In Landmark Ruling, Court Says Japan's Ban On Same-Sex Marriage Is Unconstitutional

A Japanese court ruled on Wednesday that the government's ban on gay marriage is unconstitutional, a landmark decision that supporters hope will pave the way for marriage equality in the only G-7 nation to not fully recognize same-sex partnerships.

Article 24 of Japan's constitution defines marriage as based on the "mutual consent of both sexes," which is currently interpreted to mean it is legal only between a man and a woman.

But as The Associated Press reports, the Sapporo District Court found that banning same-sex marriages violates Article 14 of the Japanese constitution, which prohibits discrimination due to "race, creed, sex, social status or family origin." It said that because sexual orientation is not a choice, it is discriminatory not to afford marital benefits to same-sex couples.

"Legal benefits stemming from marriages should equally benefit both homosexuals and heterosexuals," the court said, according to the AP.

The six plaintiffs — two male couples and one female couple, according to the Japan Times — had asked for 1 million yen (about $9000) per person in damages, citing the pain of not being able to legally marry.

The plaintiffs' victory was partial. As the Times reports, the court said that there was no violation of Article 24 because it relates to heterosexual marriage only, and it rejected the plaintiffs' demand for government compensation.

Still, LGBTQ advocates are celebrating the first-of-its-kind ruling, which they hope will set a precedent for other marriage equality cases pending in district courts across the country.

"Until the ruling was announced, we didn't know this was what we'd get and I'm just overjoyed," said Gon Matsunaka, director of the activist group Marriage for All Japan and president of the Pride House Tokyo consortium. "Its value is absolutely measureless."

The case is one of several brought against the government by same-sex couples in a campaign demanding the right to get married, and the first to reach a verdict. A total of thirteen couples filed lawsuits on Valentine's Day 2019 in the cities of Sapporo, Tokyo, Osaka and Nagoya, with another three filing suit in Fukuoka several months later.

Their lawyers argue that the text of Japan's constitution was intended to prevent forced marriages, rather than explicitly prohibit same-sex marriage, as NPR has reported.

"This is one huge step forward in Japan," plaintiff Ai Nakajima told the BBC after Wednesday's ruling. "We are moving closer to making our dream come true."

Since 2015, certain Japanese municipalities have issued "partnership certificates" to gay and lesbian couples, which do not confer legal status equivalent to marriage but allow for shared rental agreements and hospital visitation rights. As of January, Kyodo News reports, 74 municipalities were in the practice of doing so.

But same-sex couples can't inherit their partner's assets, for example, or assume parental rights for their partner's children.

Wednesday's ruling alone will not prompt any changes in government policy. A new law would be needed to legalize same-sex marriage, and NPR's Anthony Kuhn reports that Japan's legislature is not likely to take one up. Still, advocates hope Wednesday's ruling will provide some momentum.

"It's like a dream," one plaintiff said, according to the Times. "Now the government only needs to act."

Kanako Otsuji, an opposition party member and one of Japan's few openly gay politicians, said in a tweet reported by The Guardian that she was "truly, truly happy" about the verdict, and urged the legislature to "deliberate a proposed amendment to the civil code to make same-sex marriage possible."

Reuters reports that Chief Cabinet Secretary Katsunobu Kato told a news conference the government would "carefully watch" the outcomes of the remaining court cases.

Japan is not an outlier in the region. Only one place in Asia has legalized same-sex marriage: Taiwan in 2019. Still, Japan is the only G-7 country that does not fully recognize such unions.

The Times notes that while gay sex has been legal in Japan since 1880, social stigma means many members of the LGBT community find it hard to come out even to their families.

A 2018 survey by the Dentsu Diversity Lab found that 8.9 % of respondents identified as LGBT. Of that group, 50.7% said they were "reticent" to come out to their work colleagues.

Still, some say support for same-sex marriage may be growing in Japanese society — for example, 78.4% of respondents in that same poll said they approved of it.

Calls for the legalization of same-sex marriage have also come from outside of the country. In 2020, the American Chamber of Commerce in Japan published a six-page "viewpoint" recommending Japan's government extend LGBT couples the right to marry, which it said would "remove handicaps facing companies doing business in Japan in recruiting and retaining talent and in treating the full diversity of their workforce equitably."

The recommendation also noted that Japan has no national LGBT anti-discrimination policy, something that human rights organizations are actively campaigning to change. Human Rights Watch said in January that a coalition of 116 groups had sent a letter to Japanese Prime Minister Yoshihide Suga urging him to introduce such legislation before the Tokyo Olympics are scheduled to begin this summer.

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