Balaoro v Secretary for Justice [2020] 4 HKC (CFI): A recent case about religious celebration of same-sex marriage

Balaoro v Secretary for Justice

Summarised by Zhong Linyue, Roselyn (Associate)

Facts

The applicant was the founding pastor of the LGBTS Christian Church HK whose members were mainly transmen and lesbians. The Church provided the Rite of Holy Matrimony and the Rite of Holy Union to LGBT couples who wished to enter into life-long partnership. The applicant was previously arrested for having willfully celebrated a marriage while not being legally competent to do so, yet he was not charged for this arrest. A parishioner of the applicant, who was biologically female but had male gender identity, asked the applicant to perform the same-sex religious rite of the Church for him and his female partner. The applicant did not agree to the proposal due to concern of the previous arrest. The applicant’s solicitors approached the Director of Public Prosecutions (DPP) to ask for confirmation that conducting the abovementioned rites at the Church would not constitute a criminal offence and made the applicant subject to the risk of prosecution. The DPP rejected such request for confirmation.

Issue

Whether the performance of the rites of Holy Matrimony and Holy Union in the LGBTS Church between consenting same-sex adult couples would contravene s.30 of the Marriage Ordinance (Cap.181) (MO)?

Holdings and Rationale

The court dismissed the application for judicial review:

1. The civil court did not have the general function to give any prior advice or guarantee to the applicant in an application for judicial review that his conduct in the past or future would not give rise to criminal liability, except in very exceptional circumstances, such as when the ability of the particular applicant to obtain such ruling of the court before he takes the particular action which brings him the risk of prosecution is in the interests of justice.
2. It is not appropriate for the court to exercise its discretion to grant the declaratory relief sought by the applicant in this case because the performance of the Rite of Holy Matrimony or Holy Union would not result in any registrable marriage within the meaning of  s.30 of the MO, which was limited to marriage between man and woman, so as to violate the ordinance. Neither was there a need to determine a live practical question because the applicant was never prosecuted and there was no threatened prosecution against him. Even if there is a risk of criminal prosecutions for the applicant’s past or future conducts, this risk per se would actually prevent the court from making declaratory relief rather than being an exceptional circumstance.
3. The DPP was legally entitled to refuse to give confirmation of non-criminality or non-prosecution to the applicant because it was not within the function of the DPP to provide legal services or advice to private individuals on the prospect of criminal offence resulting from his past or future conduct.

 
Comments

Although this case mainly deals with the procedural weakness of the applicant’s application, it still implies the ever-existing difficulty of equal marriage rights for same-sex couples. The court expressly declined to acknowledge the legal status of same-sex marriage, as the applicant in this case sought to celebrate for his parishioners, by construing it as outside the scope of the MO. Therefore, until the present year, the pursuit of marriage equality for same-sex couples was still in face of great obstacles.