Not Recognizing Same-Sex Marriage Ruled Unconstitutional

Jiji Press

16:32 JST, May 31, 2023

NAGOYA (Jiji Press) — The Nagoya District Court ruled Tuesday that provisions in the Civil Code and the family register law that do not recognize same-sex marriage are unconstitutional.

But the court in Nagoya, the capital of Aichi Prefecture, central Japan, turned down a claim by the plaintiffs, a same-sex couple in Aichi, for damages of ¥1 million each from the central government. The couple claimed in the lawsuit that the provisions violate the Constitution, which guarantees freedom of marriage.

Tuesday’s ruling was the fourth issued in a series of similar lawsuits filed with a total of five district courts in Japan.

So far, the provisions in question have been found unconstitutional by Sapporo District Court in northern Japan and constitutional by Osaka District Court in western Japan. Tokyo District Court has ruled that the provisions are in a state of unconstitutionality. All three courts dismissed plaintiffs’ claims of state compensation.

The plaintiffs in the Sapporo, Osaka and Tokyo cases have appealed the rulings to high courts.

In the Nagoya court, Presiding Judge Osamu Nishimura said the lack of a framework to protect same-sex couples “goes beyond the scope of the legislative discretion of the Diet.”

Lawyers for the Nagoya plaintiffs issued a statement saying that the latest ruling is “extremely significant” because it directly calls for legislative action.

The presiding judge first pointed out that the first paragraph of the Constitution’s Article 24, which guarantees freedom of marriage, does not provide for same-sex marriage, and that the provisions do not violate the paragraph.

The court then considered whether the provisions violate the second paragraph of Article 24, which stipulates that marriage and family laws shall be enacted on the basis of individual dignity and the essential equality of the sexes.

In addition to the legal effects of marriage, same-sex couples have not been able to enjoy important personal interests that are notarized as legitimate relationships under the state system, the judge said.

The judge said that those disadvantages cannot be eliminated through the creation of notarized documents of marriage contracts and other means.

“Leaving the current situation as it is lacks rationality in terms of individual dignity and goes beyond the scope of the Diet’s legislative discretion,” the judge said.

The court found that the current provisions violate the second paragraph of Article 24 “to the extent that they do not even provide a framework for granting effects suitable for protection.”