Document Type

Article

Publication Date

2019

Abstract

This Article comparatively analyzes the judicial decisions that led to same-sex marriage equality in Taiwan, South Africa, and the United States. After first evaluating the structural mechanisms that led Taiwan to become the first Asian nation to legalize same-sex marriage through Interpretation No. 748 of the Taiwan Constitutional Court, this Article then draws comparisons to how marriage equality was similarly affected through a delayed imposition of the court order in South Africa to allow the legislature an opportunity to rectify the law in Minister of Home Affairs v. Fourie, and finally considers how these approaches provide equally viable and more inclusive alternatives to the incrementalist strategy employed by gay rights activists in the United States that resulted in Obergefell v. Hodges. In the United States, same-sex marriage equality was accomplished through an incrementalist approach that recommends a certain ordering/or judicial lawmaking- that societal values must change and evolve first, and action by the Court follows after to reflect the change in societal morals. The Taiwanese and South African decisions, on the other hand, are more proactive and suggest a different ordering/or judicial change - that it is the duty of the government to define and shape the evolution of societal values, which is best accomplished when the judiciary works in tandem with the legislature to spearhead that social change.

Publication Citation

34 Conn. J. Int'l L. 143 (2019).

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