Japan’s Osaka district court ruled today that the country’s lack of recognition for same-sex marriage does not violate its constitution, in a decision that disappointed activists hoping to capitalize on recent LGBTQ+ victories in Japan.
Three couples filed a lawsuit seeking 1 million yen (€7,040) per plaintiff in damages for “unjust discrimination” due to their inability to wed. According to the Japanese journalism outlet Mainichi, the plaintiffs argued that “same-sex marriage should be accepted in accordance with the Constitution that respects personal dignity.”
The court denied both claims, favouring the Japanese government’s argument that as the constitution only refers to marriage between members of opposite sexes and does not mention same-sex marriage, failing to recognize same-sex marriage does not violate the constitution.
The court did raise the concept of creating a “new system” for addressing the interests of same-sex couples but declared that there had yet to be enough public conversation in Japan about what this would involve.
“We emphasised in this case that we wanted same-sex couples to have access to the same things as regular couples,” Akiyoshi Miwa, a lawyer for the plaintiffs, told Reuters. The plaintiffs plan to appeal the decision.
Article 24 of the Japanese constitution states that “marriage shall be based solely on the mutual consent of both sexes and it shall be maintained through mutual cooperation founded upon the equal rights of husband and wife.” Nowhere in Japan may people of the same sex marry, but in some localities, couples may obtain “partnership certificates,” which help with renting property and hospital visitation rights.
Recent recognition of these partnership rights by Tokyo means more than half of those in Japan live in a location where they could enter such a legal partnership. Nonetheless, this still fails to provide vital rights for same-sex couples, such as those concerning inheritance, parental rights, tax deductions, etc.
Today’s decision from Osaka presents a departure from a 2021 decision by the Sapporo district court in Japan’s first decision regarding same-sex marriage. In the March ruling of last year, Judge Tomoko Takebe ruled that failure to recognize same-sex marriages did in fact violate the Japanese constitution, on the basis of its Article 14 guarantee of legal equality.
Another part of the plaintiffs’ argument leading to the 2021 decision cited Article 24, commonly interpreted as guaranteeing freedom of marriage. Mainichi reported that “They say it is unconstitutional for local governments to refuse to accept same-sex marriage applications by citing the use of the expression ‘husband and wife’ in the Civil Code or the Family Registry Act.”
The plaintiffs also sought one million yen each for psychological damage, as well as claiming that the Japanese government’s failure to address the issue and legalize same-sex marriage was illegal under the State Redress Act.
While Takebe ruled in the plaintiffs’ favour on their argument regarding equality under Article 14, she rejected their other claims under the constitution and the State Redress Act, as well as their financial demands.
Takebe considered the history of the Japanese constitution, understanding of homosexuality and marriage, and the provisions in question in the court case in her written decision regarding a possible violation of Article 24. She concluded that “marriage” within this context should be interpreted as opposite-sex marriage, meaning freedom to marry applies only to opposite-sex marriage, and that under Article 24, the lack of legal status for same-sex marriage was not a violation of the constitution.
In considering the arguments regarding equality, however, she found that there was no reasonable basis for Japan’s differential treatment of those wishing to marry someone of the same sex and their subsequent prevention from accessing the legal benefits of marriage. “Accordingly,” she wrote in the decision, “the Provisions, to the extent described above, violate Article 14, Paragraph 1 of the Constitution.”
After this decision, last spring and Tokyo’s passage of a bill to recognize same-sex partnerships just last Wednesday, today’s contrasting decision disappointed many. Japan is the only country out of the Group of Seven which does not have legal same-sex marriage, and a survey found a vast majority of Japanese people supported the legalization of same-sex marriage, with 65% in favour of it and only 22% in opposition.
Only one country in Asia (Taiwan) recognizes same-sex marriage, though, and Japan’s party in power, the Liberal Democratic Party, “has disclosed no plans to review the matter or propose legislation,” according to Reuters. In an opinion piece for the US-Asia Law Institute, a lawyer for plaintiffs in the Sapparo case noted that the LDP depends on conservatives for its votes, who believe in “traditional” understandings of family. Today’s ruling may therefore be indicative of the reality of Japan’s near future, and its continuing failure to recognize same-sex marriages.
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