Ban on same-sex marriages violates human dignity: Tokyo court

The court ruled that banning same-sex marriage was in line with the constitution, reaching the same conclusion as a court in Osaka in June. PHOTO: AFP

TOKYO – Japan’s failure to allow same-sex marriages is an “unconstitutional situation”, a Tokyo court said on Wednesday, in a verdict that has been cheered by advocates as a huge step forward towards equality.

“Couples become family through the sanctity of marriage, which offers legal protection that is important from the perspective of individual dignity. This holds true for both same-sex and heterosexual couples,” Presiding Judge Momoko Ikehara said.

“The absence of such a legal system that recognises same-sex couples as a family unit is an unconstitutional situation that is a grave threat to individual dignity,” she added.

However, she dismissed a class action lawsuit brought by eight men and women aged in their 30s to 60s against the government, seeking damages of 1 million yen (S$9,850) each.

In doing so, Judge Ikehara said that the definition of marriage in the Constitution – currently one that is “based only on the mutual consent of both sexes” – was a matter for the Diet (Japan’s Parliament) to determine based on social conditions and public sentiment.

Still, the partial victory on Wednesday was cheered by the plaintiffs and supporters who unfurled rainbow flags and a banner outside the Tokyo District Court, saying that the ruling was “progress towards marriage equality”.

Among them was Ms Chizuka Oe, 61, who has been living together with her 58-year-old partner Yoko Ogawa for more than 20 years.

Ms Oe expressed relief at the verdict because it had “referred to same-sex couples as a family unit”, adding that she hoped it would spur Diet discussions.

But the issue of same-sex marriages does not appear to be high on the agenda for Prime Minister Fumio Kishida, even though Japan is the only member in the Group of Seven bloc of advanced economies to disallow such unions.

While his ruling Liberal Democratic Party has lawmakers who are in favour of same-sex marriages, such as Digital Minister Taro Kono and former defence minister Tomomi Inada, they are a minority whose voices are being drowned out in a heavily conservative party.

Wednesday’s verdict was the third in a series of lawsuits filed in five cities across the country to contest the constitutionality of the ban on same-sex marriages.

In March 2021, a Sapporo court ruled that the ban on same-sex marriages was unconstitutional, though an Osaka court in June 2022 found the opposite. Judgments in Nagoya and Fukuoka are pending.

In these cases, plaintiffs argued that the freedom of marriage must be guaranteed for lesbian, gay, bisexual, transgender, queer individuals, and that the different treatment by virtue of sexual orientation was discriminatory.

But the government said that marriage as prescribed by the Constitution was limited to those of the opposite sex.

Attitudes towards same-sex marriage differ widely between generations in Japan. A survey jointly conducted by the Mainichi Shimbun daily and Saitama University in 2021 found that 71 per cent of young people aged 18 to 29 were in favour of same-sex marriage. But the figure fell to 25 per cent among those aged 70 and above.

There is growing momentum across the country to recognise same-sex couples.

On Nov 1, Tokyo began accepting registrations for same-sex partnership certificates among its 14 million residents, becoming the ninth out of Japan’s 47 prefectures to fully implement such a programme.

Since Shibuya and Setagaya wards in Tokyo became the first out of Japan’s 1,741 municipalities to recognise same-sex partnerships in 2015, the number has grown to more than 240 municipalities.

Yet, a partnership certificate is not the same as a marriage because it is not legally binding.

While same-sex couples can jointly apply for housing loans and give consent for surgery, this is often not uniformly enforced. And unlike in a marriage, couples do not get tax deductions, are not recognised as dependents for health insurance, and cannot qualify for spousal visas.

Tokyo’s ruling came hours after the United States Senate passed a Bill to enshrine same-sex marriage rights.

In Singapore on Tuesday, a law banning consensual sex between men was repealed, but the Constitution was amended to ensure that Parliament has the right to define marriage as one between a man and a woman.

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