Five Key Takeaways of【Road to Same-Sex Marriage Equality in Japan: The Constitutional Controversy in the Sapporo, Osaka and Tokyo Cases】English version
兩位律師代表的倡議團體「日本全民婚姻（Marriage for All Japan）」意識到法院和立法機構之間的相互作用，並據此制定了他們的倡導戰略。雖然法院沒有很多直接的補救措施，但這些判決在遊說工作當中是非常有力的工具。
Five Key Takeaways of【Road to Same-Sex Marriage Equality in Japan: The Constitutional Controversy in the Sapporo, Osaka and Tokyo Cases】
Our speakers, Mr. Takeharu Kato and Ms. Makiko Terahara, are both attorneys-at-law behind a series of strategic lawsuits challenging the constitutionality for banning same-sex marriage in Japan. In this webinar, they dissected three of the judgments handed down by the Sapporo District Court in March 2021, Osaka District Court in June 2022 and Tokyo District Court in November 2022, with HKU Faculty of Law’s Associate Professor Kelley Loper commenting thereafter as a discussant.
The Courts are asked to consider the following provisions in the Japanese Constitution:
· Article 14(1): All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
· Article 24(1): Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.
· Article 24(2): With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.
In short, all three rulings found that the National Diet (Japan’s legislature) is not at fault for not recognising same-sex marriage. However, Sapporo ruled that the absence of a law that give effect to same-sex marriage violates Article 14(1) and is therefore unconstitutional, while Osaka disagreed on this point. Following these two conflicting decisions, the Tokyo ruling can be viewed as an encapsulation of both, with the Court making several crucial statements in favour of same-sex marriage.
Here are five key takeaways from this webinar:
1. The Courts disagreed on the purpose of the institution of marriage.
The Sapporo Court conceptualises marriage as an institution to “protect the joint life of the couple itself”, regardless of whether or not they have children; whereas Osaka took a much more traditionalist view – the institution of marriage provides legal protection for relationships where a man and a woman live together and produce offspring. Osaka’s contention is criticized by the plaintiffs’ attorneys as “absurd” since there are many heterosexual couples who cannot, or chose not to, have children. On this, Tokyo leaned more towards Sapporo’s stance, noting the fact that men and women have borne and raised children is merely a background to the socially accepted notion that marriage is between opposite sexes, but not directly and solely a purpose of marriage.
2. The constitutional right to marriage as it currently stands is intended for heterosexual couples only, but the Tokyo ruling is open to changes in the interpretation of “marriage” in the future.
Similar to the Sapporo and Osaka rulings, the Tokyo District Court said that Article 24(1) is clearly intended for opposite sex marriages only, given the use of the words “both sexes” and “husband and wife”. However, Tokyo went one step further to denote that social values surrounding marriage and family are “subject to change”. Although they cannot conclude that there is currently a social consensus to recognise same-sex marriage in Japan, they did not preclude such possibility in the future.
3. “Individual dignity” played a huge role in Tokyo’s ruling.
Article 24(2) makes an unequivocal reference to “individual dignity”. It is understood as not merely an abstract concept but a value to be followed in practice, thereby actually limiting the discretion of the Diet when it comes to enacting laws pertaining to marriage and the family. “Dignity” is a recurring theme in all three judgments, but it is of particular significance in Tokyo’s ruling: it reasoned that the absence of a legal system for same-sex marriages is in violation of Article 24(2), because same-sex couples being recognised formally by the law as family members is “an important personal interest”, and without such recognition, it would be a “serious threat and obstacle” to their “personal survival” as it contributes to more prejudices and discrimination.
Ms. Terahara suggests that the Tokyo District Court’s conclusion may be attributable to the Court having interviewed the plaintiffs to better understand their situation. For example, the Court, having spoken to lesbian couples who are raising children of their own, saw that their familial life is no different from that of a heterosexual couple. Some also shared the disadvantages and humiliations they have faced, such as being denied knowledge of their same-sex partner’s medical condition because they are not technically a “family member”.
4. While courts does not have remedies to directly rectify the lack of recognition for same-sex marriage, these judgments have proved to be influential in pushing for legislative action.
Where Osaka made clear that the issue of same-sex marriage ought to be resolved through a democratic process at the legislature, Mr. Kato was particularly encouraged by how the Sapporo Court is aware of itself as a protector of marginalised minority groups; and believed that their ruling, coupled with the extensive media coverage on this case, has had a positive effect on lobbying Diet members. For example, the Komeito Party had since started a working group on same-sex marriage, and survey results post-Sapporo showed that same-sex marriage has received more support most notably among people in their 60s, meaning that the societal shift reached even the older generation and supporters of conservative parties.
The work of the advocacy group Ms. Terahara and Mr. Kato represents, Marriage for All Japan (MFAJ), recognises the interplay between courts and the legislature and shaped their strategies accordingly. Although Courts do not have many possible remedies at their disposal, these judgments are powerful tools for the MFAJ to utilise in their lobbying effort.
5. “Separate but equal” alternatives are unsatisfactory to the plaintiffs.
Japan has a municipal partnership system, but the level of legal and social recognition of a civil partnership is well below that of a legal marriage. The Osaka judgment suggested that the partnership system, along with contracts and wills, are sufficient to eliminate or mitigate to a considerable extent the disadvantages experienced by these couples in issues such as inheritance and taxation. Sapporo’s stance is much more satisfactory: it acknowledges “the creation and notarisation of a relationship status” as the essence of marriage, and such significance cannot be replaced by contracts or wills.
On this, MFAJ draws a hard line against a gradual, step-by-step approach to achieving marriage equality. As Ms. Terahara noted, on the basis of individual dignity, the government must accord the same legal status to same-sex couples to that of opposite-sex couples. Creating a new “separate but equal” system is merely another form of discrimination.
For more information, please refer to the video recording: https://www.equalityrights.hku.hk/post/lecture-20221213