It’s time for the nation to squarely face and find an answer to the question of whether same-sex couples should be left to suffer disadvantages because the state refuses to recognize same-sex marriage. In the first legal action of its kind, 13 lesbian and gay couples have filed lawsuits against the government charging that its refusal to accept same-sex marriages is unconstitutional. Without waiting for a judiciary decision, the government, lawmakers and other parties concerned should hold broad discussions on the issue to reach a consensus.
Social recognition of sexual minorities is increasing. According to a recent survey of 60,000 people nationwide by major advertising agent Dentsu Inc., 8.9 percent of the respondents identified themselves as either lesbian, gay, bisexual or transgender, and more than two-thirds of those polled were familiar with the acronym LGBT. About 78 percent of the respondents indicated their approval of same-sex marriages.
Since 2001, a total of 25 countries — mainly in Europe and North America — have recognized same-sex marriage. Japan remains the sole Group of Seven country that does not allow such couples to marry. The plaintiffs in the suit filed with district courts in Tokyo, Nagoya, Osaka and Sapporo last week say that the state’s refusal to legalize same-sex marriage runs counter to the freedom to marry and equality under the law guaranteed by the Constitution, and charges the Diet with negligence for not taking the legislative action to legalize same-sex marriage.
At issue is the interpretation of Article 24 of the Constitution, which states “Marriage shall be based only on consent of both sexes” and “shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.” On the grounds of the reference to “both sexes” in the article, the government takes the position that the Constitution does not assume marriage between people of the same sex, and local government offices will not accept marriage