TOKYO – A Japanese court ruled on Wednesday that the country’s failure to recognize same-sex marriages was unconstitutional, a historic decision that could be an important step in legalizing unions across the country.
The decision, handed down by a district court in the northern city of Sapporo, came in a civil suit against the Japanese government by three same-sex couples. Their unions’ lack of recognition, they said, unjustly cut them off from services and benefits granted to couples, and they sought compensation of about $ 9,000 per person.
The couples argued that the government’s failure to recognize same-sex unions violated the constitutional guarantee of equality before the law and the prohibition of discrimination regardless of sex.
The court agreed, writing in its ruling that laws or regulations that deprived gay couples of the legal benefits of marriage constituted “discriminatory treatment without a rational basis”.
But the court refused to award compensation to couples, making a somewhat complicated argument that the government could not be held responsible because the issue of same-sex marriage has only recently entered Japanese public discourse.
Alexander Dmitrenko, a Canadian lawyer residing in Tokyo who leads a nonprofit group that advocates for equality in marriage, called the declaration of unconstitutionality “a remarkable and unique achievement”, saying Japanese courts are typically respectful of lawmakers.
“In the eyes of the Japanese public, this decision should underline that gay and lesbian couples are not treated equally in Japan,” he said.
The decision will not, however, change the law. Same-sex marriages will be recognized in Japan only if Parliament passes legislation, said Dmitrenko. Lawmakers have repeatedly refused to accept such a bill.
Still, activists saw the court’s decision as an important step in breaking down barriers to normalizing gay marriage in Japan, the only country in the Group of 7 that has not legalized same-sex unions.
Unions are not explicitly prohibited in Japan, but they are not recognized by the national government or by most localities. In recent years, some local governments have taken steps to provide gay couples with certificates recognizing their marriage, but the documents have little legal or practical value.
National authorities have long argued that their position is supported by a clause in the country’s constitution that stipulates that marriage can only take place with the consent of both sexes, a clause that was intended to prevent Japan’s once common practice of arranged marriages.
The Japanese public remains divided in their attitudes on the subject. On the one hand, the idea of same-sex marriage enjoys widespread popular support. In a 2019 survey by advertising giant Dentsu, almost 80% of respondents aged 60 and under said they support unions.
Even the country’s notoriously rigid business community has begun to embrace the notion of equality in marriage, marketing products to gay couples and improving protection for employees.
At the individual level, however, many gay men still hesitate to come out because of the fear of discrimination on the part of a society that is infamous for its often intense pressure to conform.
For plaintiffs, Wednesday morning was an emotional roller coaster. The first headlines about the decision highlighted the court’s rejection of claims for damages, causing a moment of deep anxiety, one of the plaintiffs, Ryosuke Kunimi, said at a news conference later in the day.
But when he saw the rest of the decision, he said, “I couldn’t help my tears.”
Same-sex couples have long thought that “discrimination was natural, that there was nothing we could do about it,” he said, adding that the court’s decision clearly showed that “this is not true”.
The couples filed the lawsuit in February 2019 as part of a broader national campaign to pressure the Japanese government to recognize same-sex marriage. Another 10 couples filed similar lawsuits on the same day in three other courts across the country, and another couple filed a similar lawsuit in the city of Fukuoka. Decisions in these cases are expected later this year.
Wednesday’s decision is likely to have a positive impact on the outcome of these cases, Takeharu Kato, one of the lawyers representing the couples, told reporters.
The other actions were discussed using language almost identical to that heard in Sapporo, he said, adding that “of course, we will refer the decision to other courts as evidence”.
In the meantime, the plaintiffs’ legal team plans to appeal the court’s decision to deny damages, Kato said, adding that “we want to keep the pressure on the government”.
Although the couples said they were satisfied with Wednesday’s decision, they expressed caution about the road ahead. The decision may face legal challenges. Ultimately, they will need Parliament to abandon its long-standing opposition.
Activists will continue to pursue the case “until the Supreme Court,” said Makiko Terahara, director of Marriage for All Japan, a non-profit organization that has taken the lead in marriage equality cases.
At the same time, she said, the campaign will increase pressure on Parliament “to amend the law to allow same-sex marriage as soon as possible”.
Lawmakers “are obliged to respect the Constitution,” added Ms. Terahara. They “cannot allow the current situation, which is clearly a violation of the Constitution, to continue.”