吳翠松

Tsui-Sung Wu

司法院釋字第748號解釋、司法積極主義、同性婚姻、法律框架、語藝、憲法法庭辯論

Judicial Yuan Interpretation No. 748, judicial activism, same-sex marriage, legal framework, rhetoric, Constitutional Court debate

本研究針對〈司法院釋字第748號解釋〉相關辯論文件進行系統性分析，旨在探討攻防雙方所採用之法律框架與語藝策略，並檢視憲法法庭最終採納之論點。
研究結果顯示，攻擊方主要運用「集體權利」與「個人權利」框架，強調弱勢族群之人權保障與婚姻平權之普遍性，並主張同性婚姻為對既有制度之「加入」而非「破壞」，此種以權利平等與制度擴充為核心之論述，較能獲得大法官之認同。相較之下，防守方採取「國家主義法律框架」，強調司法機關不應介入立法領域，並關注同性婚姻對祭祀公業、宗教團體及常民社會之影響，惟未獲充分支持；然而，其關於權力分立之主張仍部分被採納。

在語藝運用方面，攻擊方偏重情感訴求，透過被動式語言凸顯同志群體受迫處境，並頻繁以「我們」召喚支持者認同，同時運用「一樣」強調婚姻權之普遍性與基本性。相對而言，防守方則採理性論證取向，以法理與釋例為核心，廣泛援引釋憲實務、法學文獻及國際經驗與規範，以強化論述之正當性與權威性。整體而言，人權導向之法律框架結合情感動員策略，在本案中展現較高之說服效果。

On May 24, 2017, the Justices of the Judicial Yuan issued Constitutional Interpretation No. 748, declaring that the provisions of the Civil Code restricting marriage to opposite-sex couples were unconstitutional. While affirming the authority of the legislative branch, the Interpretation set a two-year deadline for legislative amendment and explicitly stipulated that, should the legislature fail to complete the revision within that period, same-sex couples would be allowed to directly register their marriages in accordance with the Family Part of the Civil Code. This Interpretation not only established a binding constitutional foundation for the institutionalization of same-sex marriage in Taiwan, but is also widely regarded as an important symbol of the country’s development in democracy, human rights, and the rule of law.
Before a formal interpretation was issued, oral arguments on the key issues presented before the Constitutional Court were an important basis for the Constitutional Court’s decision. Therefore, this study takes them as our research subject. The central question in this constitutional interpretation case is: “With respect to the marriage chapter of the Family Part of the Civil Code, does the failure to allow two persons of the same sex, for the purpose of managing a shared life, to form a permanent union characterized by intimacy and exclusivity, violate the intent of Article 22 of the Constitution, which guarantees freedom of marriage, and Article 7, which guarantees the right to equality?”
Through the presentation of arguments, cross-examinations, and responses to the Justices’ inquiries by both parties in court, the questions were fully developed through real-time confrontation and public reasoning. In addition to the courtroom proceedings, given the highly controversial nature of the issue, the Constitutional Court not only conducted oral arguments in accordance with ordinary procedures, but also livestreamed the proceedings via digital platforms such as YouTube and Facebook, thereby extending the adjudicative process into a publicly visible communicative sphere.
This case accordingly was not merely an internal process of professional legal reasoning within the judiciary; rather, through real-time media dissemination, it was transformed into a highly public space of discourse. In this context, the arguments advanced by both sides were directed simultaneously at constitutional adjudicators and the general public, jointly participating in the construction of social meaning and the contestation of legitimacy surrounding the issue of same-sex marriage.
In terms of analytical framework, this study integrates Johnson’s concepts of constructive and deconstructive arguments and framing perspectives, supplemented by Leachman’s theory of legal framing - namely, the three main types of “legal framing”: collective rights framing, individual rights framing, and nationalistic legal framing. Through this framework, the study systematically examines the following. How did both proponents and opponents employ different legal frames and rhetorical strategies to construct their arguments? During cross-examination, what representative issues emerged in the adversarial exchanges? Finally, how did the reasoning of Constitutional Interpretation No. 748 incorporate and respond to the arguments of both sides?
In terms of methodology, this study employs a mixed-methods approach combining qualitative and quantitative analyses. Qualitative analysis focuses on identifying the constructive and deconstructive arguments of both sides by organizing debate briefs and issue statements, comparing their claims, and distilling key issues and core concepts. It also analyzes the major points of contention in cross-examination and their extensions. In addition, the study conducts a close, paragraph-by-paragraph reading of the Court’s reasoning, comparing it with both sides’ arguments in order to examine how the Court responded to and selected among competing frames.
Quantitative analysis centers on corpus-based framing statistics using a computer-assisted approach. Corpus analysis software is utilized to conduct word segmentation, frequency counts, and keyword significance analysis. Key Word in Context (KWIC) analysis is further used to capture contextual meanings.
The findings show that the proponents primarily employed collective rights and individual rights frames, emphasizing the protection of marginalized groups and the universality of marriage equality. They argued that same-sex marriage represents an “addition” to, rather than a “disruption” of, existing institutions. This rights-based and expansion-oriented framing was more likely done to gain acceptance from the Justices. In contrast, the opponents adopted a legal-statist frame, stressing that the judiciary should not intervene in the legislative domain and highlighting the potential impact of same-sex marriage on ancestral rites organizations, religious groups, and broader society. Although these arguments were not fully supported, their emphasis on separation of powers was partially acknowledged.
In terms of rhetorical strategies, the proponents relied more on emotional appeals, using passive constructions to highlight the oppressed situation of LGBTQ individuals, frequently invoking “we” to foster identification, and employing terms such as “the same” to stress the universality and fundamental nature of marriage rights. By contrast, the opponents adopted a more rational and legalistic approach, grounding their arguments in legal doctrine and precedents and extensively citing constitutional interpretations, legal scholarship, international experience, and human rights norms to enhance legitimacy and authority. Overall, rights-oriented legal framing combined with emotional mobilization proved more persuasive in this case.
The findings further indicate that although the collective rights frame was supported within the judicial context, its effectiveness was limited in everyday social discourse. In contrast, narratives grounded in traditional values tended to resonate more strongly with the general public, suggesting a clear divergence in framing effects across different social fields. Linguistic effects arise from the combinatory relationships among words rather than from any single lexical item, emphasizing the highly dynamic and context-dependent nature of discourse meaning. In other words, the meaning of a frame must be understood within specific socio-cultural contexts. Without taking such social and cultural conditions into account, it is difficult to fully grasp the persuasive power and practical impact of framing.