HK Court of Appeal’s decision to overturn judgement on same-sex marriage is a huge step back for equality and LGBT rights

Ernest Leung

Overturning an earlier judgment at the High Court requiring the government to grant spousal benefits to employees in same-sex marriages is wrong

Ernest Leung |

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Senior immigration officer Angus Leung (left) and his husband Scott Adams applied for spousal benefits from the government.

Hong Kong’s Court of Appeal has overturned a landmark judgement that the government should grant spousal benefits to employees in same-sex marriages. The decision is a huge step back in the fight for equality. There are three things wrong with the court ruling.

Firstly, it confuses moral, religious and traditional values. Chief judge Andrew Cheung Kui-nung said that to grant such benefits was to challenge established traditional, moral or religious values. While same-sex marriage goes against certain religious or traditional values, I fail to see how it affects moral standards.

The fact is that most religious and traditional values are upheld simply because they have existed for a long time, not necessarily because they are morally correct. By putting these perspectives under the same umbrella, the court risks limiting discussions about same-sex marriage to the moral principles involved, in the name of protecting established values. This is not helpful at all.

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Secondly, the judgement confuses legal and moral issues. Judge Cheung’s reference to Article 37 of the Basic Law suggested that the court’s decision was reached by faithfully interpreting the constitution. Yet the court also seemingly made some sort of moral calculation to come to its conclusion. Therefore, while the court has attempted to shield itself from moral reasoning through legal arguments, it has nevertheless imposed a moral judgement on the issue.

Thirdly, there is concern over a “slippery slope”. One of the judges, Jeremy Poon Shiu-chor, argues that by offering concessions such as spousal benefits to gay people, the status of marriage would diminish in the eyes of the public. I don’t think so. Granting a basic right such as spousal benefits simply puts same-sex marriage on the same level as marriage between a man and a woman. To argue that this would diminish the status of marriage is to say that same-sex marriage is a lesser form of marriage. This position is utterly irreconcilable with basic human rights.

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Ultimately, it seems that the appeal court is saying that even a small concession towards same-sex marriage is too large a step to take. The result is a further entrenchment of the traditional concept of marriage.

Aside from the fact that this is a step back for equality, let’s not forget that – as judge Poon himself noted – the government is the “custodian of Hong Kong’s prevailing socio-moral values”. If that’s the case, the government should reflect on the undeniable shift in society’s attitude towards marriage in the first place.

Yet even if we accept that the prevailing socio-moral values do in fact oppose same-sex marriage, doesn’t the government have a duty to safeguard minority groups from being deprived of their basic human rights, even if it means going against “public opinion”? This judgement is extremely disheartening for a city that celebrates diversity and pluralism.

Edited by Charlotte Ames-Ettridge