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

Abstract

This 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.