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Balaoro v Secretary for Justice  4 HKC (CFI): A recent case about religious celebration of same-sex marriage
Summarised by Zhong Linyue, Roselyn (Associate)
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.
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:
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.