We have made major progress, but our goal remains distant
On Valentine's Day in 2019, thirteen same-sex couples across Japan filed lawsuits against the government in four district courts. The lawsuits claimed that the provisions of the Civil Code and Family Registration Law that do not allow same-sex marriages are unconstitutional, and sought compensation from the government for the pain caused by its failure to amend the laws.
This litigation strategy yielded its first fruits on March 17, when the Sapporo District Court ruled in a case brought by my clients that the failure to allow same-sex couples the legal benefits of marriage violates the Constitution’s promise of equality under the law. At the same time, the court rejected the plaintiffs’ claim to compensation (a rejection that we have appealed), and stopped short of declaring the inaction of the Diet in not amending the laws to be illegal. This leaves the Diet with discretion to decide when and how to amend the laws.
The Sapporo ruling was Japan’s first judicial decision on the unconstitutionality of not recognizing same-sex marriages, and it has had significant, positive social and political impact. It will undoubtedly become a major driving force for the legalization of same-sex marriage. But we remain far from achieving our goal.
In June 2019, the three opposition parties submitted to the Diet a draft amendment to the Civil Code to institutionalize same-sex marriage. But the amendment made no progress because of opposition from the ruling Liberal Democratic Party (LDP). The LDP has its base among conservatives, many of whom believe that same-sex marriage would destroy the traditional view of the family. The government has repeatedly stated in the Diet that the Constitution simply does not envision same-sex marriages and that any change requires careful consideration. In the meantime, more than 100 local governments in Japan have recognized same-sex couples in their jurisdictions as having a “relationship equivalent to marriage,” but this patchwork system of local measures does not involve any legal benefits such as inheritance or tax deduction, and is completely different from legal marriage. For this reason, the opinion that same-sex couples should be allowed to legally marry is growing stronger day by day.
Japanese courts had issued both positive and negative judgments regarding the legal protection of same-sex couples.
Prior to the Sapporo ruling, Japanese courts had issued both positive and negative judgments regarding the legal protection of same-sex couples. For example, in a lawsuit filed by a Taiwanese man who had lived with a Japanese man for about 25 years and received deportation orders, the Tokyo District Court recommended that the government review the case; as a result, in March 2019 the Taiwanese man was granted special permission to stay in Japan. And in March 2020, the Tokyo High Court ruled that a member of a same-sex couple was entitled to compensation for the partner’s affair on the grounds that they had a relationship equivalent to that of a man and a woman in marriage, and that same-sex couples are entitled to the same protections under the Civil Code as opposite-sex couples in a common-law marriage. (The court may have been influenced by the fact that the couple was officially married in the US.) The Supreme Court rejected the defendant’s appeal and this decision was finalized.
On the other hand, when the same-sex partner of a murder victim was denied survivor’s benefits from a crime victims’ benefit scheme, the Nagoya District Court upheld the denial in June 2020. The court reasoned that, at the time of the decision not to grant benefits in 2017, there was no socially accepted notion that living together with a same-sex partner was the same as a marriage relationship.
In this context, the Sapporo District Court’s ruling was groundbreaking. First of all, the court ruled that sexual orientation is a personal characteristic that cannot be chosen or changed by one’s own will, just like gender or race, and that whether it is permissible to make distinctions based on such matters must be carefully judged from the perspective of “whether or not it is truly unavoidable to make distinctions.” The court stated that the scientific and medical basis for denying same-sex marriage based on the premise that being gay is a mental disorder has been abandoned. It recognized the purpose of marriage as the protection of the joint life of the husband and wife, regardless of whether they have children or have the will or ability to have children – rejecting the conservative argument that the purpose of marriage is procreation. The failure to allow same-sex couples to enjoy even some of the legal benefits of marriage shows a glaring lack of constitutional protection for gay persons compared to heterosexual persons, the court said. Therefore, it concluded that the marriage provisions of the Civil Code and the Family Registration Law discriminate against gay persons without any rational basis, violating Article 14, paragraph 1 of the Constitution.
The Sapporo ruling boosted popular support for same-sex marriage. According to a poll conducted by the Asahi Shimbun newspaper immediately after the ruling, 65% of respondents said that same-sex marriage should be recognized, while 22% said that it should not. By comparison, in a survey conducted by the same newspaper six years ago, the responses were 41% in favor of recognition and 37% against. In particular, in this survey, 66% of those in their 60s answered that same-sex marriage should be recognized, which is believed to be the first time that more people in this age group expressed support for same-sex marriage than opposed it in a survey of this kind. Even among LDP supporters, 57% said it should be recognized, while 32% said it should not.
Furthermore, there are signs of change in the Diet. Immediately after the Sapporo ruling, the Komeito, one of the ruling parties, set up a Working Team to Study Same-Sex Marriage. In the LDP, the number of lawmakers expressing support for same-sex marriage is gradually increasing.
And yet, on the day of the Sapporo ruling, Chief Cabinet Secretary Katsunobu Kato stated at a press conference, “We do not believe that the provisions of the Civil Code regarding marriage violate the Constitution.” In addition, although the LDP took steps immediately after the Sapporo decision to enact the Law for the Promotion of LGBT Understanding, which has long been stuck in committee, passage is in jeopardy at the time of this essay’s publication due to strong opposition from conservatives in the party. The bill does not even mention same-sex marriage, and would simply declare that “discrimination on the basis of sexual orientation and gender identity is unacceptable.”
We lawyers and plaintiffs are not fully satisfied with the Sapporo ruling, and will continue our efforts until the day when everyone in Japan is free to decide whether to marry and when and whom to marry.
Clearly, even after the Sapporo ruling, the road to legalizing same-sex marriage is not a smooth one. We need to obtain more in-depth judgments from the four other district courts in the parallel cases, or later from one of Japan’s high courts or the Supreme Court, that would declare the Diet's failure to legalize same-sex marriages itself illegal. In addition, stronger lobbying of Diet members is necessary. Above all, we need to make more efforts to increase public support for marriage equality.
Twenty-eight countries and regions now recognize same-sex marriages, representing about 20% of the world's population. Japan is the only G7 country without legal protection for same-sex couples. If Japan legalizes same-sex marriages, it will have a deeply significant impact on other Asian countries such as China, South Korea, and Vietnam, where same-sex marriages are not yet recognized.
We lawyers and plaintiffs are not fully satisfied with the Sapporo ruling, and will continue our efforts until the day when everyone in Japan is free to decide whether to marry and when and whom to marry.
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Takeharu Kato, a lawyer at the Hokkaido Godo Law Office in Sapporo, represented the plaintiffs in the Sapporo same-sex marriage lawsuit. He was a visiting scholar at the U.S.-Asia Law Institute in 2016-2017.
The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.
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