On same-sex marriage, court should use ‘unconstitutional’ with caution

The Yomiuri Shimbun

13:20 JST, March 20, 2021

Whether or not to allow same-sex couples to marry is fundamental to the nature of the family. As there is no consensus in society, the recent court decision declaring unconstitutional the provisions of the Civil Code and another law that do not allow same-sex marriage is questionable.

The Sapporo District Court has ruled in a lawsuit filed by three same-sex couples in Hokkaido against the government. The couples were seeking compensation, claiming that the refusal to recognize same-sex marriage violates the freedom of marriage and the principle of equality guaranteed by the Constitution. This is the first judicial decision of its kind, but there are similar lawsuits pending in four other district courts nationwide.

While the ruling dismissed the plaintiffs’ claim for compensation, it also said, “It constitutes unreasonable discrimination that homosexuals cannot enjoy any of the legal benefits arising from marriage.” The argument is that the situation is a violation of Article 14 of the Constitution, which stipulates equality under the law.

Marriage provides a variety of legal benefits, including spousal inheritance rights, tax incentives and joint custody of children. The court apparently viewed it as unreasonable that same-sex couples do not get any of these benefits at all.

However, it is difficult to understand the thinking behind the ruling that led to calling the situation “unconstitutional.”

Article 24 of the Constitution stipulates, “Marriage shall be based only on the mutual consent of both sexes.” The court ruling acknowledged that this stipulation refers to heterosexual marriage. Based on this stipulation, it is not surprising that the current Civil Code and Family Registration Law do not contain provisions on same-sex marriage.

Isn’t it a stretch of interpretation to view that these laws’ nonrecognition of same-sex marriage violates Article 14 of the Constitution while acknowledging it does not violate Article 24?

The plaintiffs’ side said it plans to appeal the ruling to a high court to prompt the government to soon establish legislation. From now on, attention must be paid to proceedings in the high court and the rulings of the remaining four district courts.

A growing number of local governments have introduced “partnership systems” by which they publicly recognize same-sex couples.

The systems allow local governments to issue certificates to the couples, stating that they have a relationship similar to that of married couples and making it possible, among other things, to give consent when an ill partner undergoes surgery. It was first introduced in 2015 in Shibuya Ward, Tokyo, and now 78 municipalities, including Sapporo and Osaka, have introduced such systems.

Some companies have begun to offer the same benefits and services to same-sex couples as to heterosexual couples. Isn’t it important to expand such steps first?

It is said that 29 countries and regions around the world have laws in place to recognize same-sex marriage. In Japan, survey results show that many of the younger generation have a positive view of same-sex marriage.

The broad consensus of society is essential for the legal recognition of same-sex marriage. It should be discussed carefully based on social conditions, including tradition and public sentiment, while taking into account the changing times.

— The original Japanese article appeared in The Yomiuri Shimbun on March 20, 2021.