LLAN members prepared the English summary and full translation of the Fukuoka District Court decision on marriage equality.

On 08 June 2023, the Fukuoka District Court ruled that, while the current marriage system undermines the individual dignity of same-sex couples and significantly disadvantages them, failing to provide a framework for legally recognizing same-sex marriage did not violate the Constitution. A copy of the judgment (Japanese) is available here (Japanese summary). An English translation of the judgment prepared by LLAN is available here.  Our summary is below.

We are grateful to LLAN members from Amazon, Ashurst, Baker & McKenzie, DLA Piper, Mori Hamada & Matsumoto, Morgan Stanley MUFG, Morrison & Foerster, Nagashima Ohno & Tsunematsu, Nishimura & Asahi and Pillsbury who prepared the translation and summary.

Fukuoka District Court Ruling on the Constitutionality of Same-Sex Marriage in Japan – Summary

On 08 June 2023, the Fukuoka District Court (the “Court”) published its judgment on the constitutionality of same-sex marriage in Japan – the fifth ruling in a series of five cases concerning marriage equality brought in Japan. The case concerned three same-sex couples (the “Plaintiffs”) who sought damages on the basis that certain provisions of the Civil Code and the Family Register Act (the “Provisions”), which restrict marriage to heterosexual couples, violated the principles of marriage and equality protected under Articles 13, 14(1), 24(1) and 24(2) of the Constitution. They also sought damages in respect of the Diet’s failure to implement legislation legalizing same-sex marriage, which they argued was unlawful under Article 1(1) of the State Redress Act.

Article 24 of the Constitution
Article 24(1) provides that “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”. The Plaintiffs argued that this article should be interpreted to afford the same freedom of marriage enjoyed by heterosexual couples and guaranteed by the Constitution to same-sex couples. While the Court acknowledged that social acceptance and awareness of same-sex marriage is evolving — pointing to the legalisation of same-sex marriage abroad and the implementation of partnership systems by local governments — it highlighted public opinion polls in Japan which demonstrated conflicting views on same-sex marriage. Because of this opposition, the Court concluded that same-sex marriage has not yet gained social recognition to the same extent as opposite-sex marriage, and that the term “marriage” in Article 24(1) could therefore not yet be interpreted as including same-sex marriage. As such, the Court found that the Provisions do not violate Article 24(1) of the Constitution.
Article 24(2) provides that “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”. The Plaintiffs argued that Article 24(2) requires the Diet to create a legal system focusing on individual dignity and the essential equality of both sexes. The Court acknowledged that same-sex couples are significantly disadvantaged by the lack of legal recognition of their relationships, and highlighted that refusing same-sex couples the benefits of the marriage system and the means to legally form a family undermined their individual dignity and put the Provisions in a state of violation of Article 24(2). However, the Court concluded that the Provisions do not violate Article 24(2) because the formation of the marriage system is left to the discretion of the Diet. The Court emphasized that the Diet should take steps to rectify this violation of individual dignity.

Article 13 of the Constitution
Article 13 provides that “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.” The Plaintiffs argued that the Provisions infringed on their right of personal autonomy to form a family and the freedom of marriage, thereby violating Article 13. The Court acknowledged that many public and private benefits can only be obtained by being recognized publicly as a family through marriage. The Court also stated that the choice of marriage partner is a moral interest which should be respected for same-sex couples. However, the Court declined to interpret this interest as a constitutional right, and thus found that the Provisions do not violate Article 13.

Article 14(1) of the Constitution
Article 14(1) provides that “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.” The Plaintiffs argued that the Provisions violate this right to equality on the basis that they allow for differential treatment in respect of marriage based on sexual orientation. The Court agreed that such a difference in treatment existed but that such treatment was on reasonable grounds because the socially accepted view of marriage was still that it was between a man and a woman. As such, the Provisions and differential treatment do not violate Article 14(1) of the Constitution.
Article 1(1) of the State Redress Act
The Plaintiffs argued that the Diet’s failure to enact legislation legalising same-sex marriage was unlawful under Article 1(1) of the State Redress Act. Because the Court did not find the Provisions to be in violation of the Constitution, it concluded that the failure of the Diet to take legislative measures to allow same-sex marriage was not illegal under Article 1(1) of the State Redress Act.

The Court’s acknowledgment that the Provisions on their face are in a state of violation of Article 24(2) of the Constitution is yet another strong marker in the fight for LGBTQ+ equality in Japan. The recognition of the harm caused by a lack of legal recognition of same-sex couples’ relationships and the Court’s call for legislative action sends a further message to the Diet and the nation about the steps that must be taken to help same-sex couples realize their place in Japanese society.

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