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In 2013, after the U.S. Supreme Court effectively legalized same-sex marriage in the United States, I asked a friend who lived in California if he planned to marry his long-term partner. My friend said that he would but only because his partner wanted to. He himself didn’t seem to care, since California already guaranteed legal protections for domestic partnerships and he wasn’t particularly enamored of the institution of marriage. However, if the man he loved had his heart set on it, then there was nothing he could do about it.

I thought about my friend when I read about the two recent Japanese court decisions regarding same-sex marriage and how these decisions could make it legal in Japan — the only Group of Seven country where such unions are not legal. A number of local governments have enacted ordinances that allow for LGBTQ couples to register as domestic partnerships in order to receive some of the benefits that married couples enjoy, but without a national law that normalizes wedlock for LGBTQ couples, such ordinances can only do so much.

What’s meaningful about these court decisions is that while they recognize that Japan shouldn’t deny LGBTQ couples the same benefits that married heterosexual couples enjoy, such matters must be legislated. A March 18 editorial in the Sankei Shimbun disputed the decision in one of the cases, in which three same-sex couples sued the state in Sapporo District Court, saying their inability to marry violated Article 14 of the Constitution, which guarantees equal protection under the law. The court rejected the plaintiffs’ claim for compensation but said that denying them the right to marry did indeed violate the Constitution. The plaintiffs deemed this a victory, since the compensation gambit was merely a means of getting the court to address the constitutionality question.

The Sankei Shimbun says that Article 24 of the Constitution, which guarantees the right of anyone to marry whomever they want, defines marriage as an agreement between “both sexes,” so that right doesn’t extend to same-sex unions. The newspaper interprets the term “ryōsei” (“both sexes”) as meaning one man and one woman, although the court in the Sapporo case — whose presiding judge, by the way, was a woman — said that interpreting Article 24 to mean that it denies legal protections for same-sex partners who enter into lifelong unions is “not convincing.” The Sankei Shimbun argues that it is obviously the purpose of the “marriage system” in Japan to provide legal protections for cohabiting male-female partnerships and their offspring. That is the “natural way of thinking,” and while the editorial says it is necessary to do away with discrimination and bigotry toward sexual minorities, legalizing same-sex marriage can only be done by amending the Constitution.

The matter became even more fraught with a decision handed down by the Supreme Court’s petit bench on March 17 that upheld a lower court decision to award damages to a woman who was suing her female partner for adultery. The Civil Code allows for individuals to demand compensation from spouses if those spouses cheat on them. The court’s decision to award compensation in this instance means that it recognizes same-sex unions as at least common law arrangements, which enjoy many of the same legal protections that registered marriages do.

A lower court had already addressed the matter of Article 24, saying that while it seems to define marriage as being a union of two people of different sexes, it does not necessarily mean that two people of the same sex cannot marry. The defendant in the case, who, as it happens, cheated on her wife (they were married legally in the United States in 2014) with the transgender woman who previously provided the sperm for their child, argued that if legal protections were granted to same-sex couples, marriage conventions based on the current system would fall apart. That’s an extraordinary position for a person in a same-sex marriage to take, since it seems to say that LGBTQ couples should not be allowed to marry while basing that position on a supposition that can’t be proven unless same-sex marriages were legalized.

While the Supreme Court dismissed this argument and the court in Sapporo declared that the refusal to recognize same-sex marriage is unconsitutional, it doesn’t mean the law is going to change. According to the Asahi Shimbun, the ruling Liberal Democratic Party has “sealed” any further discussion of the matter within the party itself, thus making it difficult for it to advance to the legislature. This is pretty much the same strategy the party has adopted with regard to the issue of allowing married couples to use different surnames, which many LDP members oppose for the same reason they oppose same-sex marriage — they think it undermines the integrity of the so-called traditional family.

The difference is that no court has declared that the law stating married couples must have the same surname is unconstitutional, which brings up an interesting theoretical situation. If, as some scholars once predicted, same-sex marriage becomes law before elective separate surnames do, will same-sex couples happily bow to the state and unify their surnames? It’s a question that gets to the heart of the government’s control over the family structure. Although some conservatives hate the idea of legalizing same-sex marriages, legitimizing them would reinforce the institution of marriage, something that is very important to them. It’s also why my California friend was hesitant about getting married. He saw state-sanctioned matrimony as a pillar of the partriarchy that had once disenfranchised him as a gay man. Who needs marriage if equal protections are guaranteed for all social and economic circumstances?

But he put those misgivings aside for the sake of sentiment. In that regard, it’s no surprise that a substantial majority of Japanese people are in favor of legalizing same-sex marriage. Nobody wants to stand in the way of true love.

See www.philipbrasor.com for addenda to Media Mix contributions.

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