Last Friday, Taiwan passed the Enforcement Act of Judicial Yuan Constitutional Interpretation No. 748, which is pointedly not named the Marriage Equality Act. This is not a post about how wonderful it is for Taiwan to pass such landmark legislation or how it is the first country in Asia to do so. (For the record, I think it is pretty great.) T his post is about the politics behind that momentous act.
This issue has turned into something of a political nightmare for President Tsai and the DPP. Courtney Donovan Smith has done a fantastic job of following all the twists and turns over the past four years, tracing how it all went politically wrong for the DPP. I highly recommend reading that piece before continuing this one, because I’m going to assume all that as background knowledge. I only have two points to add to Donovan’s excellent account. People don’t pay enough attention to President Tsai’s judicial appointments, and it isn’t commonly appreciated just how much the revisions to the Referendum Act changed the entire process and outlook for marriage equality.
Marriage equality would not have gotten to the front of Taiwan’s political agenda if the Council of Grand Justices hadn’t put it there. Yes, there were demonstrations and activists, but they weren’t anywhere near powerful enough to force their way onto the agenda. There wasn’t a consensus in public opinion, and it wasn’t close to getting on the party platform of either of the two major parties. Without the court, this would have lingered on the sidelines, waiting behind other stalled causes such as judicial reform, moving the Taipei city airport, and absentee voting. Why did the court put this case on the agenda? It did so because a majority of the justices took a progressive view of this question. And that happened because President Tsai appointed progressives to the Council of Grand Justices. There are fifteen justices. The President and Vice President of the Judicial Yuan serve four year terms, and the other thirteen serve eight year terms. Due to disputes dating back to the late Chen presidency (ie: the legislature refused to confirm anyone Chen nominated), the calendar for filling vacancies got screwed up. A political settlement allowed Tsai to fill seven vacancies (including the President and VP of the Judicial Yuan) after she took office, so there are four justices nominated by Ma in 2011, four more nominated by Ma in 2015, and seven nominated by Tsai in 2016. All seven of Tsai’s nominees went on record as being in favor of marriage equality. None of Ma’s eight nominees publicly expressed support for marriage equality. The 2011 nominees weren’t asked about the issue. The 2015 nominees were asked to raise their hands if they supported marriage equality, and none of them did. Granted, at least one of Ma’s nominees actually did vote for marriage equality, and only two issued formal dissenting opinions. However, there is a clear difference between the types of people Tsai and Ma nominated. If Tsai had appointed the types of people Ma did, it is highly unlikely that the court would have ruled in favor of marriage equality. In short, Tsai was responsible for getting marriage equality on Taiwan’s political agenda. The activists seem to feel she has betrayed them by not vocally leading the fight, but without her contributions, there wouldn’t even be much of a public fight. No Tsai, no marriage equality.
The second point is that revising the Referendum Act changed everything. The act was revised in December 2017 to lower the thresholds for both proposal and passage of referendums. Under the old law, a referendum needed 50% turnout and more yes than no votes to pass. Since opponents simply declined to vote, the yes side needed to supply 50% of the total electorate. Six referendums had been held since 2004, none of which had come very close to passing. Under the new law, the yes side simply needs to exceed 25% of the electorate, and yes votes must outnumber no votes. When combined with a general election, this effectively removed turnout as a consideration. As long as the yes side got more votes than the no side, the referendum would almost surely pass. In 2018, 31 referendums were introduced, 10 made it onto the ballot, and seven passed. Five of them dealt with marriage equality.
Why was the Referendum Law revised? Two groups were most vocal in support. On the one hand, Taiwan independence fundamentalists have been pushing referendums for years. They would have us believe that referendums (“direct democracy”!!) are a fundamental democratic right, and any system that doesn’t allow for referendums is not actually a democracy. (As a political scientist, let me comment on that: Horsefeathers! Malarkey! Bovine Feces!) Of course, they actually want referendums to become institutionalized because they hope to one day hold a referendum on Taiwan independence. On the other hand, the growing group of young and alienated voters sees referendums as a way to bypass the established (read: corrupt) parties and go directly to the people. Ko Wen-je’s fascination with i-voting neatly reflects this sentiment (even though it has been a disaster every time he has tried to use i-voting to make a public policy decision). The two groups intersect perfectly in the person of Lin Yi-hsiung 林義雄。The independence fundamentalists, who are disproportionately socially conservative old men, probably weren’t too distressed by how referendums affected marriage equality. However, the young progressives should be. The New Power Party 時代力量 was the strongest voice in the legislature demanding the Referendum Act be changed. Ironically, its first important substantive impact has been to harm marriage equality, one of the NPP’s core goals. Somehow, the NPP leaders seem unable to connect these two points.
