On 13 December 2024, the Fukuoka High Court found that the current state of Japanese law which disallows same sex marriage is unconstitutional. This is in keeping with two previous High Court rulings, one in Sapporo and the other in Tokyo, which we have reported on earlier. While the other courts focused more on equality issues, the Fukuoka High Court instead focused on the right to pursue happiness that is outlined in the 13th article of the Japanese Constitution, which reads:
“All of the people shall be respected as individuals.Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” (Via the Japanese Law Translation Project)
The High Court’s decision (available as a PDF through Call4’s website) discusses how marriage is valued by society and as such requires the protection of the law. It goes on to say that marriage is both valuable and fundamental to people’s lives, and as such is protected as part of the right of individuals to pursue happiness. The court says it sees no need or reason to prevent individuals of the same sex from marrying, rejecting notions that same sex marriage would interfere with the public welfare. It goes on to state that, given that current law violates article 13, it also violates article 14 section 1 which guarantees equality under the law. Although Japan has partnership systems in place (which we discussed here), they are not equivalent to marriage, and do not resolve the situation. The decision then goes on to discuss Article 24 in much the same way as other cases thus far have and finding the law violates both sections 1 and 2 as well.
However, the demand for damages due to inaction by the legislature was deemed to be without merit and rejected. As a result, on 26 December the plaintiffs filed their appeal to the Supreme Court. [1]
PM Ishiba Makes Supportive Statement During Parliamentary Q & A
Before becoming Prime Minister, Ishiba Shigeru was seen as a fairly progressive member of the otherwise highly conservative Liberal Democratic Party. Indeed, after his elevation to PM, his rhetoric shifted away from being supportive of marriage equality and use of separate surnames for married couples (something still not allowed under Japanese law) to the much more traditional calls for a need of greater public understanding. [2] In yet another apparent shift, on 17 December he stated during a meeting of the upper house’s budgetary committee that allowing same sex marriage would be have a “positive influence on happiness across Japan,” perhaps reflecting in his rhetoric the position of the Fukuoka High Court. [3] Ishiba’s statement was echoed by Justice Minister Suzuki on the 19th as well. [4]
Whether this indicates that parliament will move before a Supreme Court decision forces their hand is unclear, especially given that it required such a decision to remove requirements for sterilization from the nation’s legal sex change law. It bears noting that the law still has not been revised, despite the no doubt embarrassing state of having a law on the books with unenforceable provisions..
[1] 「「同性婚訴訟」原告側上告「法制化の兆しすらない」」KBC, 26 December 2024 [2] For a detailed discussion of this change in rhetoric, see: 二階堂友紀「同性婚賛成の持論、封印した石破首相 相次ぐ違憲判決、動かない政治」朝日新聞, 30 October 2024 (paywall) [3] 共同通信 47 News「【速報】同性婚実現で日本全体の幸福度プラスと首相」17 November 2024 [4] https://x.com/marriage4all_/status/1869632775168594086Photo: Fukuoka High Court, via Wikimedia Commons, photo by Hirho
