BY TOMOHIRO OSAKI, STAFF WRITER
The LGBTQ community in Japan is waiting on tenterhooks to hear an unprecedented court ruling — slated for Wednesday — on the constitutionality of the nation’s long-standing refusal to legalize same-sex marriage.
The much-anticipated ruling by the Sapporo District Court will mark the first time Japan’s judiciary has made a judgment on whether the current lack of legal recognition for same-sex marriage violates the freedom and equality principles of the Constitution. The world’s third-largest economy is the only one of the Group of Seven industrialized nations that doesn’t give legal recognition to such unions.
Here is a look at the ongoing legal battle, its implications and Japan’s attitude toward same-sex marriage.
What is the ruling about?
The ongoing legal battle, dubbed “Marriage for all Japan,” started in February 2019 when 13 same-sex couples in Tokyo, Osaka, Nagoya and Sapporo each sued the state, seeking damages for mental suffering they claim they incurred due to not being able to get married legally.
The movement broadened when, several months later, another gay couple initiated a similar lawsuit in Fukuoka.
Although the lawsuits technically demand a payment of damages by the central government — ¥1 million per plaintiff — their real purpose, lawyers say, boils down to winning acknowledgment by judges that the law’s failure to recognize same-sex marriage is unconstitutional.
Why is it that same-sex couples can’t marry in Japan?
Currently, neither the Constitution nor the law explicitly outlaws same-sex matrimony.
The post-war Constitution does define marriage as an institution premised on the “mutual consent of both sexes,” however.
But the prevailing view is that the top law’s intention when it was enacted in 1947 wasn’t to rule out same-sex marriage. Instead, it was to emancipate women from the constraints of the patriarchal society at the time, when they were often forced by family heads into a marital arrangement they didn’t desire, rather than marry of their own volition.
The emphasis, therefore, wasn’t so much on “both sexes” as it was on “mutual consent,” with the point being to clarify that a couple’s decision to marry shouldn’t be dictated by any external pressure but by their own free will and consent.
The Civil Code, too, contains no explicit ban on same-sex marriage.
But the Civil Code, as well as the family register law, mention “husbands and wives” here and there — references the state has traditionally taken to mean legal marriage is something exclusively between men and women. It is this interpretation that has long resulted in same-sex couples, including the plaintiffs in the Sapporo case, being rejected when trying to register a marriage.
What are the points of contention?
The plaintiffs argue that the fact they can’t register a marriage infringes on the freedom and equality principles guaranteed by the Constitution, calling this situation unconstitutional.
The state, meanwhile, says it is constitutional. Although the Constitution doesn’t outright ban same-sex marriage, its mention of “both sexes” suggests the national charter doesn’t take such unions into consideration, either. Therefore, the state says, it can’t be helped that same-sex couples are less protected than heterosexual couples.
The government has also said the law doesn’t prohibit gay people from marrying members of the opposite sex, thereby denying accusations by the plaintiffs that the current situation amounts to discrimination based on sexual orientation.
Additionally, the state has argued the current framework makes sense in that it fits the fundamental purpose of legal marriage that the Civil Code assumes boils down to protecting reproduction and child-rearing by husbands and wives.
The plaintiffs have hit back, adamant that marriage isn’t just about producing offspring but also about building intimate, personal relationships with lifelong partners.
How influential is the ruling going to be?
The Sapporo case — one of the five marriage equality lawsuits simultaneously in dispute across the nation — will be the first to get a verdict.
Stakes are high for this particular ruling. While each district court is granted autonomy, whatever decision the Sapporo District Court makes could have enough impact to sway other district courts, including in Tokyo, Osaka and Nagoya, toward following suit.
The five lawsuits against the state, except for one in Fukuoka, are based on almost identically worded and constructed complaints, leaving judges hard-pressed to form a conclusion vastly different from one reached by the Sapporo court, lawyers say.