The court made its decision in May 2017 and set a two year deadline. Politicians rarely do anything controversial without a deadline, so it should surprise no one that the legislature hadn’t taken action by the beginning of 2018. Before the Referendum Act was revised, marriage equality activists could argue that public opinion was mostly on their side. They had some limited polling, which if you looked at it from just the right angle suggested that more people supported them than opposed them. They also convinced quite a few legislators to sign pledges supporting marriage equality. With the weight of the court opinion behind them, they had a strong case for hoping to get full marriage equality. As legislators went back home and talked to their constituents, we started getting rumblings of popular dissatisfaction. However, there was no authoritative way to quantify this public sentiment. Any circumstantial evidence could be countered by other circumstantial evidence. For example, NPP chair K.C. Huang 黃國昌 was subjected to a recall election in December 2017, and the activists who stood outside collecting signatures were almost all from social conservative groups opposing marriage equality. However, the recall vote failed, and it was easy to dismiss it as simply a KMT-led partisan effort (as I myself did) rather than as a sign of an enormous groundswell against gay marriage.
Once the Referendum Act passed, the anti-marriage groups started organizing almost immediately to put their measures on the ballot. And once it became clear that the public was going to have an opportunity to weigh in, the politicians had a perfect excuse to stall. Why should the politicians decide whether to amend the Civil Code or pass a special law before the voters had a chance to express their opinions? Once the Referendum Act passed, there was zero chance of the legislature doing anything on marriage equality before the November 24, 2018 election.
Stalling wasn’t the most important consequence. The most important consequence was that referendums provided a vehicle for activists to organize, focus, and interpret public opinion. Without a referendum, attitudes about marriage equality were vague. It wasn’t clear how broad or intense anti-marriage sentiment was. It wasn’t even clear if people cared enough about the issue to bother voting on it. There also wasn’t a strong organization of people to voice anti-marriage opinions or to decide exactly the form that those opinions should take. The referendum encouraged the religious organizations to join together under an umbrella group, to put together rosters of volunteers, to hold events, and to galvanize their own attitudes through their activism.
Once the referendum was held, society discovered that public opinion was much more strongly against marriage equality than even the anti-marriage activists expected. There simply is no way to sugarcoat losing by a two-to-one margin. You could tell that the anti-marriage side was stunned by their own success because they almost immediately tried to disown their own referendum. They had proposed a convoluted question in which they proposed “protecting” gay couples’ “rights” through some means other than amending the Civil Code. This measure passed 6.40 million to 4.07 million. (The marriage equality side asked a much clearer but logically equivalent question, and that one failed 3.38 million to 6.94 million.) The anti-marriage side had not dared to ask whether gay marriage should simply not be allowed. After the referendum results were tallied, they openly announced opposition to any legalization of gay marriage. The referendum emboldened them to take a much more radical stance than they had originally dared. Moreover, much of society bought into this new interpretation. Many people did not see the vote as an expression of support for a special law legalizing gay marriage (as it was literally written), but as an expression of opposition to any form of gay marriage.
The referendum erased any possibility of full marriage equality through a revision of the Civil Code. The only path that was politically palatable would be a special law, and even that was going to be extremely hard for the legislature. It took a heroic effort by the Tsai government, especially from Premier Su, to rescue the situation.
We now fast-forward to last week. With the May 24 deadline approaching, the legislature had to make its decision. In discussing the events of last week, I will draw heavily on two excellent accounts of what went on behind the scenes, one from Mirror Media (鏡週刊) and one from the Central News Agency (中央社). If you read Chinese, I highly recommend you read their full accounts.
