The Courts, Public Opinion, and the Constitutional Protection of Same-Sex Couple Rights in Hong Kong

Abstract

In Leung Chun Kwong v Secretary for the Civil Service and Another (Leung), the Hong Kong Court of Appeal relied partly on public opinion data when upholding the constitutionality of the Civil Service’s denial of spousal benefits to same-sex couples. In doing so, the Court applied a questionable methodology developed in an earlier, similar decision.1 It reasoned that certain rights and benefits are “core “and “unique to marriage” and, as such, policies supporting these rights could be “ring-fenced” and shielded from judicial scrutiny. When establishing which rights and benefits fall within this category, the Court paid particular attention to Hong Kong’s social context, citing public opinion data about marriage as evidence of lack of societal consensus. This paper queries the relevance of public opinion when courts adjudicate human rights cases generally and when they evaluate justifications for distinctions on the grounds of sexual orientation in particular. To be sure, public opinion data can helpfully contribute to important policy discussions in this area. For example, surveys that measure views about human rights over time can highlight any lack of awareness and need for more effective rights education strategies. The paper contends, however, that such data should not be used to support the exclusion of minorities, such as LGBTI people, from access to rights on the basis of equality. The paper will also reflect on the dangers of courts’ potential misuse of public opinion data with reference to recent surveys conducted by the University of Hong Kong and others.