Same-Sex Marriage in Japan: The recent ruling and the need for recognizing rights of same-sex couples

Recently, the Osaka District court held that the ban on same-sex marriage in Japan is not unconstitutional. The court in its judgment relied on Article 24 of the Japanese Constitution which defines marriage and requires mutual consent of both sexes. While basing the ban solely on Article 24, the court ignored other rights in Chapter III of the Japanese Constitution. Non-recognition of same-sex marriage is a violation of human rights of same-sex couples in Japan.

Marriage in Japan is governed by the Japanese Civil Code, under which marriage is defined as being a physical and spiritual union between a woman and a man. The present Civil Code was introduced in 1947 and at the time heterosexual couples were the social norm in Japan and so naturally same-sex marriage was not recognized.

Rights Being Violated

The current ban on same-sex marriage also violates Article 13 of the Constitution. Article 13 provides for the right to life, liberty, the pursuit of happiness and self-determination and gives individuals the freedom to enter into same-sex relationships. Any prohibition on individuals to marry according to their will violate the basic tenets of self-determination and thereby Article 13 of the Constitution. The Sapporo judgment did not find the ban to violate the provision of Article 13. However, on a plain reading of Article 13, it can be inferred that Article 13 provides for fundamental principles of self-determination. In other words, all individuals (including same-sex couples) should have the freedom to enter into intimate relationships with persons of their choice.

Article 14 gives the right to equality to all Japanese citizens. When same-sex couples are denied the right to marry they are denied the basic legal benefits that come from a legally certified marriage. In its landmark judgment on March 17, 2021, the Sapporo district court relied on this very reasoning to hold the ban on same-sex marriage unconstitutional. The court found that the sexual orientation of a person was equivalent to sex and race and differential treatment of such characteristics should be considered carefully. The same reasoning, it seems, has been ignored by the Osaka District Court in its judgement.

Civil Partnership System- Is it Enough?

Japan never criminalized homosexuality and there are no laws discriminating against homosexuals. Tokyo passed an ordinance in May 2022, recognizing same-sex partnerships but not marriage. 210 municipalities and eight prefectures have established a partnership certificate system, which provides same-sex couples with some limited benefits. This partnership system provides same-sex couples access to services like renting apartments, visiting hospitals and other services provided to married couples. Although these partnership certificate system helps the LGBTQ+ population of these municipalities, they fall short of providing rights that would be equal to the rights of a heterosexual couple.

The certificate system is not legally binding on private companies and they can choose not to cooperate. The certificate system is not the same as a legally recognised marriage. The couples still cannot raise a child together and even if they do raise a child together the inheritance laws will not apply to such a child. The couples do not get the spousal deduction on taxes to which heterosexual couples are entitled and a reduction on inheritance tax. The jurisdiction of these certificates is confined to municipalities only so the couple has to be living in the same municipalities but in the case of marriage the spouse can be from anywhere even out of Japan and they would still be eligible for a spouse visa which a homosexual couple would not have access to.

In addition to this, not all districts and wards have this system in place so even the limited benefit they provide is restricted to homosexual couples in these districts. In comparison to legally recognized marriage, these certificate system are a mere token service but what they do to help in accomplishing is the fact that the same-sex couples at least get recognition from the local government.

Still, there is no national legislation to recognize the rights of same-sex couples. A bill to legalise same-sex marriage was introduced in the The National Diet, but the ruling coalition refused to discuss it. The legislature is controlled by the Liberal Democratic Party (LDP) which is a conservative party. This makes it difficult to recognize the rights of same-sex couples. Similarly, before the Tokyo Olympics, an anti-discrimination bill was shelved by the LDP because there was no consensus within the party. So now what is required is for the courts to come forward.

The government in Japan can be sued and made to pay damages for inaction if a citizen suffers due to intentional or negligent acts of a public entity, under the State Redress Act - English - Japanese Law Translation. The proponents of same-sex marriage recognition have used this very section and filed suits in Sapporo, Tokyo, Nagoya, and Osaka district courts.

The Osaka ruling was the result of one of these cases.

Role of Courts in laws related to Family matters

Courts in Japan have repeatedly said that it is the Diet’s prerogative on rule-making on family systems. The Supreme Court in the Surname case took the same view that, “Rules related to marriage and family are determined by comprehensive decision-making of the Diet, taking into account the overall rules about couples and parent-child relationships in each era, and various factors in the social situation, including national traditions and people’s sentiments”. But, as can be inferred from the actions of the legislature it is clear that the legislation is not in the mood to come up with progressive legislation any time soon. And when it is necessary the Supreme Court can decide upon matters related to a family, like in the case of a special appeal against the ruling that dismissed the appeal filed against the ruling on the division of estate where it was held that the Section 900(iv) of the Civil Code violated the Article 14 of the Constitution.

Similarly, the Tokyo High Court in March 2020, held that homosexual couples should have the same rights as that heterosexual couples and allowed the petitioner to sue her seven-year female partner for adultery, a measure typically reserved for heterosexual marriages only. There are more welcoming judgments from district courts across Japan which help in establishing that there is need for active reforms in Japan.

Way Forward

This legislative inaction on the part of the Diet (national legislature) cannot continue for a long time. If the legislature does not introduce reforms soon then there have been many examples where the country’s top court has upheld same-sex marriage as constitutional and the legislature followed with the necessary amendments. For example, in the case of Windsor vs United States on June 26, 2013, the US Supreme Court ruled that the Defense of Marriage Act ("DOMA") Section 3 was unconstitutional because it restricted the definition of marriage and spouse under federal law to partnerships between a man and a woman. Subsequently, in 2015, the US Supreme Court held different state laws banning same-sex marriage unconstitutional and legalized it throughout the United States. Likewise, Taiwan’s Constitutional court (Judiciary Yuan) held same-sex marriage constitutional and further mandated enaction of a law complying with the court’s decision within two years and stated that same-sex couples would still be able to register their marriages under the current Civil Code even if the necessary legislation was yet to be passed.

There have been quite a few petitions, surveys, and recommendations for the want of this change which have led to a nationwide demand for recognition of homosexual couples. It's about time that Japan recognizes the rights of same-sex couples through the pronouncements of its courts if not through its legislature. And in this way join countries which already recognize same-sex marriages rights, including Taiwan, Malta, Costa Rica, New Zealand and South Africa, to name a few.

Moreover, the Japanese government should take into consideration that their legislative inaction has not only violated the same-sex couples’ freedom to marry, and the emotional, social, legal and economic benefits which are associated with marriage but also denied its citizens the economic prosperity that it could have gained being the world’s third-largest economy by attracting foreign firms which are sensitive about human rights. The ball is in Japan’s court now.

The authors, Chinmaya Jain and Aadarsh Gautam, are first year students at the National Law University, Delhi.