Ruling Advances Cause of Same-Sex Marriage in Japan

The Yomiuri Shimbun

20:00 JST, June 9, 2023

The Fukuoka District Court took into account the serious disadvantages that same-sex couples face from not having their relationships legally recognized in its ruling that the current situation — in which same-sex couples are not allowed to marry and legally establish families — was in a “state of unconstitutionality.”

However, the court dismissed the plaintiffs’ request for compensation.

In his ruling Thursday, presiding Judge Hiroyuki Ueda said the situation in which the nation’s Civil Code and other laws did not allow same-sex couples any of the benefits of marriage was “in a state that violates the Constitution in the context of individual dignity.”

This was the fifth ruling handed down in similar lawsuits that were filed in five district courts around Japan in 2019.

One district court ruled that the current situation in which same-sex marriage was not legally permitted is constitutional. Two courts ruled that the situation is unconstitutional. And two courts — including Fukuoka — have now ruled it to be in a “state of unconstitutionality.”

The lawsuit in the Fukuoka case was filed by three same-sex couples living in Fukuoka and Kumamoto cities.

The three main points of contention in this case were whether provisions in the Civil Code and Family Registration Law that do not recognize same-sex marriage violated Paragraph 1 of the Constitution’s Article 24, which states, “Marriage shall be based only on the mutual consent of both sexes”; Paragraph 1 of Article 14, which guarantees all people are “equal under the law”; and Paragraph 2 of Article 24, which states that with regard to “matters pertaining to marriage and the family,” laws shall be enacted “from the standpoint of individual dignity.”

Thursday’s ruling deemed that on the first point, the paragraph indicated that marriage was between members of the opposite sex, and did not include same-sex marriage. On the second point, the judge pointed out that the “commonly accepted idea” that marriage was between a man and a woman had not been lost. The judge ruled that in regard to both of these points, the law was “constitutional.”

But on the third point of contention, the judge pointed out that the social attitudes of respect for and protection of a marriage, in which a person selects a partner to spend their life with and have a legally recognized family, are growing stronger. The judge concluded, given that same-sex couples suffer severe disadvantages because they are unable to gain any of the privileges of marriage pertaining to property and inheritance, and that public understanding of same-sex marriage has grown, the current situation was in a “state of unconstitutionality.”

The judge even added that the Diet “should start” taking steps to rectify this situation.

In the earlier rulings handed down in these cases, the Sapporo District Court ruled the current situation violated Paragraph 1 of Article 14; the Osaka District Court ruled it did not violate the nation’s supreme law; the Tokyo District Court ruled that the current situation was in an unconstitutional state in light of Paragraph 2 of Article 24; and the Nagoya District Court decided it violated that paragraph and also Paragraph 1 of Article 14.

The six plaintiffs in the Fukuoka lawsuit had demanded compensation of ¥1 million each from the central government, but the court rejected the damages claims.

District courts split

The fact that five district courts have been split in their rulings indicates that the judiciary has been pressed into making difficult decisions.

This was the first time a number of lawsuits questioning the unconstitutionality of same-sex couples being unable to legally marry was launched across the nation. In these lawsuits, same-sex couples claimed, among other things, that Paragraph 1 of Article 24, which states that marriage “shall be based only on the mutual consent of both sexes,” did not aim to “exclude” same-sex marriage.

However, all five district courts ruled that, based on their interpretation of the wording “both sexes” and for other reasons, marriage was assumed to be “between a man and a woman.” The current situation in which same-sex couples cannot marry did not contradict this provision, and was therefore ruled as being constitutional.

Even so, the Tokyo and Fukuoka local courts focused on the second paragraph of Article 24. From the standpoint that marriage is “making a family,” these courts were drawn to the conclusion that the current situation was in a state of unconstitutionality because a “legal system in which a same-sex couple can become a family doesn’t exist.”

A state of unconstitutionality is defined as a situation in which the spirit of the Constitution is being violated, but the period of time needed to rectify this has not yet passed.

The Tokyo and Fukuoka courts decided not to categorize the current situation as “unconstitutional” because this time has not run out. By contrast, the Nagoya District Court went so far as to say the situation had been “neglected” and therefore was “unconstitutional.”