(Photo: Osaka High Court, by Topgun1997 via Wikimedia Commons)
On 25 March, the Osaka High Court found that the country’s lack of marriage equality was unconstitutional. This makes the fifth high court finding Japanese law to be out of step with the country’s constitution in regards to marriage equality. Significantly, it also overturned the only lower court ruling that had found lack of marriage equality to be constitutional [1]. Even so, there is still no sign of change on the horizon in the national legislature.
[Update] On 7 April, the plaintiffs have appealed the case to the Japanese Supreme Court.As always, the following is based on the decision [2] as well as other reporting out of Japan, cited as necessary.
Three couples brought suit against the Japanese government on constitutional grounds, charging that not allowing same sex marriage was a violation of the country’s constitution. Among the couples was one that had already had their marriage recognized in the state of Oregon in the United states. However, their application for recognition of their marriage was rejected in Japan. One of the partners in this couple has American citizenship.
As with other similar cases that we reported on at the Sapporo, Tokyo, Fukuoka, and Nagoya High Courts [3], the plaintiffs cited the 13th, 14th, and 24th articles of Japan’s constitution [4]. The Osaka High Court found that current Japanese law does violate both the first clause of the 14th and second clause of the 24th articles of the constitution, aligning with many of the other decisions already delivered.
The decision covers a broad number of issues, outlining the arguments made by both the plaintiff and the government, before entering into the court’s findings. For the sake of this article, we will look primarily at what the court itself has found.
To begin with, the decision looks at the history of marriage both inside and outside of Japan. It comes to the conclusion that marriage in Japan does not rest, nor has it ever rested, on the ability of a couple to reproduce. (This counters one of the positions of the government, which frames marriage as an enterprise to produce biologically related offspring, thus excluding same-sex couples.) While conceding that discussions of same sex marriage did not arise even during the deliberations on the creation of the nation’s post-war constitution, the court focuses its attention on the fact that marriage is primarily for the individuals involved, and given that the benefit the couple derives are so large, they are deserving of legal protections.
The court then enters into an examination of the history of how homosexuality has been viewed medically over the years both inside and outside Japan. We will look at what they discuss related to Japan here. While there was a brief period in the late 19th century after the country modernized where, following Western models, homosexual sexual acts were criminalized, this was later discarded when the country further modernized its legal code shortly thereafter. In the post-war period, the Japanese medical establishment followed the lead of the West in viewing homosexuality as a form of sexual perversion. This led, in 1980, to the Ministry of Education sending materials to schools on handling “problem students” that included instructions on discouraging “perversions” such as homosexuality, as this was seen as preventing the “normal” development of heterosexuality and was tied to disrupting the social order. This sort of language was removed from the material half a decade later. The decision also discusses treatment from the 1980s for individuals wanting to be rid of their own homosexuality (apparently a reference to conversion therapy practices for so-called “ego-dystonic homosexuality”, a now-defunct diagnosis). Following the removal of homosexuality from the ICD-10 in 1995, Japan likewise ceased to view homosexuality as a mental illness.
Following this overview, the court moves on to discuss not only the international progress made with regards to marriage equality and LGBT rights in general, but also how Japan has been encouraged by the UN and other international partners to improve the situation for LGBT people in the country. They also cite numerous domestic polls showing increased support for same-sex marriage over the years.
Finally, to the constitutional questions, while the court finds that the first clause of article 24’s reference to “both sexes” refers to men and women, they also note that no discussion during deliberations over the article featured any discussion of same-sex marriage. So, while opposite-sex couples were seen as being the default at the time, the court does not believe that this precludes same-sex marriage. Even so, they do not see that the legislature had an immediate need to provide legal remedy, seemingly as same-sex marriage has only relatively recently become recognized as a pressing issue. This, in turn, refutes the charge that lack of marriage equality violates the 13th article of the constitution.
However, the decision goes on to note that same-sex couples do in fact face “damage to their personal interests”. This, especially given that homosexuality is not a mental illness and is, in fact, a natural variation on human traits. The court also goes on to note that the government itself, in passing its so-called LGBT understanding act in 2023 [4], also recognizes that society needs to become more accepting of diverse sexual orientations and gender identities.
Additionally, as the law unreasonably restricts one group from receiving the same protections and advantages afforded to the majority, they find that the law is, in fact, in violation of clause 1 of article 14. They also go on to note that creation of a separate system for same-sex couples would not alleviate the “irrational discrimination” they face. As such, continued restrictions on marriage that exclude same sex couples violate both clause 1 of article 14 and clause 2 of article 24.
[1] Decision available from call4.jp here (pdf, Japanese). [2] A full English language translation of the 2022 Osaka Regional Court decision is available from LLAN. [3] LLAN has full translations of these earlier decisions available on their website. [4] Links are to the Japanese Law Translation website. [5] Elaine Lies, “Japan enacts watered-down LGBT understanding law”, 16 June 2023, Reuters [Update] 「同性婚大阪訴訟、原告側が上告」7 April 2025, Kyodo
