Court Finds Same Sex Marriage as Pursuit of Happiness

Fukuoka High Court found the Civil Code and Family Registration Law unlawful in a lawsuit of three same-sex couples who demanded approval of their marriages. The decision made the first case that supported same sex marriage based on Article 13 of the Constitution of Japan, which stipulates freedom of pursuit of happiness. It seems like that the decision of courts in Japan to approve same sex marriage has been established.

To the plaintiffs’ argument that denial of same sex marriage violated Article 13 of the Constitution, Fukuoka High Court clearly answered. “There is no longer a reason that denies same sex marriage as a legal institution,” said the court. It was the third decision of high courts, following Sapporo High Court in March this year and Tokyo High Court in October, which decided denial of same sex marriage unconstitutional.

 

Fukuoka High Court defined a marriage as “important and fundamental institution for a human.” It also regarded a right of being protected one’s marriage by laws as “one of the substances of pursuit of happiness and indispensable for personal survival of an individual,” said the court. It found that current marriage system violates Article 14 of the Constitution that guarantees equality under the laws.

 

The decision found no difference in marriage between same-sex couple and others. “Wishes for pursuit of happiness with taking each other as partner and creating a new family cannot be different between the couple of same sex and that of man and woman,” determined the court. It also argued that institutions such as partnership system would not compensate marriage, saying that the unconstitutional state would not be eliminated by that kind of alternative system.

 

One of the discussing points is whether the Constitution defines marriage as institution between different sexes. “Marriage shall be based only on the mutual consent of both sexes,” says Sentence 1 of Article 24. The court found that the article cannot be interpreted as denying same sex marriage, based on the process of stipulation. There is a discussion that the sentence was created to prevent coercive marriage by parents or other families.

 

Sentence 2 of Article 24 requires that “laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.” As finding current system to be violating individual dignity in Article 13, the court decided that it also breached Section 2 of Article 24.

 

The decision of Sapporo in March found current marriage system unconstitutional in terms of Article 14 and Sentence 1 and 2 of Article 24, while another one in Tokyo in October was based on Article 14 and Sentence 2 of Article 24. It is epoch-making for a court to recognize unconstitutionality based on Article 13, because pursuit of happiness constitutes one of the fundamental elements of freedom, paralleled with life and liberty.

 

Chief Cabinet Secretary, Yoshimasa Hayashi, told that he would closely watch public opinion and discussion of the Diet on same sex marriage and other lawsuits. It is the Diet which needs to discuss the legal system to meet court decisions that approved same sex marriage.

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