A matter of basic rights

With the debate over the constitutional review raising questions about the correct interpretation of the Basic Law, I cannot help but wonder if different interpretations may also arise from Article 37, which says: 'The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.'

Currently, same-sex couples in Hong Kong are denied the freedom to marry and, to add insult to injury, the government does not recognise same-sex marriages that took place, legally, abroad. The administration maintains that Hong Kong law defines marriage as between a man and a woman. But this may be an infringement of Article 37.

Constitutional debates surrounding same-sex marriage are raging in North America. Following the lead of Ontario and British Columbia in Canada, a court in the US state of Massachusetts made a ruling last November to support same-sex marriage. In each case, the rulings were made based on the interpretation that banning same-sex couples from marrying infringes the constitution of the respective jurisdiction. The same thing may well happen in Hong Kong in the near future.

Should that be the case, the government would have two options: amend the law accordingly, or turn to the National People's Congress for help, as it did with the right-of-abode ruling in 1999. The NPC would need to override the court judgment by declaring that the definition of marriage is limited to between a man and a woman.

This kind of constitutional manoeuvring is already under way in the US. After the court ruling, those Massachusetts lawmakers who oppose same-sex marriage have, on three occasions, proposed a bill to amend the state constitution to restrict marriage to a man and a woman. Each time the bill has been defeated.

On February 12, San Francisco Mayor Gavin Newsom ordered the county clerk to begin issuing marriage licences to same-sex couples, despite a state law in California that restricts marriage to a man and a woman. His action has ruffled a lot of feathers, and some conservative groups are threatening to sue him for violating the state law. But Mr Newsom has defended his actions, saying that his office is 'reading the direct language within the state constitution ... do the right thing and extend the privilege that's extended to my wife and myself, and millions of us across the country, to same-sex couples'.

Court hearings are being held to decide the legality of Mr Newsom's action, but hundreds of same-sex couples from across the country have already flocked to San Francisco's City Hall and obtained a licence.