Gay marriage would be more at home among Hong Kong’s traditions than court suggests

Marco Wan says the Court of Appeal’s invocation of ‘traditional’ marriage in Hong Kong belies the multiplicity of intimate unions practised in the territory throughout history

PUBLISHED : Wednesday, 06 June, 2018, 1:55pm
UPDATED : Wednesday, 06 June, 2018, 8:46pm

In the latest twist in the saga of same-sex unions in Hong Kong, the Court of Appeal ruled against Angus Leung Chun-kwong, the gay civil servant who asked the government not to discriminate against him by granting him and his male partner, whom he married abroad, spousal benefits, and allowing them to file their taxes jointly. The court notes that Leung’s claims were inconsistent with the local culture, history and tradition upon which the contemporary understanding of marriage is built.

However, a closer look at Hong Kong’s unique traditions of marriage suggests that these traditions actually support Leung’s case. Decades of gay rights litigation have taught us that the past that gets evoked to resist change is often more imaginary than real, and any use of it, whether by courts, politicians or activists, should be scrutinised.

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In ruling against Leung, the court underscores that Hong Kong’s prevailing socio-moral values militate against any official recognition of his marriage. Crucially, it emphasises that such societal views are primary considerations for both the court and the government because they are derived from long-standing local practices and beliefs associated with marriage. Granting spousal benefits or joint tax assessment to gay and lesbian couples, then, would be tantamount to going against the history of marriage in Hong Kong.

The court is insistent on this point: phrases like “the Hong Kong context”, “history”, “tradition” and “long usage” appear repeatedly in the judgment.

This inward turn towards the city’s supposedly unassailable lineage also underpins the court’s sidelining of developments in the long line of pro-gay jurisdictions around the world, including that of Britain, the United States, Taiwan and European countries like France and Germany.

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However, “marriage” as it is locally understood today actually gained its exclusive status relatively late in Hong Kong’s history. In fact, the moment can be dated precisely: October 7, 1971, or the date the Marriage Ordinance creating Hong Kong’s current marriage regime came into effect. The ordinance was designed to streamline and consolidate a much more heterogeneous and complex set of unions in the city.

Far from being a tradition, the conception of marriage in contemporary Hong Kong society is of recent vintage. The claim that current socio-moral values about marriage are premised on a single, age-old, unchanging institution is, to quote the historian Eric Hobsbawm, an invention of tradition.

A brief description of some of these other unions that coexisted with registered marriage will give a flavour of the varied legal landscape that existed for most of Hong Kong’s history.

These include Chinese customary marriage, concubinage, and modern Chinese marriage. Even though no one could enter into these unions after October 1971, some of those formed before that date lasted well into the 21st century.

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Customary Chinese marriage goes back to at least the Qing dynasty, and its formalities were known as the six rites. Unlike marriage as we know it now, it was understood as a union not between two individuals, but between their two families. As such, the consent of the bride and groom was not a required element of the marriage. Instead, the contract of marriage was made between the heads of the two families.

A customary Chinese marriage was potentially polygamous, as the husband could take on concubines. Even though a firm distinction was maintained between the primary wife (or t’sai) and the concubine or secondary wife (or t’sip), the concubine had definite marital rights and her children were regarded as legitimate children of the family. A man could take as many concubines as he could financially support.

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A modern Chinese marriage under the Chinese Civil Code of 1930, unlike a customary marriage, was conducted between the two parties rather than between their parents. Moreover, it was presumed to be monogamous. There was no formal registration process like the one today; it was deemed valid if it involved an open ceremony in the presence of two witnesses.

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Even a brief sketch of the history of marriage in Hong Kong shows that the legal landscape was characterised by a plurality of unions, contrary to claims that our current socio-moral values about marriage are based on a monolithic institution. Different kinds of relationships coexisted largely peacefully, no single conception of marriage was regarded as superior over others, and unions other than registered marriage were given recognition by the courts and the government for years.

If we are to speak of the history or tradition of marriage in Hong Kong, then we need to acknowledge the multiplicity of unions, plurality of relationships and variety of ways of organising intimate life that formed the basis of Hong Kong society for so long. It is that multiplicity, plurality and variety that makes the history of marriage unique in the Hong Kong context.

The status of marriage in contemporary Hong Kong is quite new. To say otherwise is to misunderstand the city’s history.

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What, then, does the existence of these different kinds of unions tell us about the debate about gay marriage in our own time? To be clear, I am not suggesting that we should return to any of the unions outlined above; to argue for a return to something like concubinage or customary marriage would go against all precepts of gender equality and would be absurd.

Different kinds of relationships coexisted peacefully, no single conception of marriage was regarded as superior over others

The point I am making is that these traditions show us that Hong Kong is comfortable with different modalities of intimate relationships existing alongside one another; history reveals that it can accommodate more than one kind of private life; long usage and cultural practice indicate that it can give recognition to more than a single, monolithic conception of marriage.

Combined with the equality jurisprudence of our own time, Hong Kong’s history of marriage provides a solid foundation for the recognition of forms of unions beyond the single category permitted by the existing legal framework.

In the 21st century, the courts are asked whether Hong Kong could recognise different kinds of intimate life, including heterosexual marriage, transsexual marriage, gay marriage and lesbian marriage. They are asked whether the city would be comfortable with recognising the equal dignity of sexual minorities and allowing their relationships to exist harmoniously alongside heterosexual relationships.

In other words, the courts are asked whether the plurality, variety and multiplicity that have characterised the marital landscape for so long are still alive and well. To say “yes” would indeed be true to Hong Kong’s history and tradition of marriage – and to its modernity.

Marco Wan is associate professor of law and honorary associate professor of English at the University of Hong Kong