For the first time in Japan, the Sapporo District Court ruled that the existing law which fails to recognize same-sex marriage violates Article 14 of the Constitution that ensures the right to equality.
Despite the fact that people’s sexual orientation varies depending on the individual, same-sex couples are being mistreated. The ruling is a groundbreaking judgement that respects the human rights of such people.
Japan’s Civil Code and Family Register Act presuppose that a marriage is between a man and a woman, and same-sex couples cannot apply to register their marriage.
The ruling pointed out that sexual orientation, like race, cannot be selected or changed by one’s own will, and that it lacks rational grounds to not allow same-sex marriage. The court also said marriage gives heterosexual couples legal status and rights, but the lack of such means for same-sex couples is discriminatory.
The lawsuit also revolved around the interpretation of marriage in Article 24 of the Constitution that stipulates “marriage shall be based only on the mutual consent of both sexes.” The ruling pointed out that it was a provision for heterosexual marriage, but made it clear that it did not deny legal protection for same-sex couples.
Japan is also seeing a change in social awareness about same-sex marriage.
According to a survey conducted in 2019 by an organization aiming to realize same-sex marriage, more than 70% of respondents were in favor of legalizing same-sex marriage. An increasing number of companies are offering in-house benefits to same-sex couples.
Last year, the Tokyo High Court ruled that common-law marriages can be established between individuals of the same sex, and that their rights are legally protected.
It can be said that the Sapporo District Court’s ruling is in line with the times.
“Partnership” programs, in which local governments officially acknowledge relationships between same-sex couples, is spreading across Japan. It was first introduced by Tokyo’s Shibuya Ward in 2015, and 78 local governments have implemented the scheme as of March 2021.
Though they are not legally binding, the programs are used when same-sex couples move into new residences, apply for health insurance or when their partners become hospitalized, among other occasions.
However, the effects of such a system alone are limited. Same-sex couples cannot be legal inheritors of their partners and cannot have joint custody. They also face disadvantages in taxation and social security.
The Japanese government has indicated that same-sex marriage “is not envisioned by the Constitution and requires extremely careful consideration.”
Twenty-eight countries and regions around the world now recognize same-sex marriage. The government should take the latest ruling seriously and embark on the establishment of a legal system to protect the rights of such couples.