PHOTO: by Kakidai, under CC BY-SA 3.0 https://creativecommons.org/licenses/by-sa/3.0, via Wikimedia Commons
On 28 November 2025, the Tokyo High Court ruled that Japan’s lack of marriage equality was constitutional, contrary to all of the five earlier High Court decisions, including one out of the same Tokyo High Court (albeit in a different case before a different set of judges). The decision overturned the Tokyo Regional Court’s decision in the case, which had found the law was in an “unconstitutional state”. It is the final High Court decision in the country before the anticipated fight at the nation’s Supreme Court. [1] (Our earlier coverage of the high court cases can be found here: Sapporo, Tokyo, Fukuoka, Nagoya, Osaka)
The decision was received with a sense of shock and drew immediate condemnation from the plaintiffs and their lawyers, expressed during their post decision press conference [2]. The decision was decried as discriminatory by both the lawyers and plaintiffs. One of the plaintiffs, Yamagata Masaya, said it was “probably the worst incident of having my human dignity and pride as a gay person damaged in a court of law” and called on people to use their anger at the decision to continue to fight for change. The other plaintiffs likewise expressed their disappointment, anger, and sadness at the decision, some referring to themselves as being invisible in the eyes of the law.
On 11 December, the plaintiffs appealed the decision to the Supreme Court. Hearings on this and the other cases should be sometime in 2026 [3].
This decision stands out for its incongruence with the other five, all of which looked at similar sets of evidence and arguments, albeit featuring different plaintiffs and lawyers. How the decision will affect the anticipated future Supreme Court battle is unknown. At the very least, it will likely serve as a reason for the government to continue to avoid discussion of the issue, despite widespread support for marriage equality across the nation’s populace.
While other outlets have already looked at overviews and responses to the decision, this article will be diving into the decision itself in somewhat more detail than in the past. We believe it is important for readers to be able to see what the decision says in order to appreciate the hurdles faced by same-sex couples within Japan, as well as to hopefully get a small look at what progress has been made. For those readers wanting to get a quick summary of the decision and potential issues with it, feel free to skip to the analysis section towards the end.
Looking at the Case: Where do the Issues Lie?
At the heart of the case were Article 14 Clause 1 and Article 24 of the Japanese constitution, which can be viewed at the Japanese Law Translation website. Article 14 can be seen as Japan’s equal protection clause. Article 24 outlines both the right to marry as well as the obligation for the government to enact laws that protect both marriage and families and their associated rights, including divorce. Article 13, Japan’s guarantee of the rights of the individual, is also mentioned in the decision, but not directly cited as a basis for the case by the plaintiffs.
Japanese law manages marriage and families via its family registry system. When couples marry, both partners are placed under a new entry in the registry. They are required to register under one spouse’s name or the other, although in the vast majority of cases, this winds up being the husband’s. (We will note that this system, which does not allow retention of one’s maiden name, is itself at the center of a separate and long-running set of legal battles [4]).
Neither the Constitution, Family Registry Act, nor Civil Code explicitly ban same-sex marriage. While the constitution refers to “the two sexes”, generally interpreted to mean opposite-sex couples, the courts have found that the wording still allows for the possibility of same-sex marriage. In contrast, the other two laws use specifically sexed language, stipulating that marriage is between a “husband and wife”. This wording creates a de facto ban and has been the chief focus of litigation.
The Plaintiffs’ Case
The plaintiffs’ arguments focus on the spirit of the Japanese Constitution as a whole, which places emphasis on human rights and respect for the individual. This, according to the plaintiffs, should include the right of any individual to marry whomever they choose, even if they are of the same sex. They say that creation of a separate system from the current marriage system would result in those unions being viewed as “less than” and create a basis for further discrimination. They note the shift in views not only regarding the purpose of marriage (namely, a shift away from procreation and towards partnership) but also in regard to same-sex marriage, which currently has majority public support according to polling.
They argue that not allowing marriage for same-sex couples denies them not only that basic right, but also denies them the rights and protections that come with it, such as the ability to receive social services reserved for married couples. This results in unequal treatment due to unchangeable features of their persons, namely their sexual orientation and gender identity.
Finally, they point to long term delays in producing legislation, noting that the country has long acknowledged the disadvantaged position of sexual minorities in Japanese society. The plaintiffs point to the 1997 Supreme Court decision on government discrimination against homosexuals [5] and the 2008 adoption of the UN declaration on sexual orientation and gender identity by the Japanese government as proof that the government has been aware of the situation since at least the late 1990s.
The Court’s Decision
The court in its decision rejected all of the plaintiffs’ arguments regarding the constitutionality of Japan’s lack of marriage equality.
As for the wording of the Constitution, the court found that it only obligates the state to provide a framework to guarantee rights and protections for heterosexual couples and families. No such obligation exists, they say, for same-sex couples, despite changes in public opinion. They agree that there is no rational reason to disallow same-sex unions under the current Constitution, but no absolute necessity to allow it, either. As such, even though views on marriage may have shifted, it should be the responsibility of the Diet (Japan’s parliament) to keep up with these changes, not the courts.
The decision returns numerous times to the fact that different countries have different systems for marriages and unions between heterosexual and same-sex couples. It also repeatedly notes that so-called common law marriage has become recognized in Japan as having a similar weight to legally registered marriage, despite having no firm definition in the law. (Note: the court did not discuss how coverage for same-sex couples is as of yet far from complete, nor examined the fairness of this. See our earlier article on this here.) As such, the court is of the opinion that there does not need to be an identical system put in place for same-sex couples.
