A Further Step Forward in the High Court Decision! Strong Pressure from the Court to the Diet to Achieve Marriage Equality

By June 20, 2024 Regional

Contributor: Takeharu Kato
Director,
Marriage For All Japan


“It is reasonable to assume that Article 24(1) of the Constitution includes the intention to provide for marriage as a free association between persons, and guarantees not only marriages between “both sexes”, that is, opposite -sex couples, but also same-sex couples to the same extent.”

On March 14, 2024, the Sapporo High Court ruled that the current Civil Code and Family Registration Law, which do not recognize same-sex marriages, violate Article 24 and Article 14 (1) of the Constitution.

The “Marriage for All” lawsuits, challenging the unconstitutionality of the current laws that do not recognize marriage equality, were filed in 2019 in five major cities (Tokyo, Osaka, Nagoya, Fukuoka and Sapporo) in Japan, and to date, six rulings have been handed down in five district courts. Five of the six rulings have ruled that the current laws not recognizing same-sex marriages or the absence of a system for same-sex couples to become a family is unconstitutional.

However, the previous district court decisions held that the Constitution does not guarantee same-sex marriages to the same extent as opposite-sex marriages, because Article 24 (1) stipulates that “marriage shall be solely based on the mutual consent of both sexes,” and “both sexes” has been interpreted to mean a man and a woman.

In contrast, the Sapporo High Court ruled that Article 24 of the Constitution need not be interpreted solely in terms of its wording; it is appropriate to interpret it in the context of a clearer recognition of respect for the individual.

How will the Japanese government really respond to this ruling? Unfortunately, even after this ruling, Prime Minister Kishida reportedly reiterated the government’s previous position that recognition of same-sex marriages “is not envisaged in the Constitution,” and gave a reluctant response, saying that “at the very least, the absence of a provision on same-sex marriages is not a violation of the Constitution.

In response to such reluctance on the part of the government and the Diet, the Sapporo High Court ruling unprecedentedly stated that same-sex marriage “is fundamentally a matter of personal dignity and respect for the individual, and since homosexuals are disadvantaged in their daily social lives and face a sense of loss of their own existence, it is necessary to take urgent measures to address this issue. Therefore, it is desirable that serious discussion and action be taken immediately, including the application of the opposite-sex marriage system to same-sex marriages, as a matter of urgency.” This should serve as a wake-up call to the Diet and the government for its delayed response.

As of April 1, 2024, the partnership certification system, under which local governments certify same-sex couples, has spread to 456 municipalities nationwide, covering about 85% of Japan’s population. In addition, according to a public opinion poll conducted by Asahi Shimbun newspaper in February 2023, 73% of respondents said that same-sex marriage “should be recognized,” while only 18% said that it “should not be recognized.” Furthermore, in the “Business For Marriage Equality” campaign to visualize companies that support same-sex marriages, the number of companies that declared their support for marriage equality reached 493 as of May 8, 2024.

Japanese society is ready to embrace marriage equality. While the realization of marriage equality is delayed, the dignity of same-sex couples is being undermined day by day. There is not a moment to lose. The Diet and the government should immediately begin discussions on the legalization of same-sex marriages.


About the contributor:

Takeharu Kato has been a practicing lawyer at Hokkaido Godo Law Office in Sapporo since

2004. Besides dealing with general civil cases, he is engaged in activities supporting LGBTQ community. He is a member of a legal team of “Marriage for All” lawsuit in Hokkaido and a director of Marriage For All Japan, which is a campaign organization working for the realization of marriage equality in Japan.


Share this