The DPP had decided long ago to try to pass the cabinet bill without subjecting its members to extra votes. At the first reading on March 5, the DPP voted to bypass committee hearings and send the bill directly to the floor for the second reading. That vote passed 59-24, with 5 abstentions. All 59 yes votes came from the DPP and NPP; all 24 of the no votes came from the KMT and PFP. The five abstentions were all DPP members. The DPP did not want to force its members to go through public committee hearings in which the KMT would try to get them to openly take unpopular positions. The KMT, in contrast, was incensed that it was denied this fun. In addition to the cabinet’s bill, there were a few other bills proposed. Most of these were from marriage equality opponents, such as KMT legislator Lai Shi-pao’s 賴士葆 bill, which was tellingly titled, The Enforcement Act for Referendum #12 公投第十二案施行法草案. The DPP legislative caucus used its procedural powers to adopt a first-winner voting rule. Multiple versions of each clause would be placed on the agenda. The first one to be passed would be adopted with no need for a vote on any of the other versions. Moreover, the first version to be voted on would be the cabinet’s bill, so if the cabinet’s version passed, legislators would not have to vote on any of the other versions. The KMT screamed about these procedures, but there is nothing particularly abnormal about them. I wrote a chapter of my PhD dissertation on how majority parties use their procedural tools to provide political cover for their members to help those members make politically difficult decisions.
Even with these procedures in place, it was by no means certain that the cabinet’s bill would pass. In the days before the vote, the DPP party caucus polled its members and found it only had 31 solid votes. There are 113 legislators, and even if some of them don’t show up, 31 is not enough. There was even an attempt to organize legislators from central Taiwan to collectively boycott the votes. They knew they could probably count on the five votes from the NPP, and they thought they would have the support of one KMT legislator, Jason Hsu 許毓仁。With 39 other KMT, PFP, and independent legislators, the overwhelming majority of whom they expected to vote against them, they could not afford many absences, much less outright defections. There was a very real possibility that the cabinet’s bill would not pass. In that case, one of the other versions might have passed, or, worst of all, nothing might have passed.
Let’s pause to think about the political implications of such a failure. The Council of Grand Justices had set out a political demand, and there was a possibility that the legislature would challenge that demand. Among the alternate versions of the bill, there were some that did not include the term “marriage” and some that had larger legal differences between the version of marriage for straight couples as written in the Civil Code and the version for same-sex couples as written in this special law. The justices had left it up to the legislature to determine the exact form of the law, but they explicitly demanded that whatever framework was adopted would have to achieve “the equal protection of the freedom of marriage.” If everything had unraveled and the legislature had passed an extremely restrictive bill, it might have led to a constitutional confrontation with the court. It is entirely possible that the court would have lost this struggle. On the one hand, the referendum demonstrated that public opinion is not as favorable to marriage equality as most people had previously believed. In the Wikipedia entry on this case, one justice’s public statement in favor of marriage equality is precisely that people are more accepting now of homosexuality than they used to be. He might have to rethink that statement. On the other hand, when courts fight with elected officials, the courts usually lose. Courts have no power outside their courtroom. In one famous but probably apocryphal quote, U.S. President Andrew Jackson said, [Supreme Court Chief Justice] “Mr. Marshall has made his decision; now let him enforce it.” Although it probably would not have come to such a crisis, there is a sense in which the DPP was fighting a battle to ensure the continuing smooth operation of the rule of law.
More immediately, the DPP was fighting a battle to preserve its authority. When a leader sets out to do something, failure exposes the leader as toothless. If the Tsai government had staked its reputation on passing the bill and failed to do so, we would have seen a sheaf of declarations that Tsai was now officially a lame duck, that her party was in rebellion, that she was no longer the leader of her party, that her presidency was effectively over, and that the country would stumble along leaderless for the next year until a new president was inaugurated.
Finally, in the event that no bill had passed, we would have been plunged into administrative uncertainty. Local governments would have been left to figure out on their own how to (or even whether to) register same-sex marriages under their existing rules. The cries of “government incompetence” would have been deafening.
