On Wednesday 17th March, a Japanese Court in Sapporo ruled that the government’s non-recognition of same-sex marriages is unconstitutional, in a move which puts pressure on the Diet to change its currently inactive stance on such unions.
The first of several cases regarding equal marriage in Japan, the Sapporo ruling is a huge victory for supporters of same-sex marriage in the country. Kanae Doi, the director of Human Rights Watch in Japan, called the ruling “a big step forward,” and while the ultimate decision by the Supreme Court in making the Diet (Japanese Parliament) act is still a number of years away, “today’s ruling will affect the already supportive Japanese public opinion on marriage equality, which would make it harder for the Supreme Court to neglect.” Several of the plaintiffs, who remain anonymous, also commented, with one quoted by Hokkaido Cultural Broadcasting (HCB) saying they were “in tears hearing [the judge] clearly saying it was unconstitutional. It doesn’t mean we can get married tomorrow, so I want to continue our efforts moving forward.” Japan’s constitution currently bases marriage on the “mutual consent of both sexes,” with the “equal rights of husband and wife.” The government had sought to argue that this conception makes same-sex marriages legally impossible, but the plaintiffs successfully convinced the judge that the constitution was intended only to preserve gender equality and individual respect, and therefore same-sex marriage does not violate the constitution. In her ruling, Judge Tomoko Takebe sided with the plaintiff’s claim that the government was violating Article 14 of the Constitution that ensures the right to equality, and that the government’s failure to offer “even a degree” of marital benefits to same-sex couples is “discriminatory.” Journalist and LGBTQ rights expert, Yuji Kitamaru, said that the ruling was “well-crafted and very strategic,” and had formed “one of the first legal foundations against anti-LGBTQ theories.”
The ruling is the first of several which are aimed at directly challenging the government’s “unconstitutional” position against same-sex marriage. So far, over 29 countries and territories have legalised same-sex marriage, so Japan is hardly lagging behind the curve in this respect. Of all the Asian nations, Taiwan is the only one so far to have enacted legislation in support of equal marriage, having done so in 2019. However, of the G7 top industrialised nations – made up of Canada, France, Germany, Italy, Japan, the United Kingdom and the United States – Japan is the only one which has not yet legalised such unions. While rights groups like Human Rights Watch claim large public support in favour of same-sex marriages, the reality is less discernible. Polls in the past decade have found only narrow majorities in favour, with one Dentsu poll finding that 78% of 20-59 year-olds approve.
Many gay, lesbian, bisexual and transgender people are also subject to discriminatory social attitudes in Japan; despite homosexuality being legal in the country since 1880, the LGBTQ community has largely remained invisible. Campaigns by organisations such as Marriage for All Japan have worked hard to increase their visibility over the past few years, with over 70,000 people signing their campaign to legalize same-sex marriage and numerous companies expressing their support. The current lack of recognition has been “humiliating” for couples, as they face complications with everything from taxes, adoption and visas to medical updates and making decisions on their partner’s behalf.
This ruling, while not binding the government to any current action, sets a robust precedent for the remaining cases to be heard in other district courts, as well as raising awareness of the campaign across Japan. Hopefully, this will lead to increased pressure for the Diet to recognise same-sex marriages.