Japan Court Rules Not Allowing Same Sex Marriage is Unconstitutional
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| Plaintiffs' lawyers and others gather outside the Nagoya District Court on May 30, 2023, after the court ruled that the government's failure to recognize same-sex marriage is unconstitutional. (Kyodo) |
A Japanese court on Tuesday became the country's second to rule that the lack of legal recognition of same-sex marriage is unconstitutional, in a move likely to add pressure on the government to accelerate efforts to do more to protect sexual minorities.
However, the Nagoya District Court, ruling on a lawsuit filed by a male couple in their 30s from Aichi Prefecture, dismissed their demand for the state to pay them each 1 million yen ($7,100) in compensation and stopped short of acknowledging that the legislative body neglected to take action.
Current laws in Japan do not "even provide a framework to protect the relationships of same-sex couples," violating the Constitution's Article 14, which ensures the right to equality, and Article 24, guaranteeing the freedom of marriage, the ruling said.
Plaintiffs' lawyers and others gather outside the Nagoya District Court on May 30, 2023, after the court ruled that the government's failure to recognize same-sex marriage is unconstitutional. (Kyodo)
The plaintiffs burst with joy while supporters waved rainbow flags -- a widely recognized symbol of pride in the LGBT community -- outside the court as they viewed the latest development as a step toward marriage equality in the country, often seen to be lagging behind other major industrialized nations on the issue.
The male couple filed the lawsuit in February 2019 after their attempt to register as a married couple was not accepted.
Japan's civil law and family registration law provisions are based on marriage between a man and a woman, and privileges resulting from matrimony, including inheritance rights, tax benefits and joint custody of children, are only granted to heterosexual couples.
The plaintiffs argued that the non-recognition of same-sex marriage constitutes discrimination and is banned under Article 14. They also say that Article 24 does not explicitly prohibit same-sex marriage.
The state has argued that Article 24 presupposes marriage is not between members of the same sex as it says, "Marriage shall be based only on the mutual consent of both sexes."
In handing down the ruling, Presiding Judge Osamu Nishimura said more people have become supportive of recognizing same-sex marriage, and the reasoning behind excluding same-sex couples from the legal marriage system is becoming "shaky," resulting in a situation that is "difficult to ignore."
But the court also noted that the public remains divided over the issue, and it was only in 2015 that a system to issue certificates recognizing same-sex couples as being in "relationships equivalent to marriage" was introduced by local governments in Japan for the first time.
It cannot be said that the Diet has failed to take legislative action for a long period of time, the court concluded.
A plaintiff (foreground) in a same-sex marriage case gives a press conference in Nagoya, central Japan, on May 30, 2023, after a Nagoya District Court ruling. (Kyodo)
The ruling came as the Japanese government faces pressure to do more to protect the rights of sexual minorities.
Japan, chair of the Group of Seven advanced economies this year, is the only member nation not to have instituted laws prohibiting discrimination against sexual minorities and legalizing same-sex marriage or civil unions.
Still, Japan's ruling bloc led by Prime Minister Fumio Kishida's Liberal Democratic Party submitted a bill earlier this month to parliament aimed at promoting a better understanding of members of the LGBT community.
The latest ruling, the fourth among five similar lawsuits, follows the Sapporo District Court's landmark verdict in March 2021 that said not recognizing same-sex marriage under civil and family registration laws violates Article 14.
However, the Nagoya District Court ruling is the first to acknowledge the violation of multiple constitutional articles over the issue.
As for Article 24, the Nagoya court acknowledged a violation of the section that says laws concerning matters pertaining to marriage and family "shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."
The Osaka and Tokyo district courts ruled in June and November last year, respectively, that the current legal system banning same-sex marriage is constitutional. But the Tokyo District Court also said that the lack of legal recognition of same-sex marriage is in a "state of unconstitutionality."
Plaintiffs in the Sapporo, Osaka, and Tokyo courts have all appealed the rulings after seeing their damages claims dismissed.
Over 30 countries and regions had recognized same-sex marriage as of February this year, with the Netherlands being the first to do so in 2001, according to EMA Japan, a nonprofit organization advocating sexual minority rights. In Asia, Taiwan legalized same-sex marriage in 2019.
But some countries, including the Middle East and Africa, impose punishment on individuals in same-sex relationships.
In Japan, while moves to legalize same-sex marriage have faltered, local authorities have begun issuing certificates recognizing sexual minority couples, an activity intended to help them apply for municipal housing, among other benefits.
According to the activist group Marriage For All Japan, more than 320 municipalities in the country had introduced such certificates as of mid-May.
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