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Article: Sticking to the Past: Same-sex Union and Original Meaning in Hong Kong

TitleSticking to the Past: Same-sex Union and Original Meaning in Hong Kong
Authors
Issue Date2020
Citation
National Taiwan University Law Review, , accepted for publication; forthcoming How to Cite?
AbstractThis article builds on the author’s work on the uses of history by the Hong Kong law courts in the context of sexual minority rights, and focuses on the judicial turn to original meaning in the territory’s latest case on marriage equality: MK v. HKSAR. In that case, the Court of First Instance held that neither the government’s refusal to legalize same-sex marriage nor its failure to provide an alternative framework for the recognition of same-sex relationships was unconstitutional. In particular, the court reasoned that the meaning of ‘marriage’ in Article 37 of the Basic Law, which guarantees the right to marry and to raise a family freely, should be determined in light of the understanding of the term when the constitutional document was promulgated. I argue that the court’s insistence on original meaning goes against the grain of the majority judgment in W v. Registrar of Marriages, which to date remains the only case on the right of marry from Hong Kong’s Court of Final Appeal. I further argue that despite the Court of First Instance’s reliance on lex specialis, there is significant precedential force for the introduction of both same-sex marriage and civil partnerships in Hong Kong.
Persistent Identifierhttp://hdl.handle.net/10722/294076

 

DC FieldValueLanguage
dc.contributor.authorWan, MMH-
dc.date.accessioned2020-11-23T08:25:59Z-
dc.date.available2020-11-23T08:25:59Z-
dc.date.issued2020-
dc.identifier.citationNational Taiwan University Law Review, , accepted for publication; forthcoming-
dc.identifier.urihttp://hdl.handle.net/10722/294076-
dc.description.abstractThis article builds on the author’s work on the uses of history by the Hong Kong law courts in the context of sexual minority rights, and focuses on the judicial turn to original meaning in the territory’s latest case on marriage equality: MK v. HKSAR. In that case, the Court of First Instance held that neither the government’s refusal to legalize same-sex marriage nor its failure to provide an alternative framework for the recognition of same-sex relationships was unconstitutional. In particular, the court reasoned that the meaning of ‘marriage’ in Article 37 of the Basic Law, which guarantees the right to marry and to raise a family freely, should be determined in light of the understanding of the term when the constitutional document was promulgated. I argue that the court’s insistence on original meaning goes against the grain of the majority judgment in W v. Registrar of Marriages, which to date remains the only case on the right of marry from Hong Kong’s Court of Final Appeal. I further argue that despite the Court of First Instance’s reliance on lex specialis, there is significant precedential force for the introduction of both same-sex marriage and civil partnerships in Hong Kong.-
dc.languageeng-
dc.relation.ispartofNational Taiwan University Law Review-
dc.titleSticking to the Past: Same-sex Union and Original Meaning in Hong Kong-
dc.typeArticle-
dc.identifier.emailWan, MMH: mwan@hkucc.hku.hk-
dc.identifier.authorityWan, MMH=rp01272-
dc.identifier.hkuros319640-
dc.identifier.volumeaccepted for publication; forthcoming-

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