Politically speaking, one of the primary arguments for the DPP members to stick together was simply that failure to do so would have been worse. The party was not going to dodge the political responsibility for supporting marriage equality either way.
In the event, the DPP did not fail. Two things were critical: it slightly altered the language in the bill, and it launched a massive lobbying campaign at its legislators.
In discussions with its caucus members, it found that the hardest bit to swallow was the phrase “same-sex marriage” 同性婚姻 in Clause 2. Members proposed revisions removing that phrase and instead using wording such as “register in accordance with the directions set out in Constitutional Interpretation No. 748” and “register as same-sex spouses in accordance with the rules set out herein.” However, Premier Su insisted on including the word “marriage” in the final wording. The compromise version was to remove the phrase “same-sex marriage” from Clause 2 but to instead stipulate that two people of the same sex could form a “permanent union” and to add in Clause 4 that couples should “register their marriage” at the local household registration office. Substantively, I don’t think there is any difference between the original wording and the final version. However, the compromise version was evidently politically more palatable.
The Tsai administration then launched a massive lobbying effort. Every legislator was targeted by multiple people from the party caucus, the presidential office, the cabinet, their geographic region, and their faction leaders. Some of the people involved included premier Su and vice premier Chen Chi-mai, presidential office secretary general Chen Chu and deputy secretary general Liu Chien-hsi 劉建析, caucus leader Ke Chien-ming, Taoyuan mayor Chen Wen-tsan, and a few cabinet ministers. Basically, almost all the DPP’s heavy hitters were enlisted. (The young progressives detest Ke Chien-ming, who they think is conservative and corrupt. Perhaps, but he gets things done, including this progressive reform.) The lobbyists made a variety of appeals, ranging from cold political calculations to emotional appeals about experiences fighting the authoritarian regime in the 1970s and 1980s. Premier Su was particularly effective; one of his entreaties reportedly left a group of legislators in tears.
William Lai is glaringly absent from this narrative. Lai did post a picture of himself with a rainbow background on social media, but he doesn’t seem to have lifted a finger to pass this bill, either when he was premier or in the last week.
The DPP wasn’t sure that its efforts would pay off until Friday morning, when it was finally confident that it had secured the votes of most of its members. The caucus decided not to formally impose party discipline on the votes, but rather to take collectively responsibility without such coercion. Somehow this worked. The group of legislators from central Taiwan that had been threatening a collective walkout instead decided to collectively support the cabinet bill. Other legislators that had been wavering under pressure from religious groups, such as Chao Tien-lin 趙天麟 and Liu Chao-hao 劉櫂豪, also stepped back in line. In the end, the DPP was able to get nearly 60 votes on every clause, more than enough to ensure passage. It ended up looking like an easy win, but a lot of DPP legislators swallowed some incredibly difficult votes.
So much for the media narrative. Let’s look at the voting record. For readers familiar with the US Congress, a short background note on how voting works is useful. In the US Congress (and many other legislatures), a bill is put before the floor, amendments are processed, and then a final passage vote is taken to pass or reject the entire bill. If no amendments are offered, only one final passage vote is required to pass the entire bill. In Taiwan, there are no final passage votes. Instead, in the second reading, the bill is processed clause by clause. Each clause is voted for and passed independently. There is a third reading in which the entire bill is reviewed again, but this is not supposed to be a substantive vote. The third reading is only to catch errors or contradictions in the legal wording, and it is almost always a mere formality.
Friday’s bill had 27 clauses, so legislators had to pass 28 items: the title of the bill and 27 individual clauses. In addition, the DPP allowed votes on two other items, a vote to not consider Lin Tai-hua’s 林岱樺 (more conservative) version of Clause 8 and a vote on the NPP’s (more progressive) version of Clause 27. In each of the 30 votes, a yes vote represented a vote for the more progressive option. The Legislative Yuan hasn’t published the official record yet, so I got the votes by watching the video of the session published on the legislature’s IVOD system. There are two big video boards on which the votes are recorded, and at the end of each vote, the screen is supposed to show both of them, one after the other. Unfortunately, the camera people weren’t always paying attention, and sometimes they never bothered switching back to the second screen. I was able to get most of the votes, but in two cases my vote tally came up one yes vote short from the official tally. In both cases, it looks to me like the most obvious person to have voted yes was Jason Hsu 許毓仁, who seemed to habitually wait until the very last moment to cast his vote. The bigger problem was Clause 18, since the camera never got around to showing the second screen at all. As a result, I will only discuss 29 roll call votes. Clause 18 was a fairly routine vote; most of the later clauses had the same people voting all the same ways. I don’t think Clause 18 would have changed any of the conclusions reached in the following discussion.
