Text: Chen Zhaoru (Professor, Department of Law, National Taiwan University) Adultery is innocent, long live marriage (Part 1): The long road from one-sided adultery to the release of 791 Why did "decriminalization of adultery" succeed? Theory of "Benefit Aggregation": When Supporting Weak Rights Meets Advantageous Interests Derrick Bell, a black constitutional scholar, once proposed the theory of "interest convergence" to explain the reason why some weak rights are supported by the powerful, because supporting such weak rights is in the interests of the dominant group and will not change the dominant group. status.
This theory can be used to explain why the justices made interpretation No. 748 : Supporting the freedom of marriage for same-sex couples is not only in the interests of the justices and Taiwan as a leader in human rights, improving Taiwan's international status, and helping the rulers save their prestige, but There is no need to promote same-sex marriage with executive and legislative power, nor does it harm the continuation of heterosexual marriage and the Wedding Photo Editing superiority of marriage. The theory of interest aggregation can also explain the birth of Interpretation No. 791 : it will not only create the image of the justices as constitutional human rights defenders (although they have to bear the cost of being scolded), but will not really harm men’s sexual rights and marriage. superior position. This theory can also help us understand why legalizing sex trafficking, abolishing adultery, and legalizing same-sex marriage is easy to gain support from liberal heterosexual men:
supporting women's sexual freedom and gay marriage rights will not overturn unequal Sexual power and marital superiority. The "constitutional" and "unconstitutional" crimes of adultery both use the "principle of proportionality" In short, Interpretation No. 791, in the name of "privacy rights", "sexual autonomy", and "equality" protection, finds that the crime of adultery/adultery excessively infringes on privacy and improperly restricts sexual autonomy, and the damage caused is greater than interests to be maintained. Although adultery/adultery damages the loyalty of marriage, it does not cause obvious public welfare, so there is no need to punish it in the Criminal Law; prosecution may not save the marriage relationship, and adulterers and adulterers in the same act may be punished because of their different identities, and the other may not be punished. Punishment and violation of equality