The decision then goes into the equal protection claim. Noting that, while the government cannot discriminate in an unreasonable fashion, in this instance, the court believes there was reason to treat same-sex and heterosexual couples differently when the laws were originally written. Citing the constitution’s preamble (“We… for ourselves and our posterity… do firmly establish this Constitution”) and tying this to the institution of heterosexual marriage and the production of children, the decision reiterates that the state is obliged to provide laws only for heterosexual couples and their children, despite shifts in public opinion about what marriage is and who it is for.
The court reiterates what it sees as the difficulty in implementing marriage equality in the exact same way that it implements heterosexual marriage, emphasizing the need for the Diet to debate both the integration and appropriateness of marriage laws to same-sex couples. As examples of potential issues, the court raises the question of separate surnames for married couples and the potential issues children in a same-sex marriage could face (note: this issue is ongoing, and is therefore not relevant to current law) and that of marriage between close relations.
The court recognized that a same-sex couple in a common law marriage situation are in a different one as heterosexual couples, and that society’s understanding of such couples is still lacking. However, they note that although debate has yet to begin on them, several bills on marriage equality have been submitted to parliament, and that as such, the system is working as intended: rights not explicitly outlined in the constitution are in the process of being established by parliament.
The decision proceeds to list ways in which same-sex couples can avail themselves of systems similar to those automatically afforded to married couples, concluding that different treatment for same-sex couples does not automatically render a lack of marriage equality unconstitutional.
The court then moved on to the plaintiffs’ claim that the lack of marriage equality must be weighed against the Constitution’s requirement to protect human rights as well as equal protection under the law in order to answer whether parliament is acting beyond its powers in denying marriage equality. The court makes the argument again that the constitution only envisioned heterosexual couples and their children in its framing. If that framing is rejected, the court claims that marriage laws themselves could be rendered invalid and no one would be able to be married. They then return to their belief that the shape same-sex unions should take has yet to be decided. The court contends that without this step, it would lead to same-sex marriages being the same as heterosexual marriages. Decisions on these questions fall under the authority of the Diet, according to the court.
As to whether not recognizing same-sex marriage is a violation of the constitutional guarantee to respect the rights of the individual, the court notes that while sexual orientation and gender identity are individual characteristics and therefore “pre-national” (note: that is, something established and existing outside of nations and laws), legal systems of marriage are not. As such, not recognizing same-sex marriage cannot be said to be a violation of the dignity of the individual.
The court then returns to the issue raised by the plaintiffs that creating a separate system for same-sex unions would be discriminatory. The court again raises the fact that different countries have implemented same-sex marriage and unions in different ways, and claims that one cannot say that one system is better and another worse. They go on to state that while discrimination against same-sex couples and their families may indeed improve dramatically if same-sex couples were allowed to take advantage of the existing marriage system, the court insists there is no need to create an identical system, nor is the Diet bound by the Constitution to create one.
The decision concludes by noting some actions taken by the legislature indicate progress is being made, but should the government refuse to enact new measures or act to alleviate discrimination, it could indeed be seen as libel for not fulfilling its responsibilities towards citizens. Should the state of inaction continue, the government could indeed be found to be in violation of the Constitution’s 13th and 14th articles.
Our Analysis
The inferences found in the decision are, to say the least, bleak.
While the progress made in some other court cases is evident here, such as no longer seeing the 24th article of the constitution as barring same-sex marriage outright (a view taken by most decisions), this decision appears to view making same-sex marriage (or other kinds of nationally-recognized legal unions) equivalent to heterosexual marriage as unnecessary at best, potentially unacceptable at worst. The decision repeatedly invokes common law marriage, implying it is a reasonable substitute, while also admitting that common law marriage itself lacks a solid foundation in law. The court also listed “work-arounds” that same-sex couples could use to get marriage-like privileges, but these all require extra effort for things legally married couples receive automatically.
More than anything, the decision continually returns to the notion that applying current marriage laws to same-sex couples would somehow be too difficult and requires “more debate”. A similar refrain can be heard regarding cases seeking to end the country’s laws forcing married couples to share a single surname. The courts have repeatedly rejected claims that forcing couples to share a surname is unconstitutional by saying that the responsibility for changing things lies with the Diet, and is generally described as needing to be done only after “careful consideration”.
One commonality between the fight for allowing separate surnames and marriage equality is that both would require modification of the Family Registry Act, a law that seems to be nearly sacrosanct in Japanese politics. In contrast, South Korea, which continued to use the family registry system imposed by Japan during its colonial rule of Korea, replaced it wholesale in 2008 [6], demonstrating that revising or even radically reinventing the system is far from impossible.
As it is, the court’s decision, even with its final warnings that the government could eventually be found to be in violation of the constitution due to legislative inaction, can be said to do little more than to defer action to some unknown point in the future, rather than take the decisive stance seen in other High Court rulings.
References
[1] Tokyo High Court decision (PDF, Japanese only, via the Call4 website) [2] Video of the live event is available on YouTube: https://www.youtube.com/live/JI2tyB7__VA [3] 米田優人「「最高裁は違憲判断を」同性婚訴訟で原告が上告 東京高裁は「合憲」」朝日新聞, 11 December 2025 [4] Alyssa Pearl Fusek “Separate Spousal Surnames: Reformers in Japan Push for Change to Outdated Law” Unseen Japan, 12 July 2019 [5] “Gays win lodging discrimination suit against Tokyo” Japan Times, 16 September 1997 [6] Yoo Ji-won “2005, Successful Abolition to the Hoju-je System Achieved by Citizens” The Chung-Ang Herald, 1 March 2024
