1)

A sociologist, being cross-examined in court in Hawaii, said that there was a risk of stability in opening marriage to same-sex couples. Marriage, he feared, would normalize and stabilize the relations of same-sex couples.
143

Joshi argues in these terms. Peter Tatchell, the Australian/British activist, founder of Outrage and a regular blogger, often writes about the loss of the liberation agenda. His equal love campaign argues for heterosexual access to registered partnerships as well as homosexual access to marriage. Urvashi Vaid both supports extending marriage and seeking alliances for broad social change.
144 145

Elaine Sciolino, The French debate gay marriage after their own fashion, New York Times, reprinted in Bangkok Post Muse, February 9-15, 2012, 18. David Von Drehle, How Gay Marriage Won, Time, April 8, 2012, 32. This statement is describing the view of Andrew Sullivan, prominent conservative gay commentator, a view, it seems, shared by the author of the Time article.
146

David Brooks, Defeat of personal freedom a victory for the good life, Bangkok Post, April 5, 2013, 9. The most amusing part of this quotation is the idea that it was heterosexual society than wanted this outcome, rather than the gay litigants who went to court seeking the right to marry.

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But more usually, opponents have feared that opening marriage to any two people would change marriage (either for the worse or the better). Perhaps it will change marriage by (a) distancing it from a family model which values children, (b) weakening commitments to fidelity within marriage, (c) reinforcing marital privilege, (d) ending assumptions of inequality of partners within marriage, or (e) working against patriarchy, or (f) reinforcing ideas of strict and separate heterosexual and homosexual identities (the Western sexuality binary). All of these propositions are problematic. (a) Gay and lesbian couples are raising children in great numbers now in the West. Studies confirm that they are good parents. As good, at least, as heterosexuals. This is occurring in a period in which fertility rates are dropping in all parts of the world.147 (b) If homosexual promiscuity is seen as a problem by society, then supporting equal marriage makes sense to try to establish more stable norms. The European Court of Human Rights has specifically rejected the notion of a gay tendency to promiscuity, calling the idea a stereotype. There is no necessary correlation between homosexuality and promiscuity, though there is an impact on such patterns caused by the discrimination and marginalization that make enduring homosexual relationships more difficult. (c) Legal marriage is privileged. It involves a set of rights and obligations. Would extending marriage repeat a pattern of privileging marriage over other forms of cohabitation, creating good gays (married), and bad ones (unmarried)?148 One writer argues that the public sphere will only grant rights to same-sex couples under the condition that they conform
147

See Teitelbaum, Winter, The Global Spread of Fertility Decline, Yale, 2013.

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by registering or getting married.149 The short answer is no, for marriage is no longer the single gateway to a set of rights and obligations. Unmarried heterosexual cohabitants are now common in the West and in Asia. They present legal issues for the state include property division, inheritance, spousal maintenance, child care, etc. Vietnam has recognized this reality. In many jurisdictions, the rights and obligations of marriage have been extended to de facto or common law couples, that is, couples living in marriage-like relationships. Opening marriage does not mean the end of the use of ascription to resolve the issues that naturally arise. Getting rid of marriage in favor of ascription alone is not feasible. That would outrage both heterosexuals and homosexuals. It is registration that may vanish in time, for it is simply an alternative version of marriage.150 (d) Marriages are less unequal now as education levels and job opportunities for women increase. In much of the world more women are studying in universities than men. Two-income families are a modern norm in the West. In the US today, 70% of children live in households in which every adult in the home is employed.151 All relationships will have some elements of inequality, but far less than in the past. (e) Patriarchy relies on clear distinctions being drawn between men and women. Excluding same-sex couples from marriage relies on drawing such distinctions. Opening marriage, like ending job discrimination on the
148

See Yuvraj Joshi, Respectable Queerness, 43 Columbia Human Rights Law Review, 415 (2012); Mariana Valverde, A New Entity in the History of Sexuality: The Respectable Same-Sex Couple, 32 Feminist Studies, 155 (2006); Douglas NeJaime, Marriage, Cruising, and Life in Between, 38 Harvard Civil Rights and Civil Liberties Law Review, 511 (2003).
149 150

Munthe-Brub, in Pedersen, Valeverdem Lund-Anderson, 165 at 173.

