On 30 October the Tokyo High Court handed down its decision on a case of three couples who have petitioned the courts to declare the current marriage system unconstitutional and to allow same sex couples to marry and enjoy the privileges that come with it. The court did indeed find the applicable laws to be unconstitutional and in need of change. This decision places the government in the position of having to defend an increasingly unpopular state of affairs, and places them closer to the possibility of a Supreme Court decision that may very well agree with the lower courts.
The court’s decision and an official summary can both be found at the Call4 website (decisions in Japanese).
At the heart of the suit is Japan’s laws governing marriage and how those marriages are recorded. Japanese law does not presently explicitly forbid individuals of the same sex from marrying. Rather, the wording is that a couple can become “husband and wife” by submitting the appropriate paperwork, and their marriage is then to be recorded in the family registry. This results, however, in a de facto ban on same sex marriage, as the wording “husband and wife” are understood to always be a man and a woman. [1]
The Tokyo High Court case stems from a suit originally filed in 2019 involving three couples. Two of the couples had their applications for marriage refused because the partners were of the same sex. The third, whose marriage is recognized in Germany, faced rejection in having their marriage recognized in Japan, despite marriages overseas generally being recognized by Japanese law.
The focus of the arguments is similar to those in different cases we’ve already reported on here from earlier in the year. One of these earlier court decisions came from the Sapporo High Court, making the new Tokyo High Court decision the second high court decision to come down.
The Tokyo High Court decision focused on the law’s constitutionality with regards to the 14th and 24th articles of Japan’s constitution. In the decision, the court found that the law did indeed violate both article 14 and the second clause of article 24.
The government’s defense focused on their belief that the constitution is to be interpreted to mean opposite sex couples where it refers to “both sexes”, an interpretation other courts have rejected. The government also stated that it believes marriage is not merely the formation of a bond between two people, but also important for producing and rearing the country’s next generation. They repeat an often used excuse for denying rights to same sex couples: they cannot reproduce on their own. The government goes on to state that same sex couples are not being excluded from marriage, and that the plaintiffs’ desire to be included in the current marriage system while rejecting alternatives makes their claim that the government is not acting “baseless”. However, the government also notes why the plaintiffs reject the creation of alternative systems: they could be used to exacerbate discrimination and solidify it. The government went on to state that other systems (oaths, contracts, etc.) can be used to receive the same or similar benefits married couples enjoy to some degree.
The court’s decision notes that Japan has been repeatedly urged by international bodies to enact marriage equality, and that Japan is now in fact an outlier among developed nations for its stance. It notes that domestic companies within Japan are also increasingly opening up services to same-sex partners that were previously limited to married couples. It goes on to cite surveys which note changing attitudes toward not only same sex marriage but also marriage in general. Focusing on same-sex marriage, a survey done by the Japan Public Opinion Association from 2014 showed approximately 42% were in favor of allowing same sex marriage and 52% were against, but by 2023 a survey performed by Kyodo found that 71% for and only 26% against. While not all surveys showed this dramatic a shift, the general trend was towards majority acceptance. Other surveys reviewed in the decision demonstrate that people see the purpose of marriage not exclusively or even largely to be about having children, but rather centers on the desire of a couple to be together and enjoy the benefits derived from that, both social and personal.
In its conclusion, the court found that the stated reasons for continuing to deny the marriage rights to same sex couples did indeed discriminate, and places same sex couples at a disadvantage in numerous areas.
On the Horizon
While the Tokyo High Court decision did find the lack of marriage equality to be unconstitutional, the court did not find the government liable for damages from failure to take legislative action. As such, on November 8, the plaintiffs announced their intention to appeal to the Supreme Court, setting up the possibility of a supreme court decision that may have the power to move the government to take action, or even change the face of the law on its own. [2]
Not long after this on November 13, another case on marriage equality, this time in the Osaka High Court, held its closing arguments, with the resulting decision scheduled to be delivered next March. This case is an appeal of an Osaka Regional Court decision which was an outlier in that it found the current state of affairs to be constitutional. [3]
The family registry (koseki) forms the basis for the legal existence of the individual. Only Japanese citizens have entries in the registry, and as such, also serves as proof of citizenship. It is used in numerous places including applications for passports and other official documentation, when applying for jobs to provide proof of identity, and elsewhere. Changes to an individual’s family status (married, divorced, adopted, etc.) are all recorded in the family registry. However, the registry system itself has long been seen as perpetuating discrimination for a variety of reasons.
Family Registries
The main focus of the registry is to record familial relations. So, how does the Japanese family registry system record someone’s sex? As the system reflects family structure, children are listed as 1st son, 1st daughter, 2nd son, 2nd daughter, etc., according to their sex and the birth order for children of that sex.
A Basic Overview of the Japanese Court System
Typically, petitioners file suit with their nearest regional court, of which there is one for each of Japan’s 47 prefectures, with the exception of Hokkaido which has 4, bringing the total to 50. There are numerous sub branches as well. After a decision is rendered at a regional court, it can generally be appealed to a high court. High courts cover specific geographical regions across the country, meaning that an appeal from a lower court will usually go to a specific high court. Should a decision be appealed at the high court level, the case usually then goes on to the Supreme Court. If a decision is not appealed, the decision generally stands. In cases where a law is found to be unconstitutional in a lower court, the appeals process is often followed up to the Supreme Court by either the plaintiffs or by the government.
Another thing that needs to be noted is that the Japanese legal system is generally one of national law. Prefectures and municipalities can pass local laws and ordinances, but most matters are covered by national law. So, when decisions are handed down that address national law, their effect is likewise national. The decision to find Japan’s lack of marriage equality unconstitutional rendered by the Tokyo High Court, for example, wouldn’t just affect Tokyo and the other areas the High Court covers. If the decision goes without an appeal, it could take effect nationally.
Two examples that might help clear up the difference between national and local laws are marriage laws and “partnership oath” systems which we have discussed before. Partnership oath systems are local, meaning their reach is also generally local. Marriage laws are national, meaning changes to them would have national consequences.
Sources and Citations
[1] A translation of the applicable laws can be found at the Japanese Law Translation website here for the civil code on marriage and here for the family registry act.[2] 「東京 同性婚訴訟で原告が上告 “踏み込んだ判決してほしい”」NHK首都圏 News Web, 8 November 2024
[3] 「同性婚訴訟、大阪高裁判決は来年3月 地裁は唯一「合憲」判断」毎日新聞、13 November 2024
