Recent Trends in Japanese Law regarding Same-sex Marriage
Ruben E. Rodriguez Samudio
(November 1, 2022)
I. Introduction
Like many other countries, Japan has a complicated relationship with same-sex couples. Gary Leupp (1997) explains that, while there are some obscure descriptions of male-male relationships can be found in the Nihongi (Chronicles of Japan, A.D. 720) and the Shoku Nihongi (Chronicles of Japan, continued A.D.869), the first undisputed records of homosexuality in Japan can be traced back to the late tenth century. Buddhist ideas also influenced social attitudes toward male-male relationships. Minamoto (1995) posits that, under Buddhism, one of the most sinful sources of mental affliction was female sexuality. Similarly, Leupp points out that during the medieval period, Japanese Buddhism considered women as inherently evil and defiling, perhaps discouraging monks from seeking them.
Minamoto observes that Japanese views on homosexuality differ from Christian views in that the latter were far more censorious, discriminating and excluding homosexuals. By contrast, Japanese homosexuality tended towards liaison and hierarchical relationships.
These relationships were consummated under a practice known as Nanshoku (translated by Leupp as man’s male-oriented eros), where older men would hire or take care of younger men. Thus, as Leupp mentions, “Priests and monks had their chigo, ranking samurai had their hired bedmates, daimyo retained their ‘golden buttocks’ or ‘lord’s good, and townsmen could procure male sex partners through employment agencies”. Nanshoku was considered one of the weaknesses of the flesh, to be partaken in moderation, and critics of the practice were considered uncultured and boorish.
From a comparative law perspective, Japanese homosexual couples have had some liberties not recognized in other countries. For example, Japanese law only penalized sodomy for seven years, from 1872 to 1880, under western influence, and since then, sex between consenting adults has been legal regardless of sexual orientation. The above historical review is a mere glimpse to the intricacies of homosexual relations in Japanese sexual minorities during the 20th century. Suffice it to say that, as western influence increased, Japanese societal views on the matter also changed.
A clear example is Article 24 of the Constitution, redacted under US occupation, and which states:
“Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
Thus, there appears to be a constitutional prohibition against same-sex marriage; recent judicial decisions do not necessarily construe it as so, as we will later discuss. Another area where the US exerted its influence was in the concept of family, which resulted in amendments to the Japanese Civil Code to westernize family law rules.
Perhaps, because of this homosexual couples did not have access to the legal benefits of marriage for many years. This changed in October 2015, when Shibuya and Setagaya in Tokyo announced they would issue partnership certificates. While these certificates do not carry the same legal weight as a marriage certificate, they can be used for housing and hospital visitation. By October 2022, 239 municipalities have introduced a partnership system, and almost 3500 couples have registered as of 30 September 2022 (Nijiiro Diversity, 2022).
Even though the recognition use of partnerships has been on the rise, they still do not grant the same legal benefits as marriage. This has led to multiple lawsuits across the country challenging the constitutionality of the “ban” on same-sex marriage. In 2021, a Sapporo District Court issued a ruling on the matter, as did an Osaka District Court in 2022. However, these courts reached different conclusions. In both cases, the plaintiffs sued the government over the negative of local authorities to accept their marriage application. The plaintiffs argued that certain provisions within the Japanese Civil Code and the Family Register Act banned same-sex marriage. The plaintiffs sought damages claiming that, by rejecting their applications, the government had infringed upon their constitutional rights under Article 13 (respect to individual dignity):
“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”
Article 14 (equal protection under the law):
“All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
Peers and peerage shall not be recognized.
No privilege shall accompany any award of honor, decoration or any distinction, nor shall any such award be valid beyond the lifetime of the individual who now holds or hereafter may receive it.”
and Article 24 (marriage and family).
Both courts similarly approached the issue, beginning with a review of the legal status of homosexuality in Japan since the Meiji period (1868-1912), when most current codes were enacted. This was followed by how the social views on homosexuality have changed abroad and in Japan. They also surveyed how other jurisdictions have approached the issue and assessed the current social views in Japan using government polls on the subject.
Both courts came to the same conclusion regarding specific points. First, they agreed that under Article 24, there was no explicit constitutional ban on same-sex marriage. They also concurred that the National Diet had ample powers to regulate the marriage system. Similarly, for different reasons, they also coincided that same-sex couples’ lack of access to marriage was not an infringement under Article 13. The courts disagreed, however, on whether same-sex couples’ lack of access to a system akin to marriage was a type of discrimination based on “reasonable grounds” and thus went against the principles enshrined in Article 14 of the Constitution.
