We, Lawyers for LGBT and Allies Network (“LLAN” are engaged in various efforts to realize a society where LGBT and other sexual minorities can fully achieve their potential and succeed with confidence. We sometimes receive questions from various people including the media such as “Doesn’t the Constitution of Japan prohibit same-sex marriage?” We address this topic in this first paper.
On February 18, 2015, Prime Minister Shinzo Abe told the plenary session of Upper House that “the current constitution does not envisage marriage between couples of the same sex.” He made similar remarks to the Upper House Budget Committee on April 1, 2015. Some media reports have suggested that these comments demonstrate Prime Minister Shinzo Abe’s thinking that “the Constitution of Japan prohibits same-sex marriage, and recognition of same-sex marriage would require constitutional revision.”
But does the current constitution actually prohibit same-sex marriage?
We at LLAN believe that “the Constitution of Japan does not prohibit same-sex marriage.”
We explain the reasons for this below.
Let us first take a look at Article 24 of the Constitution of Japan, a provision on marriage.
Article 24, Paragraph 1 of the Constitution of Japan sets forth as follows:
“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.”
Interpretation of “based only on the mutual consent of both sexes” as set forth in Article 24 of the Constitution of Japan is extremely important when discussing the relationship between the constitution and same-sex marriage.
What comes to mind when seeing the words “both sexes”? Many might construe this as meaning both genders, that is, “man” and “woman.” In other words, from this language only it could be understood that marriage is established under consent of a “man” and a “woman,” and marriage of a “woman” and a “woman” or a “man” and a “man” accordingly cannot be called “consent of both sexes”—that is, that the constitution forbids same-sex marriage. Many of those who contend that the constitution prohibits same-sex marriage draw on this understanding.
A look at the history surrounding enactment of Article 24 of the Constitution of Japan, however, reveals that the constitution does not set forth “both sexes” based on such a notion.
Why then does Article 24 provide that marriage is established “based only on the mutual consent of both sexes”?
To understand this we must hark back to the establishment of the constitution. A feudalistic, patriarchal system was entrenched in Japan prior to World War 2. That is to say, without permission of the head of the family (e.g., the father or eldest son), the wishes of two persons were insufficient for them to be allowed to marry, even for a couple in love. With the postwar drafting of the Constitution of Japan, however, this patriarchal system was abolished and marriage could be established only with the consent of both persons. This is provided in Article 24, Paragraph 1 of the Constitution of Japan. In other words, the language “based only on the mutual consent of both sexes” means that marriage is recognized “only on the mutual consent of both persons.”
Further, the Constitution of Japan was established around 70 years ago at a time when formal discourse on homosexuality was nearly nonexistent. The drafters of the constitution likely failed to even consider that there were people of the same sex who wished to marry (even though, of course, homosexuality did exist at the time). As same-sex marriage was not envisaged in the first place when drafting the constitution, it is inconceivable that the language “both sexes” was used to forbid same-sex marriage. Article 24, Paragraph 1 of the Constitution of Japan also contains the words “husband and wife,” but this language anticipated cases of marriage of “both sexes” based on the thinking of the drafters described above, and simply refers to a married couple as “husband and wife”, and, accordingly, the Constitution of Japan cannot be deemed to prohibit same-sex marriage on the basis of the words “husband and wife” just like it cannot be deemed to prohibit same-sex marriage on the basis of the words “both sexes” as discussed above. That is, we at LLAN believe that “the Constitution of Japan does not prohibit same-sex marriage,” a belief that is increasingly shared by constitutional scholars.
In this way, even as the understanding that the Constitution of Japan does not prohibit same-sex marriage spreads among experts, the view that “the Constitution of Japan prohibits same-sex marriage” can still be found in the media and the like. This is the current situation in Japan. There was also a case of a city hall not accepting a notification of marriage submitted by a same-sex couple on grounds of “non-acceptance under Article 24 of the Constitution and Article 740 of the Civil Code.”
LLAN aims to create a society where LGBT and other sexual minorities can fully achieve their potential and succeed with confidence. All persons must be treated equally to realize such a society. Among LLAN’s activities, same-sex legislation in Japan often comes up as a subject of interest. Accordingly, we have uploaded this article to share LLAN’s views on the relationship between Article 24 of the Constitution of Japan and same-sex marriage.
While the discussion on same-sex marriage is wide-ranging, we will continue our efforts so that, at minimum, the correct understanding that the Constitution of Japan does not prohibit same-sex marriage further takes root among society.
 http://www.huffingtonpost.jp/2015/02/18/douseikon-abe_n_6710264.html、 http://kokkai.ndl.go.jp/SENTAKU/sangiin/189/0001/18902180001007a.html
 https://www.japantimes.co.jp/news/2015/02/20/national/social-issues/gay-marriage-push-faces-constitutional-barrier/#.WdV61GwUlDB、 http://archive.fo/gYcKe、 https://www.nikkei.com/article/DGXKZO16033090S7A500C1EA1000/
 Hogaku Seminar Vol. 737, p. 11 (by Satoshi Kotake, Professor, Takushoku University).