The first five votes were the most important. The first vote, over the title of the bill, was the first test of how legislators would vote. It passed 68-27. Clause 1 passed 68-25. Clause 2 was the one that the DPP changed the wording of to avoid the scary “same-sex marriage” wording. It passed 75-22. Clause 3 passed 71-27. Clause 4, which included the word “marriage” was the most difficult vote for many legislators. It passed 66-27. The legislature needed about four hours to get through these first five votes. There was an extensive general discussion before the voting started, and several legislators spoke before the voting on the individual clauses. After Clause 4 passed, the legislature took a short recess. When the session resumed, deputy speaker Tsai took over the meeting, and it went through the remaining votes in less than two hours. For most of them, there was no debate at all; the staff member read the text, and the legislature voted. Almost all of Clauses 5 through 27 passed by either a 66-27 or a 67-26 vote. There was a short recess before Clause 27 so that speaker Su could preside over the passage of the bill.
The five New Power Party legislators all voted yes 29 times. They were the only legislators to do so.
The three PFP legislators voted no the first 27 times and didn’t bother to vote on the last two items.
The three independent legislators were absent.
The 68 DPP legislators had a few different patterns. The speaker and deputy speaker usually don’t participate in roll call votes; Su did not vote, but Tsai did vote (yes) on the first five items. 48 DPP legislators voted the party line all 29 times, including all 17 of the party list legislators (other than Speaker Su). Eleven DPP legislators voted the party line 28 times but missed one vote. A few of these look like bathroom breaks. For example, Chen Ou-po 陳歐珀 missed the vote on Clause 14, Wu Chi-ming 吳琪銘 missed Clause 20, and Lin Chun-hsien 林俊憲 missed Clause 17. These random missing votes don’t seem very consequential. However, many of the single missing yes votes were on the controversial Clause 4. Liu Chao-hao 劉櫂豪, Chao Tien-lin 趙天麟, Chen Ting-fei 陳亭妃, Yeh Yi-chin 葉宜津, Ho Hsin-chun 何欣純, and Chen Ying 陳瑩 all voted the DPP party line 28 times, but they were absent on Clause 4. Tsai Shi-ying 蔡適應 was absent four times, on Clauses 3, 4, 14, and 20; he voted with the party the other 25 times. I think these seven legislators were trying to both support the party line and also dodge a controversial vote. By the time they took the vote, they were certainly aware that their vote would not be decisive. Still, they did skip the single most important vote.
Five DPP legislators broke ranks and refused to show up at all. Huang Kuo-shu 黃國書, Chiang Yung-chang 江永昌, Hsu Chih-chieh 許智傑, Hung Tsung-yi 洪宗熠, and Yang Yao 楊曜 missed all the votes. Of these, Hung and Yang represent rural swing districts. If the party is going to forgive anyone for breaking discipline, they would be at the top of the list. Huang and Hsu, in green-leaning urban districts, have far weaker excuses. Finally, there is Lin Tai-hua 林岱樺, from a deep green district in Kaohsiung. Lin is perhaps the most vocal opponent of marriage equality within the DPP caucus, and she even offered her own (far more conservative) draft of the bill. Unlike the other opponents, Lin showed up and voted. She voted yes 18 times and no 11 times; she was the only legislator to vote both yes and no. I’m not sure what message she wanted to communicate with that action.
The 34 KMT legislators also had a few different patterns. 18 voted no all 29 times, and five others voted no at least 26 times but missed a few votes. Ma Wen-chun 馬文君 voted no four of the first five items (missing Clause 1) and then stopped voting altogether. Lin Li-chan 林麗蟬 and Wang Jin-pyng 王金平 missed all 29 votes. These 26 KMT legislators collectively cast zero votes in favor of marriage equality.
