In 2019, the first lawsuits in Japan were filed in five district courts directly challenging the constitutional violation of not recognizing same-sex marriages. On Wednesday, the Sapporo District Court ruled that the current law, which does not recognize same-sex marriage, is unconstitutional because it violates the principle of equality stipulated in Article 14 of the Japanese constitution.
This is the first ruling on same-sex marriage in Japan — and it is groundbreaking.
The decision is the culmination of years of work by many individuals. Our organization, Marriage for All Japan, was founded in January 2019 to achieve marriage equality. Our members include lawyers such as myself, as well as others. Almost all of us voluntarily work without compensation, and most of the members have been working for the protection of LGBTQ rights for more than 10 years.
The courts are one of several venues in which we have been pushing for change. We also lobby members of the Diet and work to raise public awareness. That work has slowly brought about change: In the past two years, about 70,000 people have signed our campaign calling for the legalization of same-sex marriage, 147 companies have expressed their support for marriage equality and 80 organizations throughout Japan have endorsed our activities. More members of the Diet have also supported our efforts.
We believe all of this work has been directly or indirectly reflected in the Sapporo ruling. We have received messages from quite a few people saying, “This ruling has given me the courage to live.” Following the ruling, the national newspapers have all covered same-sex marriage, and momentum is building.
There are three reasons the Sapporo ruling is particularly noteworthy.
The first is that it set very strict standards of review. The Sapporo ruling states that “sexual orientation is a personal characteristic that cannot be changed by the will of the individual, and in that sense it is similar to race or gender. Therefore, whether or not a distinction based on such a matter has a rational basis must be carefully examined to determine whether or not it is truly an unavoidable distinction.”
Second, the decision was made by going back to the purpose and essence of marriage. The government argued that “marriage is for heterosexual couples because the purpose of marriage is to bear and raise children.” The Sapporo ruling, on the other hand, states that “the protection of a couple’s common life itself, with or without children, is also an important purpose of marriage” — an important clarification.
Third, the Sapporo ruling affirmed that the majority’s understanding or acceptance was not a requirement. At the same time, the court made clear that the transformation of the traditional view of the family cannot be a reason for not recognizing same-sex marriages.
There is no doubt that the Sapporo ruling will have a positive impact on the other lawsuits still in progress in four district courts; if other courts are to rule that the current law does not violate the Constitution, they will need to overcome the theory of the Sapporo decision.
Yet the team behind the Sapporo lawsuit has already announced their intention to appeal. This is because the Sapporo ruling did not recognize the current law as infringing on freedom of marriage under Article 24 of the constitution. We believe that the failure to recognize same-sex marriage is a violation, not just of the principle of equality, but also of freedom of marriage.
No matter what kind of decision is made by the district courts, either the government or the plaintiffs will file an appeal, and the final decision will be made by the Supreme Court. We expect this to happen by the end of 2023.
But the Diet should take the Sapporo ruling as a sign that it has a responsibility to promptly amend the law. Article 99 of the constitution stipulates that members of the Diet have a duty to respect the constitution. The Diet does not have to wait for a Supreme Court decision to take action for what is right.
On Jan. 18, Ikuo Sato, one of the plaintiffs in the Tokyo lawsuit, passed away from a brain hemorrhage. He had said, “When I die, I want to hold the hand of my partner, who became my legal spouse, and say that I was happy.” But his wish was not fulfilled.
At this very moment, there are people who are unable to envision a future because of the lack of recognition of same-sex marriages, and some who are even being driven to suicide. This is an urgent issue that affects everyday lives, as well as a symbolic discrimination.
There is no doubt that the recognition of same-sex marriages will be a big step toward the fundamental elimination of discrimination and prejudice against the LGBTQ community. This discrimination is the responsibility of the majority who lets it happen — and it is the majority that needs to change.
Makiko Terahara is representative director of Marriage for All Japan, an organization that campaigns for marriage equality, and co-chair of the Tokyo defense team for the same-sex marriage case.