After the US Supreme Court decision in June, 2013 striking down the central provision in the Defense of Marriage Act, two stories indicate requirements for legal same-sex marriage in order to qualify for same-sex spousal benefits. Robert Burns, AP, Pentagon to permit benefits for same-sex spouses, August 14, 2013, states that earlier plans to provide benefits to unmarried gay partners have been dropped and special leave is available to same-sex couples to enable them to travel to a state were legal same-sex marriage is possible, so that the requirement of legal marriage for spousal benefits can be met. In a different story, employees at the famous Mayo Clinic, have been required, after the legalization of samesex marriage in Minnesota, to be married to claim spousal health insurance coverage, ending a previous policy of coverage based on the fact of a same-sex relationship. See Heather Carlson, Mayo Clinic employee must marry to keep getting same-sex partner benefits, Post Bulletin, Rochester Minnesota, July 31, 2013. These stories confirm the observation that spousal benefits based on cohabitation, different-sex or same-sex, have not been a general pattern in the various jurisdictions in the United States.
151

Stephanie Coontz, Why gender equality stalled, New York Times, Sunday Review, February 17, 2013, 1. The figure is somewhat deceptive for it includes single parent households.

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basis of sex, is something that reduces the ways in which society draws distinctions between men and women. As one author puts it, gender essentialism (which supports the idea of basic differences in roles between men and women) is used to justify limiting marriage to heterosexual couples.152 (f) Does extending marriage reify the Western sexuality binary? Does it entrench the idea that there are two distinctly separate categories, namely heterosexuals and homosexuals? Sweden described its reform as establishing gender-neutral marriage. France spoke of marriage for all. But those whose desires are not limited to men or to women are given no recognition. The bisexual must make a choice. Some prominent thinkers see the assumptions of strict and separate sexual identities (heterosexual and homosexual) as something that developed in the West, and that does not reflect the way many people actually live or view their own sexuality. Michael Foucault is a leading figure who rejected the idea of a gay identity and stayed apart from any gay activist organizations. Gore Vidal, the major American author, rejected the terms homosexual and heterosexual as inherently false, describing the vast majority of individuals as having at least the potential to be pansexual.153 Joseph Massad railed against the imposition of the western sexuality binary on societies in the Middle East, seeing it as an act of imperialism.154 A leading analysis describes how bisexuality is intellectually erased as a category in practice in the West, even by those who would use LGBTI as standard shorthand.155 The Kinsey studies showed a continuum between exclusive homosexuality and exclusive heterosexuality (with large numbers of people somewhere in between). Yet, in practice, western discourse continue to speak of homosexuals and heterosexuals as distinct categories, and now fashions marriage as something for each of the two categories. Marriage is not reformed. It is extended, as is, to homosexual couples. Seeing homosexuals as an other, a separate category, seems basic to homophobia. The Western construction of homosexuality as the identity of
152 153 154 155

Munthe-Brun, in Pedersen, Villaverde, Lund-Anderson, 165 at 171. Gore Vidal, Wikipedia, accessed April 26, 2013. Joseph Massad, Desiring Arabs, Columbia, 2007. Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, (2000), 52(2) Stanford Law Review.

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a minority, made anti-homosexual views and practices possible and likely.156 The anti-homosexual views and practices of the West triggered an identitybased human rights movement in response, asserting the minority identity as real, legitimate, and natural. Both the anti-homosexual majority views and the identity based counter-movement have been exported to the non-West, where binary views had not been equally entrenched. Hence Joseph Massads accusation of imperialism. It is clear that the vocal opposition to LGBTI rights in Asia is characteristic of relatively new evangelical Christian minorities in South Korea, Hong Kong, Singapore and Taiwan (and other new religious movements, such as the Islamic Defenders Front in Indonesia, political Islam in Malaysia, and Hindutva in India). The sociologist Li Yinhe in China, referred to earlier, argues that there was no tradition of homophobia in China, and Ruth Vanita, as earlier noted, suggests the same for India. Chou Wah-shan in his book Tongzhi in 2000 tried to construct a presentation of homosexuality in harmony with Chinese family traditions, but the term tongzhi has become an equivalent to lesbian and gay.157 Attempts to move away from the binary (once it has been established in peoples thinking) seem to fail, both in the West and the non-West. What if we begin from (a) a premise of a diversity of sexual orientations, and gender identities, (b) take seriously the oft noted fluidity of the sexuality of many individuals (particularly, it is often said, of women), (c) accept that fixed identities are not so strong, say in Thailand or the Middle East, and other places, and (d) recognize that marriage does not have the same exalted status in all cultures? Then we would seek systems of ascription that respond to the actual situation of individuals. We would fashion legal rules in response to dependency or harm avoidance (whether relating to a partner, or partners or to children). This suggests abandoning marriage (and its clone, registration) in favor of a system that is reality based. This would fit with the radicalism of the gay liberation movement in the West, which in the 1970s called for the state to stop organizing the sexual lives of individuals through arrangements like marriage.

156 157

Likely because the dislike of difference is a common recurring reality.

Chou Wah-shan, Tongzhi: Politics of Same-Sex Eroticism in Chinese Societies, Routledge, 2000; Chou Wah-shan, Homosexuality and the Cultural Politics of Tongzhi in Chinese Societies, in Jackson, Sullivan, Gay and Lesbian Asia, Harrington Park, 2001, 27-46.

