I. Facts of the Case and Purpose of the Petition
1. Petitioner One
Petitioner One is the child of Chen Ao. Chen Ao was the daughter of Li Wu, Li Wu was the son of Li Chun‑Chang, the founder of the ancestor worship guild Li Lu, with right as successor to the guild. The ancestor worship guild Li Lu had no regulations. Li Wu and Chen Ao respectively passed away in 1956 and 2012. In 2014, when other successors of the ancestor worship guild Li Lu filed for registration under the system of successors for the guild, Chen Ao was not listed as a successor. Petitioner One filed a civil action in the Kaohsiung District Court seeking confirmation of right as a successor to the ancestor worship guild Li Lu. The court dismissed the claim in Civil Judgment 107-Su-201 (2018). On appeal, the Taiwan High Court Kaohsiung Branch Civil Judgment 107-Shang-Yi-354 dismissed the appeal for lack of merit, and the judgment thereby became final and binding. In respect of Petitioner One, the aforementioned Taiwan High Court Kaohsiung Branch civil judgment shall be deemed the final judgment (hereinafter “Final Judgment One”).
Petitioner One contended that the application of Article 4, Paragraph 1, Second Sentence; Paragraph 2; Paragraph 3; and Article 5 of the Act for Ancestor Worship Guilds in Final Judgment One, which use gender as the criterion for determining the qualification as a successor, raised doubts of conflict with the guarantees under Articles 7, 14, and 15 of the Constitution, namely, the right to equality, the freedom of association, and the right to property. Therefore, in March 2020, pursuant to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, Petitioner One petitioned for an interpretation of the Constitution, requesting a declaration that the above provisions were unconstitutional, and also requested the Constitutional Court to overturn J.Y. Interpretation No. 728.
2. Petitioner Two
The ancestor worship guild Huang Tsai was established by Huang Yeh and has no regulations. Huang Yeh had no male-line descendants. His daughter, Huang Yuan, was a successor to the guild and married Hsu Tai, through whom she had Hsu Fu-Wen and others. Petitioner Two is the son of Hsu Fu-Wen. Huang Yuan and Hsu Fu-Wen respectively passed away in 1978 and 2002. The ancestor worship guild Huang Tsai had no regulations providing that only descendants with the surname Huang could be successors. Petitioner Two contended that his father, Hsu Fu‑Wen, had the status of a successor, and that he likewise qualified as a successor. However, when the other successors of the ancestor worship guild Huang Tsai processed the full membership registration of the guild in 2017, Petitioner Two was not listed as a successor. Petitioner Two thus filed a civil action with the Tainan District Court, seeking confirmation of his successor rights in the ancestor worship guild Huang Tsai. The Tainan District Court Civil Judgment 107-Su-1380 (2019) dismissed his claim. On appeal, the Taiwan High Court Tainan Branch Civil Judgment 108-Shang-Yi-87 dismissed the appeal for lack of merit. Upon further appeal, the Supreme Court Civil Judgment 109-Tai-Shang-2124 (2020) finally dismissed the appeal for lack of merit. In respect of Petitioner Two, the aforementioned Supreme Court civil judgment is regarded as the final judgment (hereinafter “Final Judgment Two”).
Petitioner Two contended that the application of Article 4, Paragraph 2 of the Act for Ancestor Worship Guilds in Final Judgment Two conflicted with the guarantee of the right to equality under Article 7 of the Constitution. Accordingly, in November 2021, pursuant to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, Petitioner Two petitioned for an interpretation of the Constitution, requesting a declaration that the above provision was unconstitutional.
II. Basis for Acceptance and Proceedings
1. Basis for Acceptance
a. Petitioner One
Petitioner One’s contention that the application of Article 4, Paragraph 1, Second Sentence of the Act Regarding Ancestor Worship Guilds, which provides that, “For the guilds that existed before the promulgation of the Act, … For those without any regulations, their successors should be the male offspring of the family (including adopted children).” (hereinafter “Disputed Provision One”), and Article 4, Paragraph 2 of the same Act, which provides that, “If there are no male-line descendants among the member successors, unmarried daughters may become successors. Married daughters’ husbands who bear their wives’ surnames or sons (by birth or adoption) who bear the maternal surnames may also be eligible as successors” (hereinafter “Disputed Provision Two”), in Final Judgment One was in conflict with the guarantee of equality under Article 7 of the Constitution, meets the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act. In July 2021, the Justices of the Judicial Yuan (the Constitutional Court) resolved to accept the petition.
