On May 30, 2023, the Nagoya District Court ruled that certain provisions of the Civil Code and the Family Register Act which restrict marriage to heterosexual couples violate the Constitution, whilst Japan’s current ban of same-sex marriage was held to be constitutional. The copy of the judgement (Japanese) is available here (Japanese summary). English translation of the judgement prepared by LLAN is available here. Our summary is below.
We are grateful to LLAN members from Anderson Mori & Tomotsune, Ashurst, Baker & McKenzie, DLA Piper, Mori Hamada &Matsumoto, Morgan Stanley MUFG, Morrison & Foerster, and Pillsbury who prepared these translation and summary.
Nagoya District Court Ruling on the Constitutionality of Same-Sex Marriage in Japan – Summary
Background
On 30 May 2023, the Nagoya District Court (the “Court”) published its judgment on the constitutionality of same-sex marriage in Japan – the fourth ruling in a series of five cases brought in Japan. The case concerned a same-sex couple (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 14(1), 24(1) and 24(2) of the Constitution. They also sought damages in respect of the Diet’s failure to implement legislation legalising 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. Whilst the Court disagreed that the legislative intent behind Article 24 of the Constitution encompasses same-sex marriage in the scope of “marriage,” it found that the main focus of Article 24 was to specifically apply to families, including marriage, the principles of individual dignity and the essential equality of both sexes which are fundamental democratic principles. Therefore, the Court determined that Article 24(1) does not prohibit the adoption of a legal marriage system for same-sex individuals. However, the Court refused to endorse the interpretation that the failure to extend the current legal marriage system created under the Constitution to same-sex couples violated Article 24(1). The was because the Court found that certain rules applicable to the current legal marriage system also have implications for third parties, such as the presumption of paternity, adoption, and family relationships. Simply expanding the scope of the current legal marriage system would therefore affect third parties and may require an overhaul of the entire marriage system, which would inevitably have a broad impact on the society. As such, the Court concluded 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) should be interpreted as requiring the Diet to create a legal system focusing on individual dignity and the essential equality of both sexes (rather than dictating the sex of one’s spouse). The Court acknowledged that, because of the limitations of the current legal marriage system, same-sex couples suffer serious disadvantages in that not only do they not benefit from the legal effects of marriage, but their relationship is also not recognised by public institutions, and they cannot benefit from a framework where their relationship would be adequately protected. The Court further determined that the limitation of the current marriage system to heterosexual couples goes beyond the scope of the Diet’s legislative discretion. The Court therefore found that the Provisions violate Article 24(2) of the Constitution to the extent of the above disadvantages suffered by same-sex couples.
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 and found that the differential treatment imposes a direct restriction on marriage on the grounds of sexual orientation, which cannot be chosen or modified at will. As this exceeds the Diet’s legislative discretion, the Court found that the Provisions 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. However, although the Court found the Provisions violate Article 24(2) and 14(1) of the Constitution, it also acknowledged that the awareness of the necessity of a framework for recognising same-sex marriage emerged only recently, and a significant proportion of the public still oppose same-sex marriage. As such, the Court refused to find that the Diet had failed to take legislative measures such as amending or abolishing the Provisions for a long time without justification.
Conclusion
The Court’s judgment recognising that the failure to legislate for same-sex marriage was unconstitutional is a significant step towards LGBTQ+ equality. Whilst the Court did not support the interpretation that the Constitution should extend the current legal marriage system to same-sex couples, it acknowledged that same-sex couples’ relationships are not publicly recognised and do not benefit from a framework where said relationships would be adequately protected. The recognition of such deficiencies in the current legal system in a judgment of this nature conveys a critical message to the Diet and the nation in respect of the rights of same-sex couples.
