02-05-2025
Signs of change emerge in constitutional interpretation of same-sex marriage
As Japan celebrates 78 years this Saturday since the enforcement of its Constitution — still untouched to this day — shifting societal norms are increasingly posing a challenge to existing legal frameworks.
One issue in particular has received scrutiny due to the emergence of steady signs of change within the judiciary: the constitutional interpretation of marriage.
In a country often seen as a laggard on the rights of sexual minorities, five high courts all ruled against the ongoing ban on same-sex marriage just in the last year — a stunning reversal compared to the local courts.
In the past, courts had judged the same sex-marriage ban as either 'constitutional,' 'in a state of unconstitutionality' — one inch closer to unconstitutional — or 'unconstitutional.'
Local courts across the country — in Sapporo, Tokyo, Fukuoka, Nagoya and Osaka — had long used a constitutional clause on marriage to justify the unconstitutionality of same-sex marriage.
Clause 1 of Article 24 stipulates 'the mutual consent of both sexes' as the foundation of marriage, an institution which is expected to be maintained 'through mutual cooperation with the equal rights of husband and wife.'
Two local courts, in Sapporo and Nagoya, were the first to find incongruity between the current system and the Constitution's equality clause, epitomized by Article 14 — an article banning all discrimination based on race, religion, social status and family origin.
In March 2021, the Sapporo Local Court had judged the issue as something exceeding the discretion of parliament and framed the fact that same-sex couples are not given the means to use the institution of marriage as a discrimination 'lacking a rational basis' — thus, in contravention of Article 14.
It was the first time ever a court found the ban on same-sex marriage unconstitutional.
This verdict was initially followed by the Nagoya District Court, which denounced the ban as infringing the dignity clause in May 2023. Article 24 , Clause 2 states that individual dignity and equality between the sexes should be taken into account when legislating over issues such as the choice of spouse, property rights, domicile and marriage-related matters.
However, one month later, in June 2023, the Fukuoka District Court stressed the importance of reproduction and child-rearing and the 'generally accepted idea' that marriage is between a man and a woman.
'Even if the rational basis behind the fact that same-sex couples can't benefit from the institution of marriage must be judged with caution... that doesn't contravene Article 14,' the verdict read.
Now, almost two years later, five high courts across the country— in Sapporo , Tokyo , Fukuoka , Nagoya and Osaka — found that current regulations on same-sex marriage create substantial distinction based on sexual orientation, and thus are at odds with the clause on equality.
The high courts also seem to have reached a general consensus over the handling of the dignity clause, showing common ground where the verdicts of the district courts had varied.
Considering the legal benefits granted by marriage and its role in defining 'the personal existence of individuals in modern society,' current norms constitute a serious detriment to the well-being of same-sex couples, and thus violate the Constitution, the Osaka judges said.
While the high courts have shown different understandings over the 'both sexes' clause of Article 24, the Sapporo High Court judgment's framing of marriage as a union between two 'people' is the result of a change in the nature of marriage, said Yasuhiko Watanabe, a professor of family law at Meiji University.
'The court emphasized that what truly matters in a marriage is the mutual consent of the parties involved — not their gender or the traditional notion of 'both sexes,'" said Watanabe, who is also an expert on legal issues related to sexual orientation and gender identity.
Yasuhiko Watanabe, a professor of law at Meiji University, said the recent High Court verdicts have led to changes that took decades in other countries. |
GABRIELE NINIVAGGI
Justifying their decision, the judges in Osaka also expanded on what they called the 'emerging consensus over same-sex marriage' and the implementation of what is known as the 'partnership system' — a system implemented at a municipal level allowing same-sex couples to receive equal treatment to heterosexual couples in areas such as housing and health care, but failing to provide legal protection.
According to Marriage for All Japan, a nonprofit organization lobbying for same-sex marriage, 524 municipalities across the country had adopted the partnership system as of April, corresponding to an area covering 92% of the total population.
These verdicts have led to changes that, in European countries — often seen as forerunners on the rights of sexual minorities — took decades, Watanabe said.
'While previous judicial decisions had granted parliament broad discretion, suggesting that alternatives to marriage might be acceptable, the high courts addressed the concept of equality squarely, emphasizing it in terms of legal status and standing,' said Watanabe.
The legalization of same-sex marriage has long stood at the fringe of the political debate, despite the support of sections of the opposition and ruling coalition.
In last October's general election, 57% of candidates from all parties said they supported same-sex marriage, while 22% opposed it, a NHK poll found.
The government has long maintained the constitutionality of the current ban, arguing that the Constitution fails to address same-sex marriage.
Questioned in parliament on the topic in January, Prime Minister Shigeru Ishiba — who had expressed sympathy to the cause in the past — showed a cautious stance.
The issue doesn't seem to be a top concern for a great majority of voters. While several polls indicated a majority of the population is in favor of same-sex marriage, when asked which policies they want the government to prioritize, voters often tend to point to issues such as the economy or rising prices.
In the end, what might cause a tectonic shift in the current debate inside and outside of parliament might be a verdict from the Supreme Court.
In the last few years, the Supreme Court has made landmark decisions on issues of gender and civil rights — ordering compensation for victims of forced sterilization, for instance , or ruling against bathroom restrictions for transgender individuals .
For the Supreme Court, it will be hard to take an opposing stance to that of the high court, especially on issues of equality, pursuit of happiness or individual rights, Watanabe pointed out.
'The reason why the Supreme Court's ruling has drawn such attention is because it will require a theoretical rethinking of same-sex marriage, and what marriage and family truly mean,' Watanabe said.
'Once the Supreme Court rules something unconstitutional, at that point, parliament will have no choice but to act exactly as directed.'