But even if the current repudiation of same-sex unions is declared unconstitutional on a district-court level, their legalization is not guaranteed, let alone forthcoming. With political momentum for permitting same-sex marriage still lukewarm at best, chances are the legislature won’t feel pressured into tackling any legal reform unless a rebuke comes from higher institutions, namely the Supreme Court.
How have attitudes toward LGBTQ rights evolved in Japan?
Japan increasingly stands out for not giving legal recognition to same-sex unions, flying in the face of a trend among developed countries toward legalizing them. In 2019, Taiwan became the first Asian territory to allow same-sex marriage.
Not that there has been no momentum here. The very fact that lawsuits have been filed to question the constitutionality of same-sex marriage status head-on says something about the changing social landscape and growing influence of the LGBTQ movement in Japan.
Galvanized by the initiative municipalities such as Tokyo’s Shibuya and Setagaya wards took in 2015 in conferring quasi-legal status on same-sex couples, local governments have taken similar action in recent years toward empowering such unions.
Japan Inc. is also changing, with company after company updating their internal rules to treat the same-sex partners of their employees as spouses and make them eligible for family benefits.
Jointly run by three advocacy groups, a campaign titled “Business for Marriage Equality” counts among its supporters nearly 150 firms that proclaim their backing for same-sex marriage, including traditional Japanese behemoths like Japan Tobacco and Panasonic.
According to a survey released in 2019 by ad giant Dentsu, 78.6% of the respondents in their 20s through 50s who identified as heterosexual said they supported same-sex marriage, with the figure climbing even higher among those in their 20s, at 87.3%.
“It’s only Japan’s laws that remain unchanged,” Takeharu Kato, one of the lawyers for the Sapporo plaintiffs, told judges in October.
What obstacles do same-sex couples face in life?
Plaintiffs for the Sapporo case cite numerous hurdles and inconveniences that arise from their not being able to get married legally.
Same-sex couples are, for example, deprived of rights to inheritance after their partners’ deaths, denied joint custody of children they raise together and in many municipalities are still disqualified from moving into public housing, according to the complaint. In the case of international same-sex relationships, foreign partners — even those legally recognized as married in other countries — don’t qualify for spousal visas to enter Japan.
Couples can also face hardship in other ways, such as when they are denied hospital visits to their critically ill partners on the grounds that they are not family in the eyes of the law. Their lack of official marital status also makes some landlords balk at renting apartments to them.
Openly gay businessman and rights activist Masakazu Yanagisawa, 43, is among those for whom this unfairness in society is all-too-familiar. His recent house-hunting experience with his partner was a bitter reminder that “there aren’t so many places out there where a pair of guys can move in together,” said the current head of Prime Services Japan at Goldman Sachs, which publicly commits itself to workplace diversity and LGBTQ equality.
“There were so many cases where we would be rejected the moment we revealed we were technically not family. … They didn’t always tell us the reason why they wouldn’t rent the place to us, although in some cases we were told, flat-out, ‘no male couples,’” he said.
How is the LGBTQ community preparing for the Sapporo ruling?
Hopes are high among activists.
Compared with other district courts, the Sapporo court judges have handled the case with alacrity — hence the speediest process of all — and displayed a willingness to listen to first-hand accounts by plaintiffs and their families. At one point, Kato, one of the Sapporo case lawyers, even came out as gay in front of judges.
Among those jittery over the fate of the Sapporo ruling is Maki Muraki, an openly lesbian entrepreneur who heads Nijiiro Diversity, an LGBTQ rights advocacy group based in Osaka.
“I’m excited. If the ruling proves to be one in favor of us, it will be a beacon of hope for us. It will be a sign that Japan is changing, at last,” she said.
Yanagisawa, too, says he is holding his breath. With the Olympic Charter prohibiting discrimination based on sexual orientation, any positive outcome that boosts momentum for legalizing same-sex marriage would dovetail with the inclusive spirit of the pandemic-delayed Tokyo Games, he said.
“I think this will be a significant ruling in that it will be an indicator of whether Japan will be able to exercise a leadership role on the human rights front internationally,” he said.