Statement Again Calling for Amending of the Legislation to Allow All Couples to Marry Regardless of Their Gender
In recent months, various district courts throughout the country have rendered judgments in their respective cases challenging the constitutionality of not allowing marriage between parties of the same sex by law, and have ruled such marriage prohibition to be unconstitutional.
In its judgment issued on May 30, 2023, the Nagoya District Court ruled that the government has not even afforded same-sex couples with a framework under which their relationship can be notarized and given an appropriate legal effect to ensure its protection and, to that extent, a lack of provisions recognizing same-sex marriage in the Civil Code and the Family Register Act constitutes a violation of Article 24, Paragraph 2 as well as Article 14, Paragraph 1 of the Constitution. In addition, in its judgment issued on June 8, 2023, the Fukuoka District Court also ruled that the provisions that do not afford same-sex couples any of the legal benefits enjoyed by married couples and do not provide a means to form a legally recognized family with spouses of their choice are in violation of Article 24, Paragraph 2 of the Constitution, which requires laws to be enacted from the standpoint of individual dignity.
These judgments were handed down following the judgments rendered by: (i) the Sapporo District Court on March 17, 2021, which states that, although the legislative branch of the government possesses broad discretion over legislation regarding marriage, a provision that provides an opportunity to use a system of marriage for only heterosexual persons, and not for homosexual persons for even a partial legal effect of marriage, constituted a deviation of the legislative discretion, and, to that extent, this provision violated Article 14, Paragraph 1 of the Constitution; and (ii) the Tokyo District Court on November 30, 2022, which states that the lack of legislation to allow homosexual persons to form a family with their partners has been a serious threat and obstacle to the personal survival of homosexual persons, and there were no reasonable grounds for the lack of such legislation in light of respecting individual dignity, and this therefore violated Article 24, Paragraph 2 of the Constitution.
Having received petitions for human rights relief from 445 individuals whose access to marriage was denied for being a same-sex couple, the Japan Federation of Bar Associations (the “JFBA”) compiled its “Opinion on Marriage between Parties of the Same Sex” dated July 18, 2019. The freedom of marriage as the right to self-determination is recognized under Article 13 of the Constitution, and such recognition is grounded in the fact that marriage has a value deeply related to personal survival. Same-sex marriage, like heterosexual marriage, possesses such value, and the lack of recognition of same-sex marriage violates the freedom of marriage under Article 13 of the Constitution. Furthermore, sexual orientation is not a choice that can be changed by one’s will, and it has been a persistent ground of discrimination throughout history. Whether there are adequate grounds for treating people differently based on sexual orientation should be determined by the same strict standards as those used against discrimination based on race, faith or gender, and no such grounds exist for treating people differently based on their sexual orientation. From this point of view, the lack of legal recognition of same-sex marriage violates the principle of equality under Article 14 of the Constitution. In order to remedy such a serious human rights violation, the JFBA has called for the government to recognize same-sex marriage and immediately amend the related legislation.
The JFBA commends the recent judgments rendered by the district courts in Sapporo, Tokyo, Nagoya and Fukuoka on the ground that they recognize the unconstitutionality of the lack of provisions in the legislation providing a legal means for same-sex couples to enjoy some of the legal effects of marriage, as well as the lack of a legal framework under which same-sex couples can form a family or framework where their relationship can be notarized through a national system.
However, it must be said that these judgments are problematic on the ground that they leave open the possibility of establishing a separate system to recognize same-sex marriage with a different set of legal effects from those for heterosexual marriage, although the judgments do not themselves indicate the constitutionality of such a hypothetical system. Giving same-sex marriage lesser legal effects than those provided for heterosexual marriage is unacceptable and goes against the principle of equality under Article 14 of the Constitution as it would allow same-sex marriage to be subject to detriments without justifiable grounds. Even if same-sex marriage is recognized and given the same legal effects as heterosexual marriage but under a different system, this would still violate the principle of equality as it would be sending a message that same-sex couples are inferior to heterosexual couples.
The continuation of the human rights violations suffered by same-sex couples due to the lack of legislation to recognize same-sex marriage cannot be overlooked, and the only way to resolve the situation is to amend the related legislation to recognize same-sex marriage.
For these reasons, the JFBA repeats its call for the government to immediately amend the legislation to allow all couples to marry under the same marriage system, regardless of their gender.
June 30, 2023
President of Japan Federation of Bar Associations