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Japanese Court Rules Gay Marriage Unconstitutional by David Boos

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Japanese Court Rules Gay Marriage Unconstitutional

In an attempt to change the Japanese Constitution—which does not allow for same-sex marriage—14 same-sex couples went to court in 2019 to filed lawsuits against the government. Their complaint: violation of their right to free union and equality. 

As a result of these suits, filed in five different cities, the court in Sapporo had ruled the gay marriage ban ‘unconstitutional’ in 2021. However, a new ruling made on 20 June 2022 by the Osaka District Court contradicts the judges from Sapporo and declared the ban lawful. It reconfirmed the legal opinion that the “purpose of marriage is reproduction,” adding that “marriage is a relationship between a man and a woman to bear children and raise them together in cohabitation.”

The litigants, two male couples and a female couple, were very disappointed about the ruling. “This is awful, just awful,” said one of the female plaintiffs. The LGBTQ activist Gon Matsunaka admitted that “after the Sapporo ruling, we were hoping for the same ruling or something even better.” Another plaintiff, Machi Sakata, expressed doubts whether “the legal system in this country is really working.” They are planning to appeal the decision.

Japan’s Constitution dates from 1947 and defines marriage in Article 24 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.

Last year’s ruling in Sapporo, however, which claimed the gay marriage ban was ‘unconstitutional,’ referred to Article 14 of the Constitution, which requires equal laws for all Japanese citizens:

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.

While full marriage rights are not granted to same-sex couples, many cities, including Osaka, grant official recognition certificates to gay couples. These certificates allow for same-sex couples to partake in certain marital benefits (such as hospital visitation rights), but bar them, for instance, from spousal inheritance.

The court ruling in Osaka went on to encourage public debate about expanding the rights of homosexual couples. The court specified that “from the perspective of individual dignity, it can be said that it is necessary to realise the benefits of same-sex couples being publicly recognised through official recognition.” Following “public debate on what kind of system is appropriate for this,” the court added, “it may be possible to create a new system” that recognizes the interests of same-sex couples. 

So, while LGBTQ activists experienced the ruling as a setback, it may only be a temporary bump in the road—if parliament follows the advice of the judges in Osaka.

David Boos is an organist, documentary filmmaker, and writer for The European Conservative and other publications.

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