Statement Calling for the Immediate Legislation to Recognize Marriage between Parties of the Same Sex Following the Sapporo High Court’s Ruling
On March 14, 2024, the Sapporo High Court ruled in its judgment that the provisions of the Civil Code and the Family Register Act which do not recognize marriage between parties of the same sex (the "Provisions") constitute a violation of Article 24 as well as Article 14, Paragraph 1 of the Constitution.
The judgment first pointed out in consideration of Article 13 of the Constitution that sexual orientation and the freedom of same-sex marriage are important legal interests that can constitute a part of a person’s personal rights, which are guaranteed as a constitutional right. With regard to "marriage", defined in Article 24, Paragraph 1 of the Constitution, the precedents have interpreted it to be limited to heterosexual marriage, using, among other reasons, the phrase "the mutual consent of both sexes" in the same provision. On the contrary, the judgement ruled that Article 24, Paragraph 1 of the Constitution purports to provide for marriage as a union of two people based on their free will, and hence guarantees same-sex marriage to the same extent as heterosexual marriage on the grounds that sexual orientation and the freedom of same-sex marriage are important legal interests pertaining to the dignity of individuals.
The judgement further ruled that in light of Article 24 of the Constitution which is interpreted to guarantee the protection of sexual orientation and the freedom of same-sex marriage standing on the dignity of individuals, the Provisions that provide for heterosexual marriage only and neither allow same-sex marriage nor offer same-sex couples any alternatives are in violation of Article 24 of the Constitution as being unreasonable and exceeding the legislative discretion of the Diet, at least at this point in time. Even though the judgement is insufficient in recognizing the freedom of same-sex marriage as an important legal interest only and not as a constitutional right, it still deserves a certain amount of praise for pointing out that the Provisions constitute a violation of Article 24 of the Constitution on the grounds that it is a matter concerning the dignity of individuals, which is a fundamental principle of the Constitution.
Moreover, the judgement ruled that even taking into account the Diet’s legislative discretion, the different treatment in the Provisions which allows marriage for heterosexual people and not for homosexual people, where the only difference between them is the difference in sexual orientations, which cannot be chosen or changed by one’s will, is unreasonable at this point in time and constitutes discriminatory treatment. On these grounds, the Provisions are also found to be in violation of Article 14, Paragraph 1 of the Constitution. This can be construed as a call for allowing all couples to marry regardless of their gender under the same marriage system.
The Japan Federation of Bar Associations (the "JFBA") has repeatedly called on the government to recognize same-sex marriage and revise the legislation related thereto immediately, since it issued its " Opinion on Marriage between Parties of the Same Sex" dated July 18, 2019. It should be taken seriously that the first high court’s judgement on same-sex marriage found a constitutional violation as above. To resolve this unconstitutional condition under which serious human rights violations are being committed on a daily basis, the JFBA calls once again on the government to immediately legislate to recognize marriage between parties of the same sex.
April 10, 2024
Reiko Fuchigami
President of the Japan Federation of Bar Associations