45

Actual experience tells us that (a) this is too radical a change to be saleable to the larger society anywhere, and (b) gays and lesbians support the sexuality binary today as much as heterosexuals do. Bisexuals are erased in the debate, along with polygamists, polyamorists and non-sexual couples. Thats just the way it is. The extent to which cohabitation is replacing marriage can be seen as part of an unnamed grass-roots activist campaign to deconstruct marriage. So just say no (to marriage). Let ascription take over by default. Even if marriage is extended, that does not mean that it will regain a lost or fading hegemony. We need to remember that the civil solidarity pacts in France were introduced mainly because of the high rate of cohabitation by heterosexuals, not initially as a gift to gays. In reality, few people are likely to take advantage of the new law [opening marriage in France]. In Spain, which legalized gay marriage in 2005, same-sex marriages represent only 2% of the total. Applied to France, this would suggest fewer than 5,000 gay marriages a year. Under French law, marriage confers firmer rights, particularly over inheritance, than the civil pacts that have long been open to same-sex partners. The irony is that, for heterosexual couples, such pacts are now nearly twice as popular as the increasingly unfashionable institution of marriage.158 French President Hollande is not legally married to his partner. He is a serial cohabitant. Other famous cohabitants are Prime Minister Yinluck Shinawatra in Thailand and Julia Gillard, recently the Prime Minister in Australia. Cohabitation, heterosexual or homosexual, is a modern fact of life, increasingly acknowledged in family law systems which recognize such relationships in provisions which parallel those for married or registered couples.

CHANGING MARRIAGE (2)

Meanwhile, marriage has been changing in fundamental ways. - The long term shift from extended families or multigenerational families in favor of nuclear families, continues to take place in Asia.
158

Rainbow warriors, The Economist, April 27, 2013, 42

46

- Marriage rates have dropped dramatically in many countries, including Japan, South Korea, Taiwan and Singapore.159 Many women now choose careers over marriage and children. Cohabitation, without legal marriage, is common. - In socially conservative South Korea and Japan many men, who cannot locally find wives, use agencies to arrange for marriages with women from China, the Philippines, or Vietnam. This is a major change in marriage patterns.160 China now also imports brides, though this has been less visible and more clandestine.161 - Divorce is now common. In much of the West it ends 50% of marriages. US Roman Catholic Bishops in 2009 recognized that the social sanctions and legal barriers to divorce have all but disappeared. 162 In 2010 China had more divorces than marriages. 163 - The availability to women of reliable contraception (with the advent of the pill in the 1960s, the IUD and the morning after pill) has made both marriage and procreation more optional than in the past.
159

In the richer countries of East and South-East Asia, like Japan, Singapore, South Korea and Taiwan, a third or more of local women are not marrying; and those who do wed late, at 31 or 32. International Marriages - Herr and Madame, Senor and Mrs, The Economist, November 12, 2011, 63 at 64. See also, Asias lonely hearts: Why Asian women are rejecting marriage and what that means, The Economist, August 20-26, 2011, 17-20. In China extramarital relationships are increasingly accepted in society according to Chinese researcher Pei Yuxin. See Sexuality Policy Watch Promoted an InterRegional Dialogue about Sexuality and Geopolitics, ILGA Asia e-newsletter, November 29, 2011, accessed at http:// ilga.org December 4, 2011. On the decline of marriage rates in the US see The fraying knot, The Economist, January 12, 2013, 33.
160

Both the Republic of Korea and Japan have generally seen themselves as mono-cultural and racially uniform. They are not countries of immigration. Intermarriage across national boundaries has been a major departure from their closed demographic patterns. In South Korea, more than 35 percent of fishermen and farmers who married in the year up to May 2009 took foreign brides, mainly from China and Vietnam: Lawrence Bartlett, AFP, Imported brides popular as money mixes Asian marriages, Bangkok Post, August 12, 2010, 2010, 3. One in ten marriages in Taiwan now involve a spouse from outside Taiwan, China Post, Addressing declining marriages and births, The Nation (Bangkok), May 2, 2013, 11A. Sex-selective abortion, reducing the local female population, is not a factor in Japan or South Korea.
161 162 163

A specific example is found in Pushed to the Brink: Conflict and human trafficking on the KachinChina border, Kachin Association Thailand, June, 2013 (www. kachinwomen.com). Marriage: Love and Life in the Divine Plan, A Pastoral Letter of the United States Conference of Catholic Bishops, November, 2009, line 69. AFP, Mass wedding but massive divorce rate, Bangkok Post, October 8, 2011, 5. 1.96 million divorces. 1.2 million marriages.

