Japan’s First High Court Says “I do!” to Same-Sex Marriage Despite Government Hesitation By: Catherine Shuler

Japan stands as the sole G7 nation without legal protections for same-sex couples.[1] However, recent court rulings have challenged the government’s ban on same-sex marriage.[2] Multiple district courts in various cities have declared the ban unconstitutional.[3] More recently and significantly, however, the Sapporo High Court, a Japanese appellate court, became the first high court to find the ban unconstitutional.[4] While the Sapporo High Court is not Japan’s Supreme Court,[5] its decision marked a significant step towards recognizing the rights of same-sex couples in Japan.[6]

            On March 14, 2024, the Sapporo High Court upheld the Sapporo District Court’s decision, finding that denying same-sex couples the right to marry is discriminatory and violates the Constitution’s guarantee of equality under the law.[7] A group of three same-sex couples, the plaintiffs,[8] originally brought their case in front of the Sapporo District Court.[9] The plaintiffs argued that Japan’s civil law violated the Japanese Constitution by failing to recognize same-sex marriage.[10] Specifically, the plaintiffs contended that the non-recognition of same-sex marriage under the Civil Code and the Family Register Act of Japan (the “Provisions”) is unconstitutional and should be addressed as an urgent issue by the Japanese government, the National Diet.[11]

            While the Sapporo District Court found that the failure to recognize marriage equality violated Article 14 of the Japanese Constitution[12], the plaintiffs appealed the court’s decision in not compensating them for their suffering.[13]The Sapporo District Court justified its decision by arguing that the National Diet had not neglected, for a long time and without justifiable reasons, to take measures to revise or repeal the Provisions, despite their unconstitutionality, because public opinion favoring same-sex marriage is a recent development.[14] Therefore, the same-sex couples appealed to the Sapporo High Court.[15]

The Sapporo High Court upheld the Sapporo District Court’s decision by first finding that the Provisions violated Article 24 of the Constitution.[16] Article 24 states that “marriage shall be based only on the mutual consent of both sexes” and that “with regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and family, laws shall be enacted from the standpoint of individual dignity.”[17]Additionally, the Court emphasized the importance of interpreting laws based on their purpose rather than solely on their language.[18] Therefore, the Court decided that under Article 24, marriage between same-sex couples should be guaranteed to the same extent as heterosexual individuals, and that there were no reasonable grounds for banning same-sex marriage.[19]

Afterwards, the Sapporo High Court upheld the lower court’s decision that the Provisions violated Article 14 of the Constitution.[20] Article 14 states that “all of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”[21] Therefore, the court determined that the non-recognition of same-sex marriage under the Provisions is discriminatory because couples of opposite sexes can marry, receive official notarization through the family registry, and enjoy legal status with various rights and duties, unlike same-sex couples.[22] Since the Court found no reasonable grounds for such discrimination, it concluded that the Provisions violated Article 14.[23]

The Sapporo High Court, however, also upheld the lower court’s decision and reasoning regarding the lack of compensation for the plaintiffs.[24] While maintaining its stance on compensation, the Sapporo High Court emphasized the need of the National Diet to treat the issue of the ban on same-sex marriage as an urgent issue and to respond “as soon as possible.”[25] Additionally, the Court stressed that “a large portion of the public accepts same-sex marriage,” along with the importance of accepting such changes in society.[26]

Despite Sapporo High Court’s strong opinion towards the National Diet, Japanese courts do not have the power to overturn current marriage laws.[27] The National Diet may continue to deny marriage status to same-sex couples unless the existing law is revised to include same-sex couples, or a new law is enacted that allows for other types of unions.[28]Yet, while 70% of the Japanese public supports same-sex unions,[29] Japan’s Prime Minister, Fumio Kishida, has maintained a cautious stance on the issue of same-sex marriage.[30] Instead, Prime Minister Fumio Kishida supports traditional family values and, therefore, has yet to disclose any plans to change or review marriage legislation.[31]

However, decisions from the Japanese courts, including the Sapporo High Court, have raised hope that the Japanese government and lawmakers will be pressured to introduce legislation legally recognizing and protecting same-sex couples.[32] For example, Nakaya Eri, one of the plaintiffs in the Sapporo High Court case, welcomed the High Court’s ruling by expressing that it “gives us hope that same-sex partners will have a right to live just like heterosexual ones as a married couple, as a family,” and that it will “pressure on the Diet to discuss and introduce legislation.”[33]Even the Sapporo High Court recognized in its ruling that it was “strongly expected” that the National Diet would eventually implement an appropriate same-sex marriage law, noting the broad public support and the desire to become the last of the G7 nations to legally recognize same-sex marriage.[34]

[1] Sakura Murakami & Kantaro Komiya, Japan’s Same-Sex Marriage Ban is Unconstitutional, High Court Says, Reuters (Mar. 14, 2024), https://www.reuters.com/world/asia-pacific/japan-high-court-says-not-allowing-same-sex-marriage-is-unconstitutional-media-2024-03-14/#:~:text=TOKYO%2C%20March%2014%20(Reuters),odds%20with%20shifting%20public%20opinion.