At the other end of the spectrum, I have Jason Hsu casting 24 yes votes, missing two, and voting to abstain three times. Recall, I think those two absent votes were probably actually yes votes. His three abstentions were on Clauses 7, 20, and 26, which seems pretty random to me. He was the only legislator to vote with the NPP on the NPP version of Clause 27.
This leaves seven KMT members who voted yes between one and three times. Wayne Chiang 蔣萬安, Ke Chih-en 柯志恩, Lee Yen-hsiu 李彥秀, Lin Yi-hua 林奕華, and Chen Yi-min 陳宜民 all skipped the first two votes, voted yes on Clauses 2 through 4, and then took the rest of the day off. Hsu Shu-hua 許淑華 voted yes on Clauses 2 and 4, and Lin Wei-chou voted yes on Clause 2. I’ve spent a lot of time trying to figure out what I should think about their action. On the one hand, they voted yes on the three most critical clauses. On the other hand, they skipped out afterwards, and pointedly did not vote for the rest of the bill. If you are a supporter of marriage equality, wouldn’t you want to be on record as supporting the entire bill? On the third hand, this was a DPP bill. The KMT was entirely cut out of the process. Once they went on record as supporting marriage equality, they also wanted to express displeasure with the DPP’s actions. Expressing both substance and partisanship is entirely reasonable. On the fourth hand, the insider narratives indicated that these seven KMT legislators’ intentions were entirely unknown to the DPP caucus leaders. Because the DPP caucus leaders were expecting support from only Jason Hsu, they felt pressure to alter the language of the bill. They didn’t make substantively serious alterations, but they considered doing so. If the KMT legislators had openly expressed support for the original language, they might have ensured that the strongest version possible passed. On the fifth hand, maybe they, like those wavering DPP legislators, were only willing to vote for the altered language. On the sixth hand, their open support might be the bulwark that prevents other KMT politicians from trying to overturn the bill in the future. On the seventh hand, perhaps if the DPP hadn’t been able to cobble together enough votes, they would have let the bill go up in flames. They pointedly sat out the first two votes, which were the proof of strength. On the eighth hand, who the hell has eight hands?
Aside: I do think this vote was extremely savvy for Wayne Chiang. I assume that, as Taiwan gets used to the idea of same-sex marriage, the yes vote will look better and better. Unlike many other legislators who have difficult elections this year, Chiang can afford to think a few years down the road. He will probably be the KMT’s Taipei mayoral candidate in 2022, and that will put him on the short list for the presidency somewhere between 2028 and 2048. He will be able to point back to this vote as an example of foresight, progressive values, and the courage to take an unpopular position.
Aside continued: In contrast, Johnny Chiang 江啟臣, one of the KMT legislators who voted no all 29 times, tried to claim that the KMT wasn’t really against marriage equality but were simply expressing anger with the DPP’s procedural tactics. Johnny Chiang is sometimes touted as a future KMT leader, but this statement was pathetic. There are some days in which you can complain about procedures, but this wasn’t one of them. The international media didn’t turn its eyes to Taiwan because they were interested in the DPP’s committee referral strategy. There are some times when a milestone decision is before you and you have to take a stand. This was one of those times. His grandchildren won’t care about procedures. They will only care if he was on the right side of history, whichever side that turns out to be.
Overall, the bill was the DPP’s bill, and the DPP provided the votes to pass it. DPP legislators had 1972 votes to cast, and they voted the party line 1749 times (88.7%). From a different perspective, there were 1875 total yes votes cast. The DPP provided 1688 of those yes votes (90.0%), the NPP provided 145 (8.6%), and the KMT only provided 42 (2.5%). In contrast, the KMT provided 662 (81.3%) of the total 814 no votes. While some media reports played up the DPP defections and the KMT yes votes to give the impression that both sides acted similarly, that simply isn’t correct. A small number of KMT legislators gave a small amount of support, and a small number of DPP legislators withheld their support. However, the main pattern was that the DPP overwhelmingly supported marriage equality, and the KMT mostly opposed it.
