Plaintiffs stand in front of the Sapporo High Court following its ruling that provisions of the Civil Code that do not recognize same-sex marriage are unconstitutional. On March 14 in Sapporo. (© Sankei by Takahiro Sakamoto)
The Sapporo High Court has ruled that provisions of the Civil Code and other statutes that do not recognize same-sex marriage are unconstitutional. They violate Article 24 of the Constitution, which provides for "freedom of marriage," the court said in its ruling.
This recognition of same-sex marriage is unacceptable as it deviates from the common-sense understanding of the Japanese people. What is more, this unjust ruling threatens the destruction of the traditional family system that forms the basis of society.
Adding Words to the Constitution
Three same-sex couples residing in Hokkaido are seeking a total of around ￥6 million JPY ($39,650 USD) in damages from the Japanese government. This is the first appellate court ruling among six separate cases filed in five district courts nationwide.
Especially disturbing is the Sapporo High Court's determination of "unconstitutionality." The ruling goes so far as to assert that Article 24, Paragraph 1 of the Constitution "guarantees same-sex marriage." However, the first line of Article 24 reads, "Marriage shall be based only on the mutual consent of both sexes." That makes it clear that its stipulations apply to marriage between a man and a woman. It does not deal with same-sex marriage.
A series of district court decisions have accepted this interpretation. Even the current ruling recognizes that the text stipulates literally that, by definition, marriage involves a male and a female.
That being so, the court's argument that it meant to say that "marriage shall be between two individuals" is unreasonable. It amounts to nothing more than opportunism that ignores the actual text of the Constitution.
The ruling states that not allowing gay couples to marry constitutes discriminatory treatment. Therefore, it adds, it violates Article 14, Paragraph 1 of the Constitution, which stipulates equality for all of the people.
Interpreting Whose Public Opinion
The decision also touches upon public opinion in Japan. It states that, although some people hold negative views about same-sex marriage, they do so merely for emotional reasons.
But that is absolutely not true. As the government has contended in a series of lawsuits, the purpose of the marriage system is to provide legal protection to the relationship of a married man and woman who live together while bearing and raising children.
Elimination of discrimination against and protection of the rights of gay individuals and other sexual minorities should be considered separately from discussions about the nature of marriage and family.
Chief Cabinet Secretary Yoshimasa Hayashi's cautious stance in response to the Sapporo High Court ruling was therefore understandable. He said, "The introduction of a system of same-sex marriage is an issue that touches the basis of national life and is closely related to how individual citizens view the family."
Hasty reasoning can invite divisions in society and delay the elimination of discrimination. Realistic discussions are needed, including within local governments and companies. That is where the legal and economic disadvantages that same-sex couples suffer should be considered. It is also the best place to develop detailed measures to respond to them.
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(Read the editorial in Japanese.)
Author: Editorial Board, The Sankei Shimbun