[2] Yamamoto Saori, Japanese High Court Says Denying Same-Sex Marriage is Unconstitutional, NHK World-Japan (Apr. 1, 2024), https://www3.nhk.or.jp/nhkworld/en/news/backstories/3179/.

[3] Mari Yamaguchi, A Japanese Court Says Denying Same-Sex Marriage is Unconstitutional and Calls for Urgent Change, AP News (Mar. 15, 2024), https://apnews.com/article/japan-lgbtq-samesex-marriage-ruling-court-f869fa7d2b22bfc1eafcd5d6a7c9d5a2.

[4] Japan: Groundbreaking Same-Sex Marriage Rulings a Long-Awaited Victory for LGBTI Rights, Amnesty Int’l (Mar. 14, 2024). https://www.amnesty.org/en/latest/news/2024/03/japan-groundbreaking-same-sex-marriage-rulings-a-long-awaited-victory-for-lgbti-rights/.

[5] See generally The Japanese Judicial System, Japan Fed’n of Bar Ass’ns, https://www.nichibenren.or.jp/en/about/judicial_system/judicial_system.html (last visited Sept. 13, 2024),.

[6] Yasuo Takao, Politics Contradict Japanese Public Opinion on Same-Sex Marriage, E. Asia F. (June 15, 2024), https://eastasiaforum.org/2024/06/15/politics-contradict-japanese-public-opinion-on-same-sex-marriage/.

[7] Saori, supra note 2.

[8] Yamaguchi, supra note 3.

[9] See generally the English translation of the Sapporo District Court’s judgment. March 17, 2021: Sapporo District Court rules Lack of Marriage Equality Violates Article 14 of the Constitution (English Translation of Court’s Decision), Law.s’ Network for LGBT & Allies (Mar. 21, 2021), http://llanjapan.org/lgbtinfo/1701 [hereinafter Sapporo District Court’s Decision].

[10] See generally Id.; see also Saori, supra note 2.

[11] The Japanese National Diet is the national legislature of Japan and is composed of the House of Representatives and the House of Councilors. Each house is composed of elected Members. Structure of the National Diet, The House of Representatives, Japan, https://www.shugiin.go.jp/internet/itdb_english.nsf/html/statics/guide/structure.htm (last visited Mar. 15, 2024); Sapporo High Court Ruling on the Constitutionality of Same-Sex Marriage in Japan, Law.s’ Network for LGBT & Allies (May 26, 2024), http://llanjapan.org/lgbtinfo/2536

 [hereinafter Sapporo High Court’s Decision].

[12] Sapporo District Court’s Decision, supra note 9.

[13] Plaintiffs were seeking 1 million yen ($6,800) each in compensation for emotional distress as a result of harm to their dignity from the Japanese government. Id.

[14] Id.; Akimitsu Ishigaki & Kazufumi Kaneko, High Court: Lack of Provisions for Gay Marriage Unconstitutional, The Asahi Shimbun (Mar. 14, 2024), https://www.asahi.com/ajw/articles/15198666.

[15] See generally Sapporo High Court’s Decision, supra note 11; see also Yamaguchi, supra note 3.

[16] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 4.

[17] The Constitution of Japan, Prime Minister of Japan and His Cabinet,https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html (last visited Sept. 13, 2024); See generally Sapporo High Court’s Decision, supra note 11.

[18] Sapporo High Court’s Decision, supra note 11.

[19] Sapporo High Court’s Decision, supra note 11.

[20] See generally the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 29.

[21] The Constitution of Japan, supra note 17. See generally Sapporo High Court’s Decision, supra note 11.

[22] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 25.

[23] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 28.

[24] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 30.

[25] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 31.

[26] See the English translation of the Sapporo High Court’s decision. Sapporo High Court’s Decision, supra note 11, at 30-31; Saori, supra note 2.

[27] Yamaguchi, supra note 3.

[28] Yamaguchi, supra note 3

[29] Murakami & Komiya, supra note 1.

[30] Takao, supra note 6; Saori, supra note 2.

[31] Takao, supra note 6; Saori, supra note 2.

[32] Karin Kaneko, Ban on Same-Sex Marriage Unconstituional, Sapporo High Court Rules, The Japan Times (Mar. 14, 2024), https://www.japantimes.co.jp/news/2024/03/14/japan/crime-legal/same-sex-marriage-ruling/.

[33] Saori, supra note 2.

[34] Sapporo High Court’s Decision, supra note 11, at 30-31; Frances Mao & Sakiko Shiraishi, Japan Same-Sex Marriage Ban Ruled Unconstitutional Again by Courts, BBC (Mar. 14, 2024), https://www.bbc.com/news/world-asia-68561968.