As for Petitioner One’s additional contention that Article 4, Paragraph 3, and Article 5 of the Act Regarding Ancestor Worship Guilds were unconstitutional, and the request to overturn J.Y. Interpretation No. 728: it is found that Disputed Provisions One and Two were not the subject of review in J.Y. Interpretation No. 728, and therefore there is no issue of overturning that Interpretation. Furthermore, as Article 4, Paragraph 3 of the Act Regarding Ancestor Worship Guilds was not applied in Final Judgment One, Petitioner One may not rely on it as the object of a petition for an interpretation. As for Article 5 of the Act Regarding Ancestor Worship Guilds, it is difficult to conclude that a concrete allegation has been made as to how the provision conflicted with the Constitution. Accordingly, these parts of the petition shall not be entertained.
b. Petitioner Two
Petitioner Two’s contention that Disputed Provision Two was in conflict with the guarantee of equality under Article 7 of the Constitution meets the requirements set forth in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act. In December 2021, the Justices of the Judicial Yuan (the Constitutional Court) resolved to accept the petition.
c. Joint hearing
As the claims of Petitioners One and Two both involved disputes regarding the constitutionality of Disputed Provision Two, and both Disputed Provisions One and Two pertain to the constitutionality of gender-based criteria for determining membership in ancestor worship guilds, the Court therefore decided to join the cases for review.
2. Oral Argument Proceedings
The Constitutional Court Procedure Act came into effect on January 4, 2022. Under Articles 90 and 91 of the Constitutional Court Procedure Act, the Court continued reviewing whether Disputed Provisions One and Two violate the Constitution. The Court held oral argument proceedings on October 18, 2022. In addition to notifying the petitioners and the Ministry of the Interior (as the relevant authority), the Court invited the National Human Rights Commission of the Control Yuan and expert scholars to provide their opinions. The key points of the oral arguments are summarized as follows:
a. Petitioner One, roughly stated: (1) The legislative purpose of the Act Regarding Ancestor Worship Guilds is to respect traditional customs, worship ancestors, promote filial piety, and preserve clan traditions. (2) Disputed Provisions One and Two classify individuals based on gender as the criterion for differential treatment; involving immutable personal characteristics, this classification warrants strict scrutiny or heightened scrutiny. (3) These Disputed Provisions One and Two effectively prevent daughters of founders and their direct female-line descendants from becoming successors or participating in decision-making and advancing matters relating to the ancestor worship guild. This infringes upon their rights to freedom of association (guaranteed by Article 14 of the Constitution), property rights (guaranteed by Article 15), and freedom of contract (guaranteed by Article 22). Additionally, it violates the principle of equality that Article 7 of the Constitution guarantees.
b. Petitioner two, roughly stated: (1) The legislative purpose of the Act Regarding Ancestor Worship Guilds is to worship ancestors, promote filial piety, preserve clan traditions, and improve the cadastral management of the ancestor worship guild. (2) Disputed Provisions One and Two restrict the eligibility of female successors' heirs from acquiring rights of successors, which violates Article 7 of the Constitution and Article 10, Paragraph 6 of the Additional Articles of the Constitution aimed at eliminating sex discrimination. Moreover, these provisions are unrelated to the legislative purpose of the Act for Ancestor Worship Guild.
c. The Ministry of the Interior, the relevant authority, roughly stated: (1) The Act Regarding Ancestor Worship Guilds substantively standardizes customary practices through statutory law. (2) Regarding the identification of successors, the substantive criterion is whether they jointly undertake ancestral worship duties rather than a formal distinction based on gender. (3) Disputed Provisions One and Two do not pertain to the freedom of association. (4) This petition should be subject to a rational basis of judicial review. Moreover, Disputed Provisions One and Two employ a less impactful means to maintain legal stability and appropriately limit their scope of application. There is a reasonable connection between the means and the ends; thus, the provisions are constitutional.
Ⅲ. Legal Opinions Forming Paragraph 1 and 2 of the Holding
1. Constitutional Rights as Basis for Review
The Constitution of the Republic of China explicitly provides in Article 7 that all citizens of the Republic of China, regardless of gender, are equal before the law. Furthermore, lawmakers should avoid reinforcing the entrenching gender roles when shaping policies; otherwise, this would violate the constitutional intent of ensuring gender equality as protected under Article 7 (refer to Judicial Yuan Interpretation No. 807).
In Judicial Yuan Interpretation No. 728 (2015), the end of the concluding section of the reasoning, regarding Disputed Provisions One and Two which were outside the scope of the interpretation's main subject, already determined that Provision One used gender as a classification standard for identifying guild members, resulting in differential treatment. The Interpretation further stated that for ancestor worship guilds established before the implementation of the Act Regarding Ancestor Worship Guilds, when designing a system for the recognition of successors, relevant authorities should adapt to changing times by balancing the constitutional obligation under Article 10, Paragraph 6 of the Additional Articles to provide active protection for women, with the principle of legal stability. Authorities are urged to review and amend the relevant provisions, including Disputed Provisions One and Two, in response to social changes and adjustments in the functions of ancestor worship guilds. This aims to better align with the principle of gender equality and the constitutional guarantees of citizens' freedom of association, property rights, and freedom of contract (refer to the concluding section of the reasoning in Judicial Yuan Interpretation No. 728)
2. Standards of Review
When a legal norm uses gender as a classification, it constitutes a suspect classification based on immutable personal characteristics, historical or systemic stereotypes that serves as the basis for differential treatment. In such cases, this court should apply an intermediate level of scrutiny (refer to Judicial Yuan Interpretation No. 807) to ensure compliance with Article 7 of the Constitution. Specifically, the objective must serve an important public interest, and there must be a substantial relationship between the classification and the objective.
3. The Court's Judgment
a. Disputed Provisions One and Two use gender as a classification standard, already resulting in differential treatment against women (refer to the reasoning in Judicial Yuan Interpretation No. 728). Since this involves a suspect classification based on immutable historical stereotypes for an individual as the basis for differential treatment, the court should apply an intermediate level of scrutiny to assess its constitutionality. This requires that the objective serves important public interests and that there be a substantial relationship between the classification and the purpose to comply with Article 7 of the Constitution.
b. The legislative reasoning behind Article 4 of the Act for Ancestor Worship Guild states:"1. Ancestor worship guilds that existed before the implementation of the Act were mainly established before the existence of the Republic of China. The assets of such guilds are not considered the estates of natural persons, and the inheritance of the successor’s rights differs from the inheritance of estates in general. The qualifications for successors are determined based on traditional customs of ancestral succession. ... 2. Based on respecting traditional customs and non-retroactivity of laws, ... For those without any regulations or when the regulations did not specify, their successors should be the male offspring of the founders (including adopted children). If there are no male-line descendants among the successors, unmarried daughters may qualify as successors. If such a daughter marries a husband who takes her surname or has sons (by birth or adoption) who take the mother's surname, those sons may also qualify as successors." (Refer to the Legislative Yuan Gazette, Vol. 96, Issue 20, Session Records, pp. 225–226.) The purpose of Disputed Provisions One and Two, therefore, is to respect the traditional customs of ancestral succession and adhere to the principle of non-retroactivity of the laws.
However, upon review:(1) Traditional customs of ancestral succession are not legal norms of statutory rank. Before the implementation of the Act Regarding Ancestor Worship Guilds, there were no legal provisions governing the qualifications of successors in such guilds. Thus, Disputed Provisions One and Two are newly established laws that apply to legal relationships that continue to exist after the implementation of the said Act. This situation does not constitute a retroactive application of new rules and, therefore, does not involve the principle of non-retroactivity of laws (refer to Judicial Yuan Constitutional Judgment No. 18 of 2022).(2) The primary purpose of establishing an ancestor worship guild is to worship ancestors and promote filial piety (refer to Article 1 of the Act Regarding Ancestor Worship Guilds). There is no inherent difference between male and female descendants regarding the succession of ancestral worship practices. In the context of low birth rates today and the foreseeable future, enforcing such distinctions is especially detrimental to continuing ancestral worship practices. Concerning the willingness and ability of undertaking ancestral worship, regardless of their surnames or marital status, female descendants today show no significant differences from male descendants or those who adopt their mothers’ surnames. Other aspects, such as maintaining clan identity, also remain similar.Thus, for ancestor worship guilds where the qualifications of successors are not specified or regulated, continuing to allow Disputed Provisions One and Two to reject the inclusion of female descendants of founders—regardless of their gender, marital status, or whether they have adopted their mothers’ surnames—based on past customs not only lacks rational justification but also fails to adapt to contemporary society through time. This even harms the original purpose of establishing such guilds, that is to worship ancestors and carry on the ancestral worship tradition.(3) Furthermore, according to Article 7 of the Constitution and Article 10, Paragraph 6 of the Additional Articles, which state, "The State shall protect the dignity of women ... eliminate gender discrimination, and promote substantive gender equality", the State must actively eliminate gender discrimination. Naturally, it should not enact laws that recognize traditional or customary practices that are inherently gender-discriminatory.However, Disputed Provisions One and Two are state legislation aiming to preserve traditional customs that limit membership in ancestor worship guilds to male descendants. In the absence of male descendants, memberships are limited to unmarried female descendants or exclude those who have not taken the mothers’ surnames. This is obvious gender discrimination based on the classification of historical stereotypes, resulting in unjustifiable differential treatment of female descendants who have been excluded from the membership of ancestor worship guilds.Accordingly, the legislative intent of Disputed Provisions One and Two to recognize traditional gender-discriminatory customs cannot be regarded as serving the purpose of important public interests. Moreover, since Disputed Provisions One and Two are legislated based on traditionally entrenched gender-discriminatory practices, the means employed are also unjustified. These provisions clearly violate Article 7 of the Constitution.
IV. Conclusion
To summarize: The Disputed Provisions One and Two fail to include female descendants of the founders, using gender as the criterion for membership in ancestor worship guilds. Additionally, the first sentence of Disputed Provision Two further differentiates eligibility of membership based on marital status, while the second sentence considers whether the individual has taken the mother’s surname as a criterion for membership of ancestor worship guilds. These distinctions create differential treatments, which does not serve the purpose of important public interests, and the means employed are not justifiable, thus violating the constitutional guarantee of gender equality under Article 7. These female descendants of the founders of ancestor worship guilds (prioritizing those with closer degrees of kinship) who have not been included as successors may submit proof of their direct blood lineage as descendants of the founders and file applications to become successors. Upon such request, they shall be recognized as members of the guild from the date of their application, thereby enjoying the rights and assuming the responsibilities as successors. However, any rights and obligations already realized by the existing members (e.g., distributions received or fulfilled rights and obligations) shall remain unaffected.