Same-Sex Marriage Lawsuit: High Court’s Ruling of Unconstitutionality Difficult to Understand

Editorial

14:59 JST, November 2, 2024

Whether to allow same-sex couples to marry is a matter that concerns the very foundation of the family system and is an issue that requires broad discussions of society. A conclusion on same-sex marriage should not be drawn based on legal debates, such as on constitutional interpretation.

The Tokyo High Court has handed down a ruling in an appeal case in which a Tokyo same-sex couple and others sought damages from the state, claiming that the provisions of the Civil Code and the Family Registration Law, which do not allow same-sex marriage, are unconstitutional.

Although the court did not grant compensation, it stated that the current legislation, including the Civil Code, “legally discriminates against people based on their sexual orientation.” It then ruled that this was in violation of Article 14, which stipulates equality under the law, and another article of the Constitution.

When a man and a woman get married, they are entitled to such legal benefits as inheritance rights and preferential tax treatment. The court ruled that it is unfair that same-sex couples are not entitled to these benefits.

Sexual orientation cannot be changed by one’s own will. A couple must not be discriminated against based on the fact that they are the same sex, and they should be free to live together. However, even so, it cannot be helped but to have uncomfortable sentiments about the latest high court ruling.

Article 24 of the Constitution states, “Marriage shall be based only on the mutual consent of both sexes.” It is clear that this refers to opposite-sex marriage between a man and a woman.

The institution of marriage was created based on the idea of men and women living together and raising children. When the Constitution was established, there was no discussion at all about whether to allow same-sex marriage. Therefore, it can be said that it is natural that there are no provisions about same-sex marriage in the Civil Code or the Family Registration Law.

The Universal Declaration of Human Rights also clearly states that “men and women” have the right to marry.

However, while acknowledging that the Constitution does not envisage same-sex marriage, the high court concluded that the lack of provisions about same-sex marriage in the Civil Code and other laws are unconstitutional. Why would a situation not stipulated in the Constitution be in violation of the top law? It doesn’t make sense.

The rulings in same-sex marriage lawsuits at district and high courts nationwide have been divided between “constitutional,” “in a state of unconstitutionality” and “unconstitutional.”

If it is thought to be unreasonable that the Constitution does not envisage the issue of same-sex marriage, then the logical thing to do would be to advocate for a constitutional revision to allow same-sex marriage.

The recent high court ruling argued that “social acceptance is increasing” based on the results of recent public opinion polls, which show that the majority of people are in favor of same-sex marriage.

It is true that there has been an increase in the number of local governments and companies that have introduced partnership systems that publicly recognize same-sex couples and allow them to take the same holidays and receive the same benefits as married couples. However, there are diverse ways of thinking about the family system, and these differ depending on the generation.

The institutionalization of same-sex marriage is a matter for legislation. It is necessary to deliberate on this issue from various perspectives during such occasions as Diet discussions.

(From The Yomiuri Shimbun, Nov. 2, 2024)