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- Birth rates have dropped in all parts of the world. The richest countries all face the prospect of population decline (countered in some by immigration).164 - The raising of children has no necessary linkage to marriage in the contemporary West. Many couples, married or unmarried, are childless by choice. Single parent families are common. Individuals can adopt children. Increasingly same-sex couples can adopt. Alternative insemination, surrogacy and various reproductive technologies have created new possibilities for individuals and couples, without regard to sexual orientation, marriage or other factors. - In much of the West the rights and obligations of marriage have been extended to unmarried heterosexual couples, often designated as de facto or common law couples. This shift made it politically easier to extend rights and obligations to same-sex couples by ascription. Why, then, would gays and lesbians give such priority to equal access to marriage? The answer is three fold: Access to marriage can solve a number of specific problems in one blow think of inheritance, hospital visitation, immigration and pension benefits. There is another reason. Minorities are more complicated than majorities. Majorities emerge from long periods of economic, social and cultural integration and assimilation. Sexual minorities have a lot in common with cultural minorities in their relations with majority populations. They are difficult for majority people to understand. Not only are they different, but they are internally diverse. Majorities are also internally diverse, but they function on a day to day basis by emphasizing common values, common patterns of living and programs of assimilation.
164

Globally, the average fertility rate has roughly halved in the past half century from five in the mid1950s to 2.5: A new science of population, The Economist, May 19, 2012, 83, citing John May, World Population Policies, Springer, 2012. In 2011 the fertility rate in the United States dropped below the replacement rate of 2.1, to 1.9, below both France and the United Kingdom: see Virility symbols, The Economist, August 11, 2012, 32; Double bind, The Economist, December 15, 2012, 39. Founding father Lee Kuan Yew, in a national day address in August, 2012, lamented that the day could come when Singapore would fold up because of declining births: Jan Lund, DPA, Singapores singles urged to procreate, Bangkok Post, September 1, 2012, 4.

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Everywhere majorities dont really want to pay a lot of attention to minorities. They dont have time. They are busy with many other things. Running a modern state, managing your job, sustaining relationships are not easy tasks. Everyone is concerned with day to day matters. Strategically, minorities need to get the attention of majorities with simple, easily understood demands. Reductionism is a necessary strategy. Thirdly, marriage is the basic current claim to equal recognition, equal legitimacy, equal morality, and an equal claim on the public institutions and public consciousness of the dominant society. Anything less is second-class, back-of-the-bus, separate and unequal.

TALKING TO THE LARGER SOCIETY

The claim to marriage is a simple, easily understood demand. It tells heterosexuals that they are not the only people who deserve a normal unstigmatized life. It means that we are not just arguing about pensions or hospital visitation rights, but about being accepted as fellow human beings who love their partners. It captures the goal of equality with great clarity. It resolves many legal issues for same-sex couples (and for transgender and intersex people). And it does this both comprehensively and with a simple, clearly stated reform. And it gives a framework for state agencies to apply in a range of day-to-day issues and disputes. Marriage is now a credible demand. Marriage is open in major jurisdictions Argentina, Canada, South Africa, Spain, New York State soon the UK and France not just small liberal northern European countries like Sweden and the Netherlands (though we praise them for their leadership). The wonderful simplicity of the marriage claim has energized both support and opposition. Some issues provoke opposition. Supporting the Euro with bailouts, defending Obamacare, hoping for more open trade rules are all far too complex to bring people onto the streets except in

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opposition one- sided demonstrations. In contrast, opening marriage is as easy to oppose as it is to promote. No one predicted the two decades of opposition to opening marriage in the politics of the United States, or the massive demonstrations in officially secular France against reform in 2012-13. But it is only in some countries that the issue triggered opponents as well as supporters. In other places Netherlands, Belgium, Canada are examples the reform was in the end largely a non-event, simply following on a decade or more of reforms It seems likely that some Asian countries can follow the non-event model in extending rights. In others reform will be contested. The idea of opening marriage can no longer be dismissed as impossible by Asian politicians. It is a real issue. It will happen in Asia. What country will lead the way at least with a registration system maybe with marriage? Maybe Taiwan. Maybe Nepal. Maybe Vietnam. Maybe Thailand.

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Earlier versions of this paper were presented at: - Thai Sexuality Studies Conference, Bangkok, September, 2011. - ASLI, Asian Law Schools Conference, NUS, Singapore, June 1, 2012. - Second ASEAN International Human Rights Conference, Southeast Asia Human Rights Network, Jakarta, October 18, 2012. - International Lesbian and Gay Association World Conference, Stockholm, December 15, 2012. - International Lesbian and Gay Association, Asia Regional Conference, Bangkok, March 30, 2013.

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An earlier version forms a chapter in Petersen, Villaverde, LundAndersen, Contemporary Gender Relations and Changes in Legal Cultures, DJOEF Publishing, Copenhagen, Denmark, 2013, 211-233. [[]] [[]] [[]] [[]] [[]] [[]] [[]] [[]] [[]]