Constitutional Interpretation No. 728 Exposes the Grand Justices' Blind Spot on Gender

Grand Justices' Constitutional Interpretation No. 728, expressed in plain terms, addresses the issue of ancestral worship guild branch member rights being restricted to males only, which constitutes suspected gender discrimination. If a charter already exists, it falls under "freedom of contract," which the state cannot regulate (Paragraph 1, Article 4 of the Act for Ancestor Worship Guild). What can be regulated (the latter part of Paragraph 1, Paragraph 2, and Paragraph 3 of Article 4 of the Act for Ancestor Worship Guild) is that "relevant authorities" should "keep pace with the times" and "timely review and amend" the rules, which is not the Grand Justices' concern.

The Grand Justices should certainly not be considered fools, yet they have constitutionalized laws suspected of gender discrimination. To make matters worse, after pointing out the gender-discriminatory laws, they shifted the responsibility onto other authorities. Delivering such an interpretation is truly shocking and incomprehensible, and it warrants a closer examination.

Women Making Things Difficult for Women

Grand Justice Chen Be-yue, a biological female, submitted a partially concurring and partially dissenting opinion, yet she was the most conservative. It appears that women can, at times, be the least friendly toward women? Grand Justice Chen concurred with the majority opinion, arguing that as long as an ancestral estate has a charter, it constitutes freedom of contract. Even if the content is patriarchal and favors men over women, it does not violate the right to equality under Article 7 of the Constitution. Furthermore, she opposed the Grand Justices accepting this case, arguing that doing so violated the principle of judicial passivity.

Whether the case should have been accepted is open to debate. After all, judicial review in the United States, for instance, allows for the direct review of individual cases without circumlocution or having to attach oneself to a specific abstract law. What is more surprising is Grand Justice Chen's argument that "surname" is the basis for distinguishing branch member rights. She argued that unmarried women and women in matrilocal marriages retain branch member rights precisely because they retain their surnames. From this, she inferred that because branch member rights are distinguished by "surname," there is no issue of "gender" discrimination.

In reality, such an argument is dangerous. Allowing unmarried women to enjoy rights while married women do not is discrimination against married women. Moreover, men do not lose their rights simply by getting married; overall, this constitutes discrimination against women. Furthermore, in the established binary classification of "marriage-out (嫁) / marriage-in (娶)," a woman in a matrilocal marriage is treated as the "man" who "marries-in (娶)." Safeguarding those who "marry-in" while ignoring those who "marry-out" serves precisely to reinforce male/female gender hegemony.

Just as death row inmates are not necessarily opposed to the death penalty, female Grand Justices are not necessarily particularly sensitive to gender hegemony. Hegemony involves the hierarchy of power within it, not simply gender.

Unawareness of Discrimination Internalized by Both Genders

Grand Justice Su Yeong-chin's concurring opinion reinforced and defended the rationale of the majority opinion. He maintained that the judicial branch ought to strictly observe its "boundaries," and when adopting active standards where it is not easy to confirm whether a law is unconstitutional, it must revert to passive standards.

Consequently, the Grand Justices could only appeal to "other political branches" to make a more active response to gender issues. The Grand Justices were "justifiably retreating." Yet, placed within Taiwan's historical and temporal context, the public's expectations of the Grand Justices likely extend beyond this. Whether this constitutes strictly observing boundaries or passive timidity, history will surely render a verdict.

Grand Justice Tom Chi-tsung focused on the constitutional interpretation theory of "insufficient protection," showing clearly no inclination to engage deeply with gender issues. Although Grand Justice Huang Mao-jung submitted a dissenting opinion, he actually agreed with the conclusion of the majority opinion, differing only in his reasoning. He was engrossed in resolving issues of succession and property, remaining vague on the question of whether gender discrimination existed.

Grand Justice Ch'en Hsin-min compared ancestral estates to religious organizations, willing to grant them the maximum scope of autonomy. Implied in his words was that even if women were subjected to discriminatory treatment, it seemed a price he was willing to pay. He even invoked the grand words of Friedrich Carl von Savigny, exalting the spirit of the early pioneers who came to Taiwan, eloquently praising honest and wholesome Chinese culture, and placing customs, beliefs, and customary law high above statutory law. Although his prose was brilliant and his writing flowed like lotus blossoms, it inevitably brings to mind India and its venerated caste system. One wonders whether the exact same theory could be used to justify arbitrary sexual assault offenses?

Dissenting Opinions Worth Cherishing

The dissenting opinions by Grand Justices Li Chen-shan and Lo Chang-fa were resounding and served as a near-complete critique of the majority opinion's utter lack of gender consciousness, making them well worth reading. The courage to undertake shaping a more progressive constitutional profile embodies the public's expectation of Grand Justices who protect human rights and bravely fight to defend the spirit of the Constitution.

In particular, Grand Justice Yeh Pai-hsiu was likewise able to stand at the elevated perspective required for constitutional interpretation. He resolutely maintained that the nature of ancestral estate charters cannot be mentioned in the same breath as general private freedom of contract, thereby showcasing the height and breadth of a Grand Justice.

Even more worth mentioning is his argument that infringement and protection are two sides of the same coin. If state laws are unable to actively protect women's rights, it effectively constitutes an infringement upon women's rights, creating differential treatment. Furthermore, he argued that legal provisions should not be fragmented and isolated; if the entire Act for Ancestor Worship Guild is interpreted comprehensively, one can conclude that the legislature indeed based its actions on traditional cultural prejudices and stereotypes, with the entire statute intentionally discriminating against women.

What remains is this: when confronting cultural traditions that discriminate against women, will the Grand Justices simply throw up their hands in helplessness, sigh in lamentation, and even cite sophisticated doctrines and the words of renowned legal scholars to run interference for them? Or will they bravely challenge tradition and uphold the spirit and ideals of the rule of law?

In the end, this is merely a matter of choosing between ideologies and values—that is, the subtle gender consciousness nestled within the heart of each Grand Justice. Judging by Interpretation No. 728, the outlook is far from optimistic; it completely exposes the Grand Justices' blind spot on gender.