Civil Code Denying Same-sex Marriage Found Unconstitutional

Tokyo High Court found that current provision of the Civil Code, which denies same-sex marriage, would violate the Constitution of Japan on October 30th. The court recognized the provision as discriminative treatment of sexual preference, which would breach Article 14 of the constitution for equality under the law and Paragraph 2 of Article 24 for legislation on marriage and family based on dignity of individuals. It marked the second decision for high courts in Japan to issue a sentence which determines the provision for marriage in the Civil Code as unconstitutional.

 

Seven people filed a lawsuit, demanding compensation of 7 million yen to the government of Japan for not treating same-sex marriage as legal marriage. Tokyo District Court decided dismissed the lawsuit in 2022, arguing that legislation for marriage is a matter of discretion of the Diet, while it recognized the current situation is against Paragraph 2 of Article 24. The plaintiffs appealed to the high court.

 

The Chief Judge of Tokyo High Court, Sonoe Taniguchi, decided that a same-sex marriage should be respected as much as marriage between male and female. “It is an important legal interest for a couple to spend their life with stability and satisfaction by establishing a legal relationship as spouses with a partner for entire life,” explained Taniguchi.

 

The defendant, the government of Japan, defined a marriage as an institution in which the government legally protects a relationship between a man and a woman to bear and raise a child. It found no problem in current legal system without provision for same-sex couple which is not capable to bear a child.

 

Taniguchi dismissed that argument, saying that intention and capability to bear a child does not construct indispensable reason for a marriage. “It cannot be said that it has rational reason to decide qualification for receiving an important legal interest based on sexual preference which cannot be chosen or changed by will of a person,” said Taniguchi in the court decision.

 

The high court also recognized that there was growing social demands to approve same-sex marriage. However, it did not decide whether the Civil Code without provision for same-sex marriage would violate Paragraph 1 of Article 24, which deals with freedom of marriage.

 

Among six lawsuits in five district courts, two courts found the Civil Code denying same-sex marriage unconstitutional. The plaintiffs in the lawsuit at Tokyo High Court demanded the Diet early legislation for same-sex marriage after the decision. The legislative branch which has been controlled by conservative Liberal Democratic Party is still reluctant to make a revision for the couples sharing the same sex.

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