論司法院大法官裁決同性婚姻之正當性爭議

司法違憲審查制度雖然有著保障人權與節制政府權力的功能，而在民主憲政國家中扮演重要角色，但是卻也因為不具備直接的民主正當性，並且得以宣告立法部門通過的法律違憲或無效，因而時常必須面臨對於其「正當性」的質疑。在臺灣近年來由同性婚姻平權運動所引發的諸多熱烈討論中，大法官不意外地也成為關注焦點之一。許多反對意見認為同性婚姻爭議應由民主程序決定，並無大法官介入的空間，否則將形成司法獨裁。因此，探討大法官在臺灣近來的同性婚姻爭議中，是否真的如同反對意見所宣稱的，不具備介入並作成憲法解釋的正當性，就成為本論文主要的問題意識。而探究此問題不可忽略的重要脈絡有二：首先是同志運動的發展脈絡，早期備受壓迫與歧視的同志族群，在1990年代後展開同志運動是令其地位開始有所轉變的契機，長期努力之下，近年來在同性婚姻議題上開始有所進展，也取得許多公眾支持，但同時也面臨反對勢力的反撲，因而陷入僵局。此外，從臺灣的司法違憲審查制度之發展脈絡觀察，為了因應民主化之後快速轉型的社會環境，大法官是備受依賴，並關注社會意向持續對各種爭議謹慎作出回應，特別是和市民社會之間的互動關係，大法官藉由宣告不合時宜的法律違憲，累積足夠的聲望和資本而不致陷入抗多數困境。但是，當社會對重大爭議存在兩極化的意見並導致激烈衝突時，大法官亦須謹慎考量如何回應，以免引發正當性危機。因此，著重和其他部門之間的互動，而非由憲法法院獨攬憲法如何詮釋的憲法對話理論或許是可行的回應模式。而在臺灣的同性婚姻爭議中，則可見到大法官以更為公開的憲法法庭程序審理此議題，於所作成的釋字第748號解釋亦可發現以下特徵，包含（1）著重同性婚姻議題的發展脈絡、（2）將第一次立法形成空間保留給立法部門、（3）在解釋中保留模糊空間作為雙方陣營後續動員的基礎、以及（4）試圖和反對意見展開對話。本文認為，正是因為社會層面對於同性婚姻議題的諸多討論，並促成社會變遷，才造就憲法法院介入並從憲法觀點闡釋此議題的機會。而大法官闡述司法部門之觀點的同時，也保留立法部門和市民社會作成後續回應的對話空間，以促成憲法對話在各部門之間的持續進行。這些都顯示了大法官介入同性婚姻並作成解釋事實上是具有高度的正當性。

關鍵字

同性婚姻；司法違憲審查；正當性；市民憲政主義；憲法對話；大法官釋字第748號解釋

並列摘要

Judicial review has the functions to protect human rights and restrict the power of the government, and it plays an important role in democratic states. However, the legitimacy of judicial review is often challenged, since the justices in the Constitutional Court of Taiwan(‘the Court’) are not elected directly by people, but the Court has great power to declare laws or regulations made by legislators, who are elected by people, unconstitutional or invalid. In heated discussions of Taiwan's same-sex marriage movement, the legitimacy of the J. Y. Interpretation No. 748 (‘the Interpretation’), which is about the legality of same-sex marriage and was made by Grand Justices of the Constitutional Court of Taiwan, was in the spotlight. Lots of discourses against same-sex marriage argue that such issue should be decided through ‘democratic process’, and that the intervention of the Court, which led to judicial dictatorship, is not legitimate. As a result, the question on whether Grand Justices had the legitimacy on deciding such issue and made the Interpretation becomes the focus of this Thesis. There are two important contexts—the LGBT rights movement and the history of judicial review in Taiwan—that we can't ignore in the discussion. First is the context of LGBT rights movement in Taiwan. In the early period, LGBTs were under discrimination. Fortunately, advocacy on the promotion of LGBT rights in 1990s gradually made progress. After a long-term effort, same-sex marriage issue, which is one of the topics in the advocacy in the long period, obtains wide public support. However, advocates on anti-same-sex marriage struggled to make their voice heard. It turned out that the same-sex marriage agenda came to a deadlock. Second, the history of judicial review in Taiwan worth attention in the discussion. To respond to the rapid transition of the society after democratization, Grand Justices were often requested to solve difficult questions. They paid attention to public opinion and responded cautiously. It is worth noting that the interaction relationship between Grand Justices and civil society. By declaring out-of-date laws unconstitutional, Grand Justices are far from counter-majoritarian and have gained enough reputations. However, they still need to consider carefully on the way of exercising their power in avoidance of causing trouble on their legitimacy, especially when there are highly divided public opinions leading to conflicts in society. As a result, constitutional dialogue theory, which emphasizes on the interaction among different branches of the government rather than on the Court’s power to make decision, would be an appropriate model for discussion in the context of Taiwan, in terms of understanding the legitimacy of the Interpretation. In the case of the Interpretation, the Thesis finds that Grand Justices made the trial procedure more transparent and open while responding to the same-sex marriage issue. In addition, there are four characteristics of the discourse of the Interpretation: (1)the Court paid attention to the context of same-sex marriage issue; (2) the Court left legislators the space for policy making; (3) the ambiguous discourse of the Interpretation left space for civil society to proceed on their mobilization for advocacy; (4) the Court tried to make a dialogue with the supporters of anti-same-sex marriage campaign. This Thesis argues that, due to the heated discussions on the same-sex marriage issue and the important social change, the Court had precious opportunity to intervene the issue, engage in the dialogue, and express their view from the standpoint of the Constitution. At the same time, Grand Justices also left room for legislators and civil society to respond, and further keep the constitutional dialogue going. These all indicate that the intervention of the Grand Justices and the rendition of Interpretation are highly legitimate.