A Japanese high court has found that current restrictions on same-sex marriage are unconstitutional, in a ruling that advocates say represents a significant, if symbolic, step forward for LGBTQ+ rights.
The Sapporo High Court on Thursday found that Japan’s civil code, which restricts legal marriage to heterosexual couples, violates two articles of the national constitution: Article 14, which prohibits discrimination based on “race, creed, sex, social status or family origin,” and Article 24, which stipulates that marriage requires “the mutual consent of both sexes.” Judge Kiyofumi Saito ruled that Article 24 can be interpreted to guarantee marriage rights regardless of the sex of either partner, Kyodo News reported. It is the first time a High Court has deemed Japan’s same-sex marriage ban, the only such prohibition still in effect among the international “Group of Seven,” to be unconstitutional.
But the ruling does not automatically invalidate the restrictions in Japan’s civil code, as High Courts do not have that authority. As the Associated Press reported, legalizing same-sex marriage in Japan will require either the revision of the current code or the passage of new law. In his ruling, Saito cleared legal ground for the Diet, Japan’s national legislature, to move forward on the issue, writing that “enacting same-sex marriage does not seem to cause disadvantages or harmful effects,” according to Reuters. He also found that “there would be no disadvantage or harm” if Japanese lawmakers passed marriage equality legislation.
But Saito also rejected the six plaintiffs’ request for ¥1 million (roughly $6,741) apiece in emotional distress damages, because support for same-sex marriage in Japan was a “recent development,” according to the newspaper Asahi Shimbun. (A Kyodo News poll last year found that 64% of the Japanese public favor same-sex marriage rights.)
Although some Japanese cities and municipalities do issue partnership certificates for same-sex couples, the rights they grant are still limited, and do not equal those afforded to straight couples. Even though the Sapporo ruling doesn’t immediately change that inequity, some of the plaintiffs nevertheless expressed satisfaction at what it represents. One told Kyodo News that they were “encouraged by the forward-thinking” tone of Saito’s ruling, expressing hope that the Diet will heed the call for legislative action. Last year, the Diet passed a law aiming to “promote understanding” of LGBTQ+ people in Japan, but that law fell short of establishing any legal reforms.
Thursday’s ruling is the latest in a series of incremental advances for LGBTQ+ rights through Japanese courts over the past several years. Last year, the Supreme Court ruled that transgender people will no longer be sterilized before being granted legal recognition as their lived gender; following that win, trans man Takakito Usui won his battle to have his gender legally changed without surgery in February.
In a statement on Thursday, Amnesty International East Asia Researcher Boram Jang heralded the decision as “groundbreaking” and applauded “the trend towards acceptance of same-sex marriage in Japan.”
“By recognizing that the government’s ban on same-sex marriage is unconstitutional, these rulings make clear that such discrimination has no place in Japanese society,” Jang wrote. “The Japanese government now needs to be proactive in moving towards the legalisation of same-sex marriage so that couples can fully enjoy the same marriage rights as their heterosexual counterparts.”
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