By**Nobuhisa Ishizuka
In relatively quick succession in 2024, most recently on 30 October, two prominent high courts in Japan — the Tokyo High Court and the Sapporo High Court — issued rulings recognising the constitutional right of same-sex couples to marry. The cases are a partial culmination of continuing litigation concerning an issue that appears to be headed to the nation’s Supreme Court.
The United States attempted to transform the social structure of Japan after the Second World War through the individual dignity, equal protection and marriage equality provisions of the postwar constitution. Japan has since struggled to adapt its concept of family, which has historically formed the heart of its national identity, to changing social and political norms. Japan remains one of only two G7 nations to not formally recognise same-sex marriage, alongside Italy.
This struggle is reflected by recent cases addressing the rights of women to retain their surnames after marriage — held by the Supreme Court to not be constitutionally protected — and a ban on remarriage within a specified time period after divorce. The remarriage ban was intended to clarify the paternity of children born after remarriage, a concept upheld by the Supreme Court and eliminated only in 2024 by legislation. In each case, the court cited the need to clearly define the family within existing legal frameworks. Same-sex marriage sits squarely within the same rubric of cases.
In a country where plaintiff activism has historically been characterised by local, relatively isolated claims for redress in the face of government inaction, nationally coordinated litigation to address broad social issues is a recent phenomenon. The most recent claims by plaintiffs in the marriage-related cases, filed in different courts across the country on Valentine’s Day 2019, reflect societal values that are beginning to align Japan with more than 30 other countries that have legalised same-sex marriage. The majority of public opinion now favours same-sex unions.
According to the Sapporo High Court decision, 260 of 1700 municipalities throughout Japan, covering about 65 per cent of the population, have established registered partnership systems that grant limited spousal rights to same-sex couples. And a growing number of companies have adopted policies recognising such rights.
The Japanese government has been closely following these developments. Apart from the social impact, this issue has clear implications for the country’s position in the global marketplace and its attractiveness to an international labour pool that increasingly reflects similar shifts in societal attitudes. Foreign nationals, including those whose unions have been recognised in their home countries, are among the marriage-related plaintiffs.
Still, the Japanese government’s position is that same sex marriage would establish a ‘right to self-determination’ that is not constitutionally guaranteed because it would establish ‘a new legal system that goes beyond the framework of the existing legal system’. According to this view, same-sex marriage changes the definition of a family in a manner inconsistent with ‘the importance of reproduction and child-rearing’ to the marital institution.
A growing number of courts in Japan, including two high courts, have attempted to bridge the gap between traditional family orthodoxy and social change by recognising same-sex couples’ freedom to marry. Affirmation of this right by thehigh courts is a significant development in the context of five lower district courts splitting on the question — with the Osaka district court finding the current ban constitutional, two other lower courts upholding the ban with reservations and two finding the ban unconstitutional.
Courts in Japan are notably reluctant to overturn existing laws. As a result, constitutional litigation on social issues often takes the form of damage suits for legislative nonfeasance — in these cases, for the Diet’s failure to amend existing laws to uphold the constitution in a manner accommodating social change. This permits courts to address the constitutionality of marriage restrictions without necessarily invalidating existing laws.
This is why the Tokyo and Sapporo high courts have found the current laws unconstitutional while dismissing the damage claims. They determined that the legislature needs more time to act given the issue’s complexity and lack of clear consensus on how an alternative system should be designed. Japanese courts have declined to compel the Diet to affirmatively act on findings of unconstitutionality unless the inaction is ‘egregious and prolonged’. Current prohibitions on same-sex marriage will continue in the absence of legislative action or continuing litigation maintaining pressure for change.
The Supreme Court has acknowledged that an individual’s ‘freedom to build relationships and live in such relationships’ must be respected. A concurring opinion in the surname case stated that ‘when viewed as a legal system, the relationship of a married couple constitutes part of the family system even though it involves only two persons in form’.
With such past statements, it would be reasonable to expect Japan’s Supreme Court will look at same-sex marriage from the same perspective. It could call for more time to permit a clear and thorough public consensus to emerge and to similarly defer to the Diet for action, regardless of whether it agrees with high courts’ rulings on the substance of same-sex marriage’s constitutionality.
Nobuhisa Ishizuka is Lecturer and Executive Director of the Center for Japanese Legal Studies at Columbia Law School and a member of the Council on Foreign Relations.
https://doi.org/10.59425/eabc.1733954400
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