With different jurisprudence applied, could the precedent on same-sex marriage have been changed?

Abstract

This article concerns the infamous ruling No.20/2564 of the Thai Constitutional Court, where the court refused to declare the restriction of marriage form to only of male-female binary under Section 1448 of the Civil and Commercial Code unconstitutional. Instead, the court affirmed the constitutionality of the Section and endorsed a solid affirmation of the integrity between male-female binary value and marriage. Most importantly, the ruling set a precedent that other form of marriage, such as, same-sex marriage is illegitimate and thereby justify that its constitutionality is rather impossible to recognized. This article aims to identify what influenced the court to adopt such a decision and explores an effective solution to prevent this type of ruling. The authors argue that the answers should resort to jurisprudential analysis, given that the Thai Constitutional Court itself applied various jurisprudential concepts to establish the legitimacy of the judgment. Concepts representing each jurisprudence used in this article are John Finnis’s Basic Form of Human Good, representing the natural law jurisprudence; Jeremy Bentham’s utilitarianism, representing the reductivity thesis in legal positivism; and Hans Kelsen’s Pure Theory of Law, representing the normativity thesis in legal positivism.