On 14 March 2024, the Sapporo High Court issued a ruling that the non-recognition of same-sex marriage under the Civil Code and the Family Register Act of Japan (the “Provisions”), is unconstitutional and should be addressed as an urgent issue by the Japanese government. Following a number of similar recent rulings, this is the highest-level court in Japan to so far recognize this unconstitutionality.
We are grateful to LLAN members from, Ashurst, Clifford Chance, Freshfields Bruckhaus Deringer, DLA Piper, Herbert Smith Freehills, Mori Hamada &Matsumoto, Nagashima Ohno & Tsunematsu, Oh-Ebashi LPC & Partners, Pillsbury Winthrop Shaw Pittman, and Simpson Thacher & Bartlett who prepared the translation and summary of the Sapporo District Court Ruling.
Background
A group of homosexual couples (the “Appellants”) brought a claim against Japan in respect of the Provisions, claiming that they violate Articles 13, 14(1), 24(1) and 24(2) of the constitution. The Appellants argued that the Diet’s failure to legislate on the Provisions constitutes a legislative omission and has infringed their freedom of marriage. An English summary and full translation of the Sapporo District Court which acknowledged the violation of Article 14(1) are available here (http://llanjapan.org/news/1701).
Violation of 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 Appellants argued that the Provisions unjustly infringe on their freedom of marriage with persons of the same sex, or that it unjustly infringes on their freedom of sexual orientation, which is the basis of freedom of marriage with persons of the same sex.
Violation of Articles 24(1) and (2) 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 Appellants argued that this should be interpreted to allow same-sex couples the same freedom of marriage as heterosexual couples.
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 Appellants argued that Article 24(2) requires the Diet to create a legal system focusing on individual dignity and the essential equality of both sexes.
Violation of Article 14, paragraph 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 Appellants argue that the non-recognition of same-sex marriage constitutes such a form of discrimination, without reasonable grounds perpetuating such inequality.
Conclusion
(1) Violation of Article 13 of the Constitution
The Court stated that it cannot immediately be decided that Article 13 provides that sexual orientation and freedom of marriage between same-sex couples fall under personal rights, therefore the Provisions are not plainly unconstitutional. However, liberty of sexual orientation and freedom of marriage between individuals are important legal interests which should be taken into account when considering the legislative discretion of the Diet under Article 24.
(2) Violation of Article 24 of the Constitution
The Court stated that in interpreting laws, it is necessary to consider the purpose of such laws and not solely their wording. The Court decided it was important that marriage between same-sex couples be guaranteed to the same extent as between heterosexual individuals. Whilst it is necessary to consider the appropriate implementation system, there is no reasonable ground for not allowing homosexual marriage at all, and therefore the Provisions are in violation of Article 24.
(3) Violation of Article 14(1) of the Constitution
The Court stated that reasonable grounds should be determined in the same way as for Article 24. The Court decided that the non-recognition of same-sex marriage under the Provisions is discriminatory, and that there are no reasonable grounds for such discrimination, and therefore the Provisions violate Article 14(1) of the Constitution.
(4) Failure to amend or abolish the Provisions
Despite the unconstitutionality of the Provisions and the need for legislative action, the Court acknowledged that there are many diverse ways to enact same-sex marriage law which must be subject to a period of discussion. Therefore, The Court did not hold that the Diet had neglected to amend or abolish the Provisions for unduly long and without justification, and on this basis dismissed the Appellant’s demands for compensation. The Court noted that it may be desirable, however, that the Diet treat this as an urgent issue and respond as soon as possible.
