In recent decades, same-sex marriage has become legal in many countries, including the United States, Canada and parts of Europe.
In Japan — starting with Tokyo’s Shibuya and Setagaya wards in November 2015 — municipal governments have begun issuing certificates that recognize same-sex unions as being equivalent to marriage, granting couples rights in such areas as hospital visits and apartment rentals. But same-sex couples are still unable to legally wed.
Mary Bonauto, an American lawyer who was a key player in the nationwide legalization of same-sex marriage in the United States, visited Tokyo earlier this month at the invitation of lawyers pushing for legislation to make that happen in Japan as well.
Bonauto, arguing that municipal partnership certificates are not enough, urged Japan to take further steps in embracing marriage rights. The certificates issued by municipalities are only “an acknowledgement that these couples and families exist,” Bonauto said in an interview with The Japan Times. “An acknowledgement is really different from protection.”
She compared the certificates to the system of domestic partnerships in the United States — a limited form of partnership usually determined by local jurisdictions.
In June 2015, same-sex marriage became a constitutional right in the United States after a landmark Supreme Court case. Bonauto, a civil rights project director for GLBTQ Legal Advocates & Defenders (GLAD) since 1990, was one of the lawyers who successfully argued the case before the high court. She was also lead counsel in a case that made Massachusetts in 2004 the first state to grant same-sex couples the right to marry.
“It has made a big difference, obviously, in people’s lives. You could imagine being a legal stranger to suddenly being a family makes a big difference,” Bonauto said.
In May, Taiwan’s constitutional court declared that same-sex couples have the right to legally marry, the first such ruling in Asia.
In Japan, Article 24 of the Constitution states that “marriage shall be based only on the mutual consent of both sexes.”
Bonauto was invited to come to Japan by members of Lawyers for LGBT & Allies Network (LLAN), a Japan-based group fighting for marriage equality, to give advice on how Japan might go about legalizing same-sex marriage.
Bonauto praised the spirit of the Constitution, saying it offers Japan “the same kind of strong guarantee for equality and for liberty that has … been essential in all the other marriage fights in other parts of the world.”
“I find that very powerful, because what it means is you can’t just count on the way things have been and keep doing things the same way without thinking about the fact that we have gay people, and others,” Bonauto said.
Hiroki Inaba and Kozo Sasaki, board members of LLAN, believe that while the Constitution guarantees freedom of marriage, civil and family codes must be amended to legalize same-sex marriage.
Inaba argues that the intent of Article 24 was to free Japanese women who were traditionally forced by their fathers to marry against their will. He believes it is highly unlikely that same-sex marriage was a factor being considered when the Constitution was drafted.
While the “mutual consent of both sexes” clause might appear to limit marriage to a union between a man and a woman, Sasaki said each article of the Constitution should be read based on its basic principle guaranteeing fundamental human rights, and interpreted in a way to meet its “value of a higher order.”
As an example, he referred to a 1978 Supreme Court ruling that said the Constitution shall guarantee fundamental human rights to non-Japanese to some extent, even though the original text refers only to the rights of kokumin (citizens).
In 2015, a group called Lawyers for the Equal Marriage Petition submitted a petition seeking human rights relief to the Japan Federation of Bar Associations. The petition said the ban on same-sex marriage is “an infringement on the human rights” of those who are seeking such unions, demanding that the JFBA recommend that the prime minister and justice minister submit a same-sex marriage bill to the Diet, and that lawmakers of both houses pass it.
Bonauto, who met with JFBA officials during her visit, said that with the Tokyo Olympics and Paralympics coming up, now is a great chance for Japan to improve people’s awareness of the importance of diversity.
“It’s an opportunity for Japan, absolutely … to recognize the diversity within Japan. That includes LGBT citizens,” Bonauto said. “If you’re going to make athletes from around the world feel welcomed, including the gay ones, it’s a great opportunity to do the same in Japan.”