Contributor:
Takeharu Kato
Director
Marriage for All Japan (MFAJ)
Japan
“The Sapporo ruling has been reported by the world’s media and has attracted a high level of overseas attention. If same-sex marriage is legalized in Japan, it will have a great impact on the other Asian countries where same-sex marriage is not yet recognized.”
Takeharu Kato, Director, Marriage for All Japan (MFAJ)
On Valentine’s Day, February 14, 2019, thirteen same-sex couples across Japan filed lawsuits against the government in four district courts (Tokyo, Osaka, Nagoya, and Sapporo), claiming that the provisions of the Civil Code and Family Registration Law that do not allow same-sex marriages are unconstitutional and that the government’s failure to take necessary legislative measures is illegal under the State Compensation Law (1). In September of the same year, another same-sex couple filed a lawsuit in Fukuoka. These lawsuits in the five district courts are affiliated as “Marriage for All” Lawsuits, and MFAJ is strongly supporting them as an advocacy body.
On March 17, 2021, the Sapporo District Court made a landmark decision that the provisions of the Civil Code and the Family Registration Law, which do not allow homosexuals to enjoy the legal benefits of marriage, violate Article 14, Paragraph 1 of the Constitution (2) , which stipulates equality under the law (3 ). This is the first judicial decision in Japan on the unconstitutionality of not recognizing same-sex marriages.
Several elements of the judicial opinions are noteworthy. First of all, the court ruled that sexual orientation is a personal characteristic that cannot be chosen or changed by one’s own will, similarly as gender, race, etc. and that whether or not it is permissible to make distinctions based on such matters must be carefully judged from the perspective of “whether or not it is truly unavoidable to make those distinctions”.
In addition, the court stated that the scientific and medical basis for denying same-sex marriages, based on the premise that homosexuality is a mental disorder, has been lost. The court recognized the purpose of marriages as the protection of the joint life of husband and wife, regardless of whether they have children or not, as well as whether they have the will or ability to have children, and stated that same-sex couples can live together in the same way as opposite-sex couples who are married. The court also mentioned that to suggest that homosexual couples cannot even partially enjoy the legal benefits of marriage without the understanding or tolerance of the dominant heterosexual majority is a glaring lack of protection of homosexual persons compared to heterosexual persons. Therefore, the court concluded that the Civil Code and the Family Registration Law, which allow marriage to heterosexuals but do not allow homosexuals to have even any of the legal benefits of marriage, are a discriminatory treatment lacking a rational basis and violate Article 14, Paragraph 1 of the Constitution (4) .
The Sapporo District Court’s decision that the current situation, in which the legal rights of same-sex couples are not protected at all, violates Article 14, Paragraph 1 of the Constitution is groundbreaking, and this decision will undoubtedly become a major driving force for the legalization of same-sex marriage. However, on the day of the Sapporo ruling, Chief Cabinet Secretary Katsunobu Kato stated at a press conference, “We do not believe that the provisions of the Civil Code regarding marriage violate the Constitution.”
As one can see, even after the Sapporo ruling, the road to the legalization of same-sex marriage will not be a smooth one. In order to achieve the legalization of same-sex marriage in Japan, we need to obtain more in-depth and far-reaching judgments, either from the other four district courts, or later from the High Court or the Supreme Court, which will make the Diet’s failure to legalize same-sex marriages itself illegal. In addition, stronger lobbying to the Diet members is necessary. Above all, we need to make more efforts to increase public support for marriage equality.
The Sapporo ruling has been reported by the world’s media and has attracted a high level of overseas attention. If same-sex marriage is legalized in Japan, it will have a great impact on the other Asian countries where same-sex marriage is not yet recognized.
We are not fully satisfied with the Sapporo ruling, and we have decided to pursue our efforts until the day when everyone is free to decide whether to marry and when and whom to marry in Japan.
References:
- https://mainichi.jp/english/articles/20190214/p2a/00m/0na/006000c
- Article 14. All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
- https://www.japantimes.co.jp/news/2021/03/17/national/crime-legal/same-sex-marriage-landmark-ruling/
- For the full text of the decision, see https://www.call4.jp/file/pdf/202104/61a29f5c979833bd939d8fbd09e6a75a.pdf
