Japan court recognises same-sex marriage as ‘unconstitutional’

KEY TAKEAWAYS

• On Wednesday a Japanese Court for the first time in a landmark verdict ruled that the country’s failure to recognise same sex marriage is “unconstitutional”.
• The court was in favour of the couples who held the government responsible for violating their right to inequality as guaranteed under Article 14 of the Constitution.
• The lawsuit revolved around the interpretation of marriage in Article 24 which states that, "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."

INTRODUCTION

Japan was the only among the G7 countries that didn’t recognize same-sex marriage. This is the first time that the Japan Court questioned the constitutionality of same-sex civil unions.

In February 2019, 13 same-sex couples filed lawsuits filed lawsuits across 4 districts of Japan stating that denial of same-sex marriage violates their right to equality. Three couples in Hokkaido filed a lawsuit claiming 1 million yen each for psychological damage for not being able to marry legally, the Sapporo Court however denied their compensation claim.

Judge Tomoko Takebe in the landmark ruling favoured the couples who claimed the violation of article 14, describing government’s failure to implement legal measures to offer “even a degree” of marital benefits to same-sex couples.
The lawsuit revolved around article 24 of the constitution which interprets marriage as, "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”.

However, Judge Takebe agreed with the government saying there was no violation of Article 24 as it was related to heterosexual marriage and did not include same-sex marriage.

Some parts of the country in Japan issue “partnership certificates” that grant some rights to same-sex couples like helping them with rented places to live and hospital visitation rights however they still don’t get the same legal rights given to heterosexual couples.

Homosexuality has been legal in Japan since 1880 and the country is found to be relatively liberal as compare to other Asian countries yet the social stigma is still prevalent in the country.

This is an historical judgement in Japan as it proves to be a symbolic victory for the LGBTQ community. Ryosuke Kunimi, one of the plaintiff said, "The chief judge said that the discrimination based on the natural difference of sexuality is a violation of Article 14. I could not stop crying." Journalist and LGBTQ rights expert, Yuji Kitamaru said that the judgement was “well crafted and very strategic” and laid “one of the first legal foundations against anti-LGBTQ theories”.

FURTHER DETAILS

Japan’s constitution defines marriage as “the mutual consent of both sexes” with “equal rights of husband and wife as a basis”. However the government says this precludes same-sex marriages to which the plaintiff’s lawyer argued that the constitutional provision ensuring right to equality is violated, the Kyodo news agency reported. Katsunobu Kato, Chief Cabinet Secretary said the government doesn’t agree that civil law on marriage is unconstitutional but will “carefully watch” the outcomes of the ongoing cases. The trial drawn 153 people who queued outside the courtroom to witness the ruling. The plaintiffs’ lawyers were surrounded by rainbow flags declaring the ruling “a huge step towards equality in marriage”.

A survey by advertising agency Dentsu in 2018 found that more than 78% of people between ages 20 and 59 approve same-sex marriage. 147 businesses and organisations have also signed up to a campaign to legalize same-sex marriage. Business groups say Japan’s ban on same-sex marriage has affected their hunt for top global talent and it makes foreign firms difficult to attract highly skilled workers in an increasingly international economy.

Japan director for non-profit Human Rights Watch(HRW), Kanae Doi said that the ruling alone would not legalize same-sex marriage and it would require a Supreme Court ruling which could take several years. She also said that Wednesday’s “landmark” ruling was significant and was a step towards legalising same-sex marriage.

‘Partnership’ Certificate

While Japan has a few assurances for sexual minorities, numerous equivalent sex couples battle to rent apartments together and are even restricted from medical clinic visits.

A November survey by the Yomiuri paper discovered 61% of individuals in Japan are comprehensively for same-sex marriage, with 37% against.The country's 1947 post-war constitution says that that “marriage shall be only with the mutual consent of both sexes”.

The public authority says this implies same-sex marriage is "not foreseen" in the constitution or common law.

In any case, legal advisors for the offended parties and other lawful specialists contend the language of the constitution is just intended to guarantee fairness between planned mates and forestall constrained relationships.

In a proclamation, they said they trusted the decision would provoke parliament to take up the issue.

However, legal advisors for the offended parties and other legitimate specialists contend the language of the constitution is just intended to guarantee correspondence between planned mates and forestall constrained relationships.
In a statement, they said they trusted the decision would incite parliament to take up the issue.

“We think it is necessary to urge parliament to take swift legal measures by clarifying the current illegal situation, which they have neglected and have not rectified despite their legal duty,” they said.Courts in Tokyo, Osaka and Fukuoka are as yet considering cases recorded by other same-sex couples on the issue.

But lawyers for the plaintiffs and other legal experts argue the language of the constitution is only meant to ensure equality between prospective spouses and prevent forced marriages.
In a statement, they said they hoped the ruling would prompt parliament to take up the issue.

“We think it is necessary to urge parliament to take swift legal measures by clarifying the current illegal situation, which they have neglected and have not rectified despite their legal duty,” they said.
Courts in Tokyo, Osaka and Fukuoka are still considering cases filed by other same-sex couples on the issue. Attorneys for the Sapporo offended parties said they were cheerful that "perfect victories" in those cases would include extra pressing factor officials.

Verifiably, Japan was extensively lenient toward homosexuality, with archived instances of samurai fighters during primitive occasions having male darlings. However, as the nation industrialized and modernized from the late nineteenth century, Western biases were progressively received. In a milestone advance in 2015, Tokyo's bustling Shibuya locale began giving representative "partnership" certificates to same-sex couples.

Some other nearby governments have gone with the same pattern, and corporate Japan is additionally giving indications of moving towards acknowledgment. Be that as it may, not all LGBT couples in Japan live in zones with such certificates- and surprisingly the individuals who have them discover they are once in a while not recognised. One of the offended parties in the equivalent sex marriage claims passed on in January of a brain haemmorhage, and reports said the doctor would not mention to his partner what wasn't right as he was not a lawful relative. Taiwan is as of now the lone spot in Asia with marriage fairness, having made the remarkable stride of authorizing same-sex couples in 2019.

ENDING NOTE

Similar cases are currently being heard in four other courts and this ruling may indirectly influence their outcomes by changing public opinion, said Gon Matsunaka, director of activist group Marriage for All Japan, reported Reuters.The LGBTQ community in Japan welcomed the court’s ruling. “I’m really happy,” said Matsunaka. “Until the ruling was announced, we didn’t know this was what we’d get and I’m just overjoyed.”
(Human Rights Watch) HRW, along with LGBTQ organizations, has been calling on Japan to adopt an Equality Act ahead of the Tokyo 2021 Olympics.Masayuki Tanamura, a professor on family law at Waseda University, called the ruling "groundbreaking" and an "appropriate judgement" based on changes in societal awareness, noting some companies also offer health benefits for LGBT couples.