COMPARATIVE LAW AND FREEDOM TO MARRY IN HONG KONG

Article 37 of Hong Kong's Basic Law (BL 37) enshrines the freedom to marry, stating: "The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law." In the pending case of Sham Tsz Kit v Secretary for Justice, the Hong Kong Court of Final Appeal will determine whether BL 37 encompasses a right to same-sex marriage. The Court of First Instance and the Court of Appeal rejected the idea that BL 37 encompasses same-sex marriage, and they relied on comparative law to support their conclusions. This essay explains that the lower courts erred in citing cases from the European Court of Human Rights (ECtHR) and United Nations Human Rights Committee (HRC) as persuasive authority. The lower courts also erred in completely ignoring the Inter-American Court of Human Rights (IACtHR) even though the IACtHR's advisory opinion on same-sex marriage is especially germane. With Sham Tsz Kit now pending before it, the Court of Final Appeal has an opportunity to correct course by drawing insights and inspiration from the IACtHR instead of the ECtHR and HRC. The IACtHR's jurisprudence supports construing BL 37 to encom-pass same-sex marriage.