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It is evident that the current Constitution does not envisage same-sex marriage. How to support same-sex couples should be considered separately from the interpretation of the Constitution.
Eight people, including same-sex couples, filed a lawsuit seeking compensation from the central government, claiming that provisions of laws such as the Civil Code that do not allow same-sex marriage violate the Constitution, which guarantees freedom of marriage and equality under the law. In the lawsuit, the Tokyo District Court handed down a ruling dismissing the plaintiffs’ damages claim.
The Constitution states, “Marriage shall be based only on the mutual consent of both sexes.” The court found that this provision indicates that marriage is between opposite-sex couples and concluded that the existing Civil Code and Family Registration Law are not contrary to the Constitution.
Same-sex marriage was not even discussed when the Constitution was established. The court ruling of constitutionality is only natural, so there seems no room for debate over the interpretation of the provision.
On the other hand, the ruling also said that the lack of a legal system that allows same-sex couples to become a family constituted “a state of unconstitutionality.” The court appears to have taken the claims of the same-sex couples into consideration, but as long as the Constitution does not envisage same-sex marriage, this interpretation may not be convincing.
In Japan, it is a common value that a man and a woman become husband and wife and lead a family life together. With opinions varying on the legal system related to family-related matters, it is hard to say that a social consensus has been built on same-sex marriage.
Judicial decisions have been divided in similar lawsuits filed with other district courts.
In March last year, the Sapporo District Court ruled that the existing laws that do not allow same-sex couples to marry are unconstitutional as they go against the principle of equality under the law. The Osaka District Court, however, handed down a ruling of constitutionality in June this year. Both rulings have been appealed, and attention needs to be paid to future court decisions on this matter.
People must not suffer discrimination and prejudice simply because they are part of a same-sex couple. It is important to consider social initiatives to support same-sex couples from a standpoint other than constitutional interpretation.
The number of local governments that have introduced partnership systems, under which government entities publicly recognize same-sex couples, has increased to more than 200. The systems are intended to issue a certificate recognizing the relationship of a same-sex couple as similar to that of a married couple and to make it possible for one partner in a same-sex couple to give consent when the other partner undergoes surgery, for example.
Companies have increasingly offered same-sex couples benefits and services similar to those for married couples. It is essential that such social support be improved further.
The latest ruling also called on the Diet to discuss legal arrangements concerning same-sex couples. There are many issues to be discussed carefully, such as the legal status and welfare of minors when same-sex couples raise their children.
