Thursday, July 18, 2019

Marco Wan on The Invention of Tradition: Same-Sex Marriage and Its Discontents in Hong Kong (Int'l J Const L)

International Journal of Constitutional Law
July 2020, Volume 18, Issue 2, pp 539-562
Abstract: In Leung Chun Kwong v. Secretary for the Civil Service, the Hong Kong Court of Final Appeal held that the government unlawfully discriminated against a gay civil servant by refusing to recognize his same-sex marriage—entered into abroad—when considering the granting of local spousal benefits and joint tax assessment. The year before, in QT v. Director of Immigration, the court had ruled against the government for denying the partner of a British lesbian a dependant visa on the basis of her sexual orientation. QT and Leung Chun Kwong are landmarks in the rapidly evolving jurisprudence on same-sex marriage in the territory. This article presents an analysis of the Hong Kong cases relating to gay rights and same-sex marriage. It contends that, even though the need to protect traditional marriage is cited as a reason against marriage equality in many jurisdictions, the claim is particularly problematic in Hong Kong, given the city’s unique marriage history. It draws on the historian Eric Hobsbawm’s notion of “the invention of tradition” to argue that the rhetoric of traditional marriage conjures up an imagined past that displaces a vast and varied set of long-standing marital practices. By exploring government reports and records pertaining to Chinese marriages in colonial Hong Kong, this article then examines these forgotten traditions and demonstrates their significance for understanding the marriage equality debate in the territory in our own time.

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