To Recognize Same-Sex Marriage, Court Says First Amend the Constitution

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A November 28 ruling by the Tokyo High Court determined that provisions of the Civil Code and other laws that do not recognize same-sex marriage are constitutional.

It is clear that the marriage system, which forms the foundation of society, has historically and traditionally been premised on a relationship between a man and a woman. Therefore, the court ruling is appropriate.

The lawsuit was filed by eight people, including same-sex couples and other members of sexual minorities. They sought a total of ¥8 million JPY (about $52,000 USD) in damages from the Japanese government.

The court dismissed their lawsuit, which contended that the provisions of the Civil Code and the Family Registration Act violated the freedom of marriage and equality under the law guaranteed by the Constitution of Japan.

What The Constitution States

Article 24, Paragraph 1 of the Constitution states: "Marriage shall be based only on the mutual consent of both sexes." The court ruled that this defines "a personal union between people of the opposite sex, which is a historical and traditional form of marriage." Therefore, the court concluded, "It cannot be said that same-sex couples are guaranteed freedom of marriage under the Constitution."

The court also mentioned the following phrase from the Constitution's preamble: "determined that we shall secure for ourselves and our posterity." It acknowledged that there is a definite rationale for the institution of marriage in order to maintain society. That, they suggested, is premised on men and women having and raising children.

The Tokyo High Court's ruling thus takes into account the historically-formed social mindset of the Japanese people. It interprets the Constitution in a natural and logical way.

Contrast with Other Regions' High Courts

In the appeals hearings for six similar lawsuits, it is incredulous that five separate high courts nationwide have handed down "unconstitutional" rulings.

Addressing the problem, the Supreme Court is expected to issue a unified ruling as early as 2026. In the lower courts, justifications of "unconstitutionality" featured many contradictory and unreasonable interpretations. For example, interpreting "both sexes" as instead meaning between two people. They seemingly sought to avoid the fact that the Constitution did not anticipate "same-sex marriage" when it was enacted. There was also the argument that the Constitution does not explicitly prohibit same-sex marriage.

If the current Constitution, which does not provide for same-sex marriage, is outdated, then it would make sense to amend it. Haven't the far-fetched lower-court rulings conveniently interpreted the Constitution as the judges saw fit and exceeded their roles as judges?

Tolerance and Consensus

While ruling that not recognizing same-sex marriage is "constitutional," the court also stated that in present-day society same-sex marriage is "recognized as a form of family." This topic is being debated in the Diet. Nevertheless, a careful discussion of this vital issue ー one that comes up with a consensus acceptable to the general public ー is also important.

It goes without saying that it is necessary to eliminate discrimination against sexual minorities and protect their rights. Nonetheless, it must be remembered that laws and regulations relating to marriage and family, such as the Civil Code, are the legislative expression of traditions and customs. Moreover, they are closely related to the views of family held by each and every citizen.

RELATED:

• Same-Sex Marriage Should Not Be Dictated by Wise Men in Black Robes
• Sapporo Court's Same-Sex Marriage Ruling is Opportunism

Author: Editorial Board, The Sankei Shimbun

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