A three-judge panel of the Court of Appeal has overturned a lower court’s decision granting spousal benefits to the husband of a gay Hong Kong civil servant.
Court of Appeal Chief Judge Andrew Cheung said Friday that Hong Kong’s de facto constitution favours heterosexual marriage and therefore it is not discriminatory for gay people to be excluded from marrying.
The decision came more than a year after the High Court ruled that a Hong Kong civil servant can enjoy civil service welfare benefits for his husband. The applicant, Angus Leung, is an immigration officer and married his husband in New Zealand in 2014.
‘Traditional concept of marriage’
Cheung said Friday that the law in Hong Kong “is and has always been understood” to mean that Article 37 of the Basic Law “constitutionally guarantees the right to heterosexual, but not, same-sex marriage.”
“It is not necessary to ask what the traditional, social, moral or religious reasons or values that inform this preference in the Basic Law are. Whatever they may be, these reasons or values are now embedded in our Basic Law,” he said.
Article 37 of the Basic Law stipulates that “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”
Although the Basic Law guarantees equality before the law, the judge said there is a “fundamental, constitutional backing” to saying that protecting the “traditional” concept and institution of marriage is a legitimate aim.
He said the applicant “has to accept” the position of the Basic Law until it is changed by an amendment to the mini-constitution or a definitive court interpretation.
Judge Jeremy Poon said in agreement that the court must bear in mind the local context, namely the Basic Law and the “prevailing socio-moral views of society” which considers heterosexual marriage the “only acceptable form of marriage.”
In his judicial review application, Leung also challenged the Inland Revenue Department’s refusal to allow him to jointly assess his taxes with his husband. The Court of Appeal upheld the lower court’s decision to rule in favour of the tax department. The Civil Service Bureau welcomed Friday’s judgment.
‘Huge back step for equality’
Leung said in a statement Friday that he and his husband are “extremely disappointed” at the decision. “It is a huge back step for equality in Hong Kong. We are not asking for special treatment, we just want to live our life fairly and with dignity,” he said.
Human rights lawyer Mark Daly, who serves on Leung’s legal team, criticised the judgment for deviating from international human rights law and amounting to a “retrograde ossification of the law.” He warned that the decision may “embolden anti-LGBT paranoia.”
“It appears that the rights and the people before the court expecting justice were forgotten and treated as a mere afterthought. If this type of judicial analysis prevails, it does not bode well for minority rights and Hong Kong as an international city,” he said.
Pro-democracy lawmaker Ray Chan, who is openly gay, described Friday’s judgment as “extremely conservative” and expressed disappointment.
“The court said today that it may give a different decision someday when the prevailing societal view changes. Does it mean that we need to present to the court public opinion polls as evidence in the future?” he said. “It is not right to make the fundamental rights of minorities dependant on the majority view.”
He said that, in light of the Court of Appeal’s decision, it may be necessary to directly challenge the constitutionality of the Marriage Ordinance, which defines marriage as between a man and a woman.
Leung said he and his spouse will discuss the judgment with their lawyers before deciding the next step.
