Plaintiffs and their lawyers hold a press conference on October 30 following the Tokyo High Court ruling on their same-sex marriage lawsuit. (©Sankei by Katsuyuki Seki)
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The Tokyo High Court has ruled that provisions in the Civil Code that do not recognize same-sex marriage are unconstitutional. Similarly, other related laws that fail to recognize same-sex marriage are also in violation.
The decision must be condemned. It is an unjust ruling that could destroy the institution of marriage, the foundation of our society, which is based on the premise that marriage is between a man and a woman.
The lawsuit in question was filed by seven same-sex couples, who sought a total of ¥7 million ($46,000) in damages from the government. Six same-sex couples had filed lawsuits in five separate district courts.
The Tokyo ruling follows an earlier ruling by the Sapporo High Court. According to the Sapporo court, also, prohibiting same-sex marriage is unconstitutional. However, in that case, the claim for official compensation was dismissed due to the lack of a unified decision by the Supreme Court.
What the Tokyo Ruling Says
Provisions not recognizing same-sex marriage violate Article 14, paragraph 1 of the Constitution, stated the Tokyo court. That section of the Constitution provides for equality under the law. Such provisions also violate Article 24, paragraph 2 of the Constitution, which states that in "matters of marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."
The court went so far as to say that only allowing marriage between men and women "is discriminatory treatment that is not based on rational grounds."
Purpose of the Marriage System
Meanwhile, the government has argued that the purpose of the marriage system is to provide legal protection to relationships in which a man and a woman live together while giving birth to and raising children. This is the natural perspective of a society that has been formed by its long history. To assert otherwise seems bizarre to say the least.
It is also unreasonable to cite Article 24, paragraph 2 of the Constitution to interpret current laws as "unconstitutional." The first paragraph of the same article clearly states:
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.
Here it clearly mentions both genders.
Naturally, the paragraph immediately following this also concerns marriage between a man and woman. As the government contends, the Constitution does not anticipate same-sex marriage. Consequently, it is reasonable to think that there is no room for constitutional issues to arise regarding it.
Opinion Polls are Not Constitutional Law
The court noted that various opinion polls show growing support for same-sex marriage among the public. It also observed a "notable rise" in social acceptance for giving same-sex couples legal protections equivalent to marriage. However, if that is the case, the country should be discussing amending the Constitution. As it stands, its drafters never imagined the possibility of same-sex marriage.
Furthermore, the ruling called for legislation to be enacted that would contain provisions covering "multiple options" distinct from heterosexual marriage.
Of course, steps should be taken to eliminate prejudice and discrimination against sexual minorities, including homosexuals. However, the protection of such rights should be separated from discussions of the nature of marriage and the family.
Provisions on marriage and family in the Civil Code and other laws are in fact traditions and customs given legal form. Careful discussion and public agreement should precede any drastic changes to them.
RELATED:
- Same-Sex Marriage Should Not Be Dictated by Wise Men in Black Robes
- EDITORIAL | Sapporo Court's Same-Sex Marriage Ruling is Opportunism
- The LGBTQ Legislation Passes in Japan and It Angers Everyone
(Read the editorial in Japanese.)
Author: Editorial Board, The Sankei Shimbun
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