EditorialGay marriage a matter for society, not courts
- As a senior immigration officer wins his legal battle over spousal benefits for his husband and their right to file a joint tax assessment, Hong Kong must reflect on where it goes from here
The top court has gone some way towards putting Hong Kong on the same page as other parts of the world that have embraced equality and rejected discrimination against same-sex couples, in a case in which it overruled the government in favour of a gay civil servant. As a result, the administration will have to review relevant policies and practices, with implications for non-compliance in the private sector. Senior immigration officer Angus Leung Chun-kwong took the government to court over its refusal to grant spousal benefits for his British husband and not allowing the couple to submit a joint tax assessment. After at least winning the claim for spousal benefits in a lower court before the decision was overturned on appeal, Leung has prevailed in his final appeal on both issues, meaning the couple will receive the benefits and joint tax assessment.
It is another landmark ruling for the city’s LGBT community in the Court of Final Appeal, which last year backed an expatriate lesbian in recognising her overseas marriage for the purpose of getting a spousal visa. In a separate case a few days ago the Court of First Instance sided with a gay activist and struck down or revised seven criminal offences that discriminated against homosexual men, although the government offered no contest on most of them.
In a unanimous decision in the Leung case, the court said it accepted the government had a legitimate aim to protect the institution of marriage, but rejected the prevailing views of the community on marriage as a relevant consideration because reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim “is inimical in principle to fundamental rights”. It could find no rational connection between protecting the institution of marriage and denying employment and tax benefits.
Hong Kong, as a vibrant, tolerant international city that ought to be embracing change, still lags other places. Australia and New Zealand lawmakers have voted to legalise same-sex marriage and Taiwan followed suit last month. After the government’s latest defeat in the courts the question appears to be where same-sex marriage is headed. It would be a sad reflection on Hong Kong society if, in the end, it is effectively left to the courts to decide.