II. The Sapporo Case
The Sapporo court began addressing the plaintiffs’ constitutional challenges by examining Article 24 and concluded that said provision was not dispositive. Instead, it granted the National Diet ample faculties to regulate the legal institution of marriage. Regardless, the court admits that there are constitutional limits to the National Diet’s power, namely that marriage is based on the spouses’ consent and freedom.
Nevertheless, the court did note that Article 24 explicitly requires the “mutual consent of both sexes” and that marriage shall be maintained by the cooperation of “husband and wife”. To address this apparent prohibition, the court construed the constitutional text in a limited manner, i.e., Article 24 deals exclusively with heterosexual marriages, with no explicit ban on same-sex marriages. Therefore, the Civil Code and Family Register Act do not run afoul of the constitutional text.
Furthermore, the court acknowledges that individuals do not have a constitutional right to demand the establishment of a specific model of marriage or family. This interpretation extends to same-sex couples. Thus, same-sex couples do not have the right to seek the implementation of a specific marriage system, even when invoked under Article 13, which grants general protection of human rights.
The court did side with the plaintiffs on the issue of equal protection under the law. Under the current Supreme Court interpretation, the equal protection clause allows for different treatment only when there are “reasonable grounds” to do so. Hence, there is a need to decide whether the lack of a marriage alternative for same-sex couples was based on reasonable grounds. However, the court noted that the Constitution grants ample powers to the National Diet to regulate marriage. Therefore, to sidestep the issue, the court decided to focus not on the idea of marriage itself but on the legal effects that arise from marriage (Kon’in ni yotte shojiru Hoteki Koka).
The court emphasized that while heterosexual couples enjoyed the freedom to access these legal effects based on their decision to marry or not, the same could not be said of same-sex couples. This led to the question of whether such treatment was based on “reasonable grounds.” –
In determining reasonableness, the court stressed that homosexuality is no longer considered a mental illness and that sexual preference, like race or sex, is not something an individual could change at will. Furthermore, the only difference between homosexual and heterosexual individuals is their sexual preference; such a preference cannot reasonably justify a difference in treatment under the law. Therefore, the court concluded that a distinction based upon sexual preference goes beyond the National Diet’s constitutional prerogative to legislate over the matter and thus infringes Article 14 of the Japanese Constitution.
III. The Osaka Case
Like the Sapporo court, the Osaka court also concluded that Article 24 only regulates heterosexual marriage. However, both courts differed in their reasoning. For one, the Osaka court decided to focus on the phrase “both sexes,” pointing out that the current interpretation held it to mean men and women and that no other use of the term could be found within the Constitution or any other legal text. Furthermore, the English draft of the current Constitution used the term “both sexes,” leaving no doubt that the term marriage under Article 24 referred only to heterosexual couples. Nevertheless, it did recognize that nothing within the constitutional provision banned same-sex marriages or any system akin to it.
Regarding Article 13, the court decided that, as stipulated in the second paragraph of Article 24, the Constitution does not enshrine any particular marriage system and, instead, must be established by law, following constitutional principles. Therefore, the freedom to marry must be understood as the freedom to marry within the system determined by statute, which is not a natural right. Thus, the freedom to marry someone of the same sex does not fall within the human rights protection found in Article 13.
Like the Sapporo court, the Osaka court considered that the National Diet has ample constitutional faculties to legislate over marriage. However, the Osaka court focused on the constitutional limitation imposed by Article 24, paragraph 2, specifically that the Constitution required marriage to be equal for both sexes and that this equality should be more than a mere formality. Under Supreme court precedent, respect for human dignity and the equal treatment of the sexes are the determining factors when deciding whether a particular marriage system or the legal effects that arise from it are unconstitutional.
The court admitted that while none of the challenged provisions prohibited same-sex marriage and that many of the same legal benefits, e.g., cohabitation or the duty of support, could be achieved via contract law, others, such as tax benefits, could not. To the court, the freedom to marry was limited to deciding one’s partner, and the spouses did not have the freedom to change the marriage system to their liking. Such changes, the court continued, should follow the democratic law-making process, which was still ongoing, pointing to the discussions held by the National Diet in 2015. Rather crudely, the court concluded that, while it could not deny that the lack of legislative activity on the subject might be ruled unconstitutional in the future, the current provisions were within the National Diet legislative prerogative.
Finally, concerning Article 14, the Osaka court also examined whether any reasonable grounds would allow the distinction between heterosexual and same-sex couples. Notably, the court pointed out that while Article 24 did not ban same-sex marriage, there were no constitutional protections either. Hence, from a social and historical perspective, a lack of a marriage system for same-sex couples did not infringe upon the first paragraph of Article 14. Furthermore, the court decided that the distinction between homosexual and heterosexual was reasonable based on the existence of same-sex partnership systems at various local government levels, the Japanese population’s changing opinions on the subject, the possibility of further amendments, and the National Diet’s Constitutional authority over marriage.
IV. Aftermath
When the Sapporo court’s decision was announced, it was lauded as ending the constitutional ban on same-sex marriage (Terahara, 2021). Likewise, the Osaka court’s ruling was criticized as a blow to same-sex marriage advocates (Imahashi, 2022). Reading both rulings, however, challenges the idea of a ban on same-sex marriage. Both courts agreed that nothing in the Constitution explicitly prohibited same-sex couples from marrying or, at the very least, having access to similar legal benefits.
As both courts agreed, the issue was whether the National Diet had created unreasonable discrimination via the lack of marriage alternatives for same-sex couples. Furthermore, both courts coincided in their interpretation that same-sex couples, or any individual for that matter, do not have a constitutional right to ask for a specific marriage system.
Nevertheless, the Osaka court’s argument on the possibility of change does not address the current situation and effectively decides to sidestep the issue altogether. On the other hand, the Sapporo court was very cautious in how it worded its decision. The court did not rule that the challenged provisions were unconstitutional because they banned same-sex marriage. Indeed, none of the provisions subject to constitutional scrutiny explicitly states that same-sex couples cannot marry. Instead, the court stated that “…while the opportunity to use the system called marriage is offered to heterosexual couples, same-sex couples are not offered the means to enjoy even some of the legal effects of marriage”.
While this might seem like an argument on semantics, the writing indicates that the court would have been content if same-sex couples could access the same legal benefits as heterosexual marriages, even if granted under a different name. The fact that the plaintiffs were not awarded damages further supports this argument. The court considered that, since there had been no judicial rulings on same-sex marriage, the National Diet could not have been made aware of the unconstitutionality of the Civil Code and Family Register Act. Hence, the full authority falls within the National Diet, and not the courts.
From this, it follows that to the Sapporo court, the ruling serves as a sort of notice to the National Diet that it must address the situation. However, both courts were clear that this is a matter for the legislative branch and that the plaintiffs do not have a right to seek a specific marriage system. Hence, it could be argued that the government must provide them with the same benefits, but not necessarily under the institution of marriage.
However, with other ongoing lawsuits and the news that the Osaka plaintiffs have appealed, the legal discussions on the topic are still far from over. As more and more courts weigh on the matter, the probability that the Supreme Court will address the issue increases. Until then, same-sex couples still have a long road ahead of them.
V. References
Imahashi, R. (2022, June 20). Japan court delivers blow to same-sex marriage advocates.
Retrieved October 25, 2022, from NIKKEI Asia: https://asia.nikkei.com/Spotlight/Society/Japan-court-delivers-blow-to-same-sex-marriage-advocates
Leupp, G. (1997). Male Colors: The Construction of Homosexuality in Tokugawa Japan.
University of California Press.
Minamoto, J. (1995). Buddhism and the Historical Construction of Sexuality in Japan. U.S.-
Japan Women’s Journal, English Supplement, 87-115.
Nijiiro Diversity. (2022). Collaborative Study of LGBT Partnership Coverage in Japan.
Shibuya City. Retrieved October 25, 2022, from https://www.city.shibuya.tokyo.jp/assets/kurashi/psinfo_202210.pdf
Terahara, M. (2021, March 20). Japan’s groundbreaking marriage equality ruling paves the way for change. Retrieved October 25, 2022, from The Washington Post: https://www.washingtonpost.com/opinions/2021/03/20/japan-sapporo-marriage-equality-change/
VI. Case Law
Sapporo District Court, 17 March 2021. Westlaw Japan id: 2021WLJPCA03176001.
Osaka District Court, 20 June 2022. Westlaw Japan id: 2022WLJPCA06206001.
Supreme Court 27 May 1964. Westlaw Japan id: 1964WLJPCA05270007.
Supreme Court 4 April 1973. Westlaw Japan id: 1973WLJPCA04040004.
Supreme Court 16 December 2015. Westlaw id: 2015WLJPCA12169001.
Translations from: https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.
