Statement Requesting Immediate Legislation of Same-sex Marriage Following the Judgments of the Tokyo High Court and the Fukuoka High Court
In a case where the constitutionality of the legal non-recognition of same-sex marriage was at issue, the Tokyo High Court, on October 30, 2024, held that “being able to form a legal relationship as a spouse with the person whom one has freely chosen to be one's companion in life serves as a foundation for a stable and fulfilling social life, and constitutes an important legal interest closely connected with an individual’s personal being.” The court further stated that this legal interest should be fully respected not only for heterosexual couples but also for same-sex couples. It then held that the current law’s failure to recognize same-sex marriage violated Article 14, Paragraph 1 and Article 24, Paragraph 2 of the Constitution as it constitutes legal discrimination based on sexual orientation without reasonable grounds.
The Fukuoka High Court, on December 13, 2024, held that because marriage is an important and fundamental activity for human beings, and Article 13 of the Constitution recognized “the right to be protected by a legal system regarding the formation and the maintenance of marriage” as the right to the pursuit of happiness, this right was essential for an individual’s personal existence and constitutes a concrete right that is eligible for judicial remedies. The Court also held that both heterosexual couples and same-sex couples equally possess this right, and the current law’s failure to legalize same-sex marriage violated Article 13 of the Constitution because it infringed “the right to the pursuit of happiness of those who choose a same-sex partner as a life partner.” In addition, the Court held that the current law’s failure to legalize same-sex marriage violated Article 14 of the Constitution, and pointed out that “unless same-sex couples are granted access to the same legal marriage system as heterosexual couples, the violation of Article 14 of the Constitution cannot be resolved.” Furthermore, the Court found that the current law violated Article 24, Paragraph 2 of the Constitution, which provides legislation regarding marriage should be established based on the dignity of individuals.
In regard to the current law’s failure to legalize same-sex marriage, it has already been ruled unconstitutional in multiple judgments. However, we can evaluate the aforementioned judgments by the Tokyo High Court and the Fukuoka High Court as rulings that called on the legislature to grant same-sex couples the right to form a legal relationship as a spouse and access to the legal marriage system. Especially, it was groundbreaking that the Fukuoka High Court explicitly held that the right to be protected by the legal system regarding marriage is guaranteed as the right to the pursuit of happiness under Article 13 of the Constitution, and constitutes a concrete right that is eligible for judicial remedies. In addition, it is commendable that the court explicitly stated that the Constitution requires same-sex couples to be included in the same legal system of marriage as heterosexual couples.
Since the publication of“
Opinion on Marriage between Parties of the Same Sex” on July 18, 2019, the Japan Federation of Bar Associations (the “JFBA”) has repeatedly requested the legalization of same-sex marriage. Following the aforementioned judgments by the Tokyo High Court and the Fukuoka High Court, which explicitly pointed out that the current marriage system is unconstitutional, the JFBA once again, calls on the Japanese government to legislate same-sex marriage immediately.
January 15, 2025
Reiko Fuchigami
President, Japan Federation of Bar Associations