Recognition of Same Sex Marriage in High Court

Sapporo High Court decided that rules in the laws including Civil Code, which denied same sex marriage, violated the Constitution of Japan. It was the first case for a court in Japan to recognize same sex marriage as unconstitutional based on Paragraph 1 of Article 24, which had been interpreted as determining marriage only for a couple with different sexes. Lawmakers are required to make efforts for legislation to guarantee the right of sexual minorities.

There are three provisions in the constitution for discussing legitimacy of same sex marriage in the lawsuits. Article 14: All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin; Paragraph 1 of Article 24: Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis; and Paragraph 2 of Article 24: With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

The district courts in Sapporo and Nagoya decided in 2021 and 2023 that laws excluding same sex marriage was unconstitutional in light of Article 14, in terms of people’s equality under law. And four decisions of district courts found the laws unconstitutional based on Paragraph 2 of Article 24, which required laws to be established on “equality of the sexes.”

 

Determining the laws violated both Article 14 and Paragraph 2 of Article 24, Sapporo High Court decided they were also against Paragraph 1 of Article 24. The decision interpreted the provision as determining free unification between humans. Previous decisions had not denied an interpretation that the words of “both sexes” in the paragraph meant “different sexes.”

 

“Homosexual people are not only suffering from disadvantages in social system, but harmed their dignity as individuals by losing identity,” said the court. It did not find any disadvantage of recognizing same sex marriages, quoting the facts that many countries in the world approve it.

 

The court did not criticize the legislative branch as not making their efforts enough, because the unconstitutionality of laws had not clearly been built up. Recognizing various arguments over same sex marriage, the court indicated necessity of discussion over this issue. The chief judge of Sapporo High Court said that determination of same sex marriage would not mean unification of opinions or evaluations of the people.

 

However, it was a damage for the conservatives in Liberal Democratic Party, who had been upholding heterosexual marriages. It is doubtful anyway that those conservative lawmakers have simple majority in the Diet to block legislature for same sex marriage. The point is whether the lawmakers regard this issue as a matter of basic human rights for all the people.

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