Marco Wan on Sexual Orientation and the Historiography of Marriage in Hong Kong (HKLJ)

"Sexual Orientation and the Historiography of Marriage in Leung Chun Kwong v Secretary for the Civil Service"
Marco Wan
Hong Kong Law Journal
Vol. 48, Part 2 of 2018, pp 605-622

Abstract:  This article critically examines the Court of Appeal’s historiography of marriage in Leung Chun Kwong v Secretary for the Civil Service. In this case, the court held that the government was right not to recognise the litigant’s overseas same sex marriage for the purposes of granting spousal benefits or allowing joint tax assessment locally. Two main assumptions underpin the court’s reasoning. First, the institution of marriage in Hong Kong is based on a history or tradition specific to the territory, such that the continuing international movement towards the recognition or legalisation of same-sex marriage is largely irrelevant to the territory. Second, prevailing societal views about marriage are coterminous with such history or tradition. This article argues that while the Court of Appeal’s judgment rightly underscores the uniqueness of Hong Kong’s marriage history, it remains wedded to an ahistorical understanding of the local marriage system. This article then presents a survey of marriage traditions that existed for most of the territory’s past and posits that a more nuanced understanding of local history actually supports, rather than undermines, Leung Chun Kwong’s case.