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August 21, 2017

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Full text of Constitutional Court ruling in favor of same-sex marriage

(6) Sexual orientation is an immutable characteristic that is resistant to change. The contributing factors to sexual orientation may include physical and psychological elements, living experience, and the social environment. Major medical associations have stated that homosexuality is not a disease. In our country, homosexuals were once denied by social tradition and custom in the past. As a result, they have long been locked in the closet and suffered various forms of de facto or de jure exclusion or discrimination. Besides, homosexuals, because of the demographic structure, have been a discrete and insular minority in the society. Impacted by stereotypes, they have been among those lacking political power for a long time, unable to overturn their legally disadvantaged status through ordinary democratic process. Accordingly, in determining the constitutionality of different treatment based on sexual orientation, a heightened standard shall be applied.

(7) The Marriage Chapter does not set forth the capability to procreate as a requirement for concluding an opposite-sex marriage. Nor does it provide that a marriage is void or voidable, or a divorce decree may be issued, if either party is unable or unwilling to procreate after marriage. Accordingly, reproduction is obviously not an essential element of marriage. The fact that two persons of the same sex are incapable of natural procreation is the same as the result of two opposite-sex persons' inability, in an objective sense, or unwillingness, in a subjective sense, to procreate. Disallowing two persons of the same sex to marry, for the sake of their inability to reproduce, is a different treatment having no apparent rational basis.

(8) The basic ethical orders built upon the existing institution of opposite-sex marriage will remain unaffected, even if we allow two persons of the same sex to enter into a legally recognized marriage pursuant to the formal and substantive requirements of the Marriage Chapter, as long as they are subject to the rights and obligations of both parties during the marriage and after the marriage ends. Disallowing two persons of the same sex to marry, for the sake of safeguarding basic ethical orders, is a different treatment, also obviously having no rational basis. Such different treatment is incompatible with the spirit and meaning of the right to equality as protected by Article 7 of the Constitution.

(9) The authorities concerned shall complete the amendment or enactment of relevant laws in accordance with the ruling of this Interpretation, within two years after the announcement of this Interpretation. It is within the discretion of the authorities concerned to determine the formality (for example, revision of the Marriage Chapter, enactment of a special Chapter in Part IV on Family of the Civil Code, enactment of a special law, or other formality) for achieving the equal protection of the freedom of marriage for two persons of the same sex.

(10) If the amendment or enactment of relevant laws is not completed within the said two-year timeframe, two persons of the same sex who intend to create a permanent union of intimate and exclusive nature for the committed purpose of managing a life together may, pursuant to the provisions of the Marriage Chapter, apply for marriage registration to the authorities in charge of household registration, by submitting a document signed by two or more witnesses. Any such two persons, once registered, shall be accorded the status of a legally recognized couple, and then enjoy the rights and bear the obligations arising on couples.

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