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RIGHT NOT MIGHT

Taiwan’s vote against same-sex marriage illustrates the problem with referendums

Reuters/Ann Wang
Defeated.
By Nikhil Sonnad
Published Last updated This article is more than 2 years old.

Over the weekend, Taiwanese voters were asked to answer yes or no to this question, as part of a referendum: “Do you agree that Civil Code regulations should restrict marriage to being between a man and a woman?” The “yes” votes won, in a “a bitter blow and a step backwards for human rights in Taiwan,” according to Annie Huang of Amnesty International Taiwan.

It’s a step back because in 2017, Taiwan’s high court ruled that restricting marriage to heterosexual couples was unconstitutional. More broadly, though, the result is the latest example of how referendums can be deeply undemocratic.

The high court decision did not legalize same-sex marriage; it only declared that the legislature would have to make marriage equality law within two years. That meant it was up to Taiwan’s ruling Democratic Progressive Party (DPP), which gained power in 2016, to follow through. It failed to do so.

That ineptitude provided an opportunity for groups in Taiwan opposed to marriage equality, led by conservative Christians. These groups took advantage of new rules, passed in 2017, that made it easier to hold and pass referendums. Previously in Taiwan, a referendum required signatures from 5% of the electorate in order to be placed on the ballot. That was reduced to 1.5%. And for a ballot measure to pass, it now only needs “yes” votes from 25% of the population, compared to the earlier 50%.

That is a low bar. Even though Christians make up just 5% of Taiwan’s population, they were able to collect the paltry 280,000 signatures needed to make their referendum happen. Their proposal to define marriage as “between a man and a woman” received over 7 million “yes” votes—more than a counter-referendum endorsing same-sex marriage, but far less than half of Taiwan’s over 18 million registered voters.

This liberal approach to referendums has backfired on the DPP—a left-leaning party that broadly supports LGBT rights—which originally pushed to relax the rules. When the new rules were announced, the current president, Tsai Ing-wen, called it a “historic moment” in which “people are the masters.”

But as the DPP has found out, that is far from the reality of referendums.

One problem with referendums is that they reduce highly complicated matters to a simple yes or no. The most consequential example of our time is, of course, Brexit. Because the European Union is a large, supranational entity, many British voters felt they had lost the ability to exert their political will. But to distill the nation’s entire relationship to its most important ally to a binary choice was short-sighted, and has led to the nightmare of defining what exactly Brexit is, saddening and angering just about everyone along the way.

The decision on marriage law in Taiwan reveals an even bigger problem with referendums, though: they turn politics into a popularity contest. Democracy is not just about voting, but also pluralism and the protection of minority rights. In deciding to call marriage discrimination unconstitutional, the court was acting to protect those rights for the LGBT community. Plus, given Taiwan’s law that a referendum needs only 25% of voters to say “yes,” it doesn’t even meet the standard of majority rule.

In 2017, the high court put Taiwan on the world stage as a model for other Asian nations on human rights issues. That reputation looks fragile now. Over the weekend, Tsai stepped down as party leader after the DPP suffered wider losses across the country. There is lots of blame to go around—blame Tsai and the DPP for not putting same-sex marriage into law, blame conservative groups who cannot tolerate ways of life other than their own. But also blame a political institution that puts the “will of the people” before the rights of the person.