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A Japanese high court ruled Wednesday that the country's lack of legal recognition for same-sex marriage violates the right to equality under the Constitution, saying the ban leads to discriminatory treatment of people based on sexual orientation.
But the Tokyo High Court upheld a lower court ruling rejecting a demand by plaintiffs for the state to pay damages, citing the lack of a decision by the Supreme Court. It became the second high court to rule that the ban is unconstitutional.
The court also ruled that the marriage ban violates the section of the Constitution that says laws concerning matters pertaining to marriage and family "shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."
Current civil law provisions "are not based on reasonable grounds" and lead to "discriminatory treatment (of people) based on their sexual orientation," according to the ruling.
Presiding Judge Sonoe Taniguchi acknowledged that recognition of a person's right to a spousal relationship with a partner should be respected as an "important legal interest" for all including those in same-sex relationships.
"The degree of social acceptance for granting (same-sex couples) the same protection as heterosexuals has heightened considerably," she said.
In dismissing the damages claim by the seven plaintiffs, Taniguchi said that since the Supreme Court has yet to rule on the issue, the court cannot find the government liable to compensate for the Diet's failure to take legislative action.
The seven plaintiffs, including same-sex couples, had demanded 1 million yen ($6,500) each from the state. They argued that civil law provisions not allowing same-sex marriage violate the right to equality under the Constitution and its guarantee of the freedom of marriage.
Article 24 of the Constitution that guarantees the freedom of marriage stipulates, "Marriage shall be based only on the mutual consent of both sexes."
Some of the plaintiffs and their supporters expressed joy after the ruling.
"The presiding judge's words flowed into my head and I realized that the judge took our arguments to heart. I am happy to be here today," said Chizuka Oe, one the plaintiffs.
Meanwhile, the government's top spokesman said the state will closely monitor developments of other similar lawsuits, adding that it also needs to take into account Diet deliberation as well as some local governments' move to recognize same-sex partnership.
The introduction of the same-sex marriage system "concerns the fundamentals of people's lives and is closely related to each person's view of the family," Chief Cabinet Secretary Yoshimasa Hayashi told a press conference.
The plaintiffs appealed after the Tokyo District Court rejected their damages claim in November 2022, while saying that the same-sex marriage ban is in a "state of unconstitutionality" -- a term used to indicate a call for the Diet to take action on the issue.
Japan remains the only Group of Seven major industrialized country that has not legalized same-sex marriage or civil unions, despite growing pressure from the LGBT community and its supporters.
Previous district rulings have varied, with the Sapporo and Nagoya courts saying that the lack of legal recognition of same-sex marriage is unconstitutional, and the Tokyo and Fukuoka courts ruling it is in a "state of unconstitutionality."
In the first high court ruling earlier this year, the Sapporo High Court said the country's lack of legal recognition of same-sex marriage is unconstitutional, upholding the lower court ruling in 2021.
Every court, however, had dismissed compensation claims.
© KYODO
25 Comments
Matt
Nearly there...Come on!!!
Yubaru
Rather surprised, and hope the positive trend continues!
wallace
Legalized same-sex marriage or civil unions.
WoodyLee
People should be FREE to choose who ever they wish to spend the rest of their lives with regardless of Gender, sexual Orientation, Faith, Skin Color, Nationality or what ever make a difference.
WoodyLee
Governments must keep their LONG Nosy Nose out of this matter forever.
piskian
Ever heard of the Pink Pound, anyone?
Homosexual couples are invariably higher earners and spenders,and allowing them to marry and have children,according to their wishes,can only boost the dilapidated economy.
Fighto!
So, you believe men and women in heterosexual relationships, intent on having children, will suddenly change plans and become gay (and abandon their plans for kids) if same-sex marriage was to be legalised?
Possibly the weirdest take I've ever read on the issue.
Anyway, as many have said before, Japan ultimately will grant same-sex marriage rights - within a decade is my guess. Each High Court ruling like this will - slowly - push the legislators to act.
Geeter Mckluskie
Good
It's about time
リッチ
Marriage is a legal contract and not a value one. Non married same sex relationships in countries not allowing them face huge hurdles on tax benefits, inheritance, medical decision making, discrimination protections, and a ton of legal issues that female male relationships enjoy. These homophobia’s said years back women couldn’t divorce and women were property to be kept in the home. Society learns from its mistakes. 70% of Japanese people already accept the idea. Legal protections now.
purple_depressed_bacon
It's progress. One step in the right direction. Hopefully, Japan will come to legalize same sex marriage in the near future.
Meiyouwenti
The presiding judge deliberately ignored the article 24 of the constitution that stipulates in unambiguous terms that the marriage should be between two sexes.
“Article 24. 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.”
Is Article 24 of the constitution now unconstitutional?
giru
I’ve yet to hear one logical argument against same-sex marriage that doesn’t fall back on religion or plain old discrimination. Well done today, and here’s to final legalisation soon.
リッチ
Both sexes fyi could argue means human. Two men or two women would also be both sexes. Last I checked in human anatomy men were a sex or gender for a better term and women were a sex. So when you put two people together it’s plural sexes. Is this not difficult to see?
Some dude
Is Article 24 of the constitution now unconstitutional?
Nope. Just bigoted and out of date.
KariHaruka
Same sex marriage should be legalised. Who's their love hurting? No one!
A same sex couple getting married has zero negative consequences on my own marriage to my wife and our family.
Ah_so
When this issue has been on JT before, so many were quick to jump in and say disingenuous things like:
'while it might be a great ideal, Article 24 refers to "both sexes" so unfortunately gay marriage won't be possible unless the Constitution changes...it's not bigoted politicians that are to blame, it's the Constitution...can't be helped...' [my recollection]
Well, looks like it the Constitution is not quite the friend that they thought.
Eastmann
pathetic
there is constitution.
japanese one.
Article 24. 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.
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.
no extra words needed.
Hawk
Just putting my name down in the 'legalise same-sex marriage' column.
Bob Fosse
What’s wrong with equality?
owzer
I don’t see how two males agreeing to marry each other satisfies this requirement.
owzer
giru
same-sex marriage cannot propagate our species.
There’s your logical argument.
Bob Fosse
What percentage of marriages can’t or don’t produce children? Do you know?
Would you support an Article of the constitution voiding their marriages if they don’t procreate?
What’s your ‘logical argument’ for those couples that couldn’t also be applied to any same sex couple?
How many people have children outside of wedlock compared to married couples? Do you know?
Marriage carries many legal benefits and implications, child bearing is not a requirement.
owzer
Bob, giru asked for a logical argument against same-sex marriage. I delivered. If you disagree, refute it.
Lord Dartmouth
A sad day.
wallace
Civil Unions would not be anti-constitutional. It would be a start.