The Hong Kong Court of Final Appeal on Thursday unanimously granted a same sex-couple the same right to employment and tax benefits that an opposite-sex married couple has under Hong Kong law.
In reaching its decision the court held that because Hong Kong recognizes opposite-sex couples married in other jurisdictions where there marriage is legitimized, it has to recognize a same-sex couple’s marriage under the same circumstance.
The case involved Leung Chun Kwong, a Hong Kong permanent resident, and Scott Adams, who were married in New Zealand where same-sex marriage is legal. After their marriage Leung applied for and was denied benefits by his employer the government of Hong Kong. Leung is an immigration officer within the civil service bureau and is entitled to benefits under the Civil Service Regulations (CSR). In addition, Leung also attempted to file a joint tax return with the Inland Revenue Office (IRO) and was also denied on the same grounds.
The Secretary for the Civil Service and the Director of the IRO, accepted as fact that Leung and Adams were legitimately married under New Zealand law. Both the Civil Service and the IRO claimed as a final defense, that they were pursuing the legitimate aim of protecting and not undermining the institution of marriage under Hong Kong law.
In response the Court held as follows;
The Court agreed that the protection of the institution of marriage as defined by the laws of Hong Kong is a legitimate aim. To that extent, the local legal landscape and societal circumstances are relevant to the issue of justification. However, the Court rejected the prevailing views of the community on marriage as a relevant consideration since reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights.
13. The Court also held that there was no rational connection between denying Leung employment and tax benefits and the aim of protecting or not undermining the institution of marriage in Hong Kong. First, it is difficult to see how any person will be encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits. Second, it is circular logic to justify the restriction of these benefits to opposite-sex married couples simply because heterosexual marriage is the only form of marriage recognised in Hong Kong law. It uses the fact that the couple has a different sexual orientation from others as the very justification to deny them equality, despite their analogous position. The rationality of the two decisions was further undermined by the Secretary’s own equal opportunities employment policies and the fact that the IRO does not serve the purpose of promoting marriage as defined under Hong Kong law as it also recognises polygamous marriage.
14. Nor was administrative difficulty a rational justification for the differential treatment of Leung given that Leung and Adams can produce their marriage certificate without any difficulty.
15. In the absence of a rational connection, the Court found it unnecessary to consider whether the differential treatment was proportionate to accomplishing any legitimate aim.
16. For the reasons stated above, the Court concluded that both the Secretary and the Commissioner failed to justify the differential treatment in the Benefits Decision and the Tax Decision.
The Court also held that their decision in this appeal “does not concern the question of whether same-sex couples have a right to marry under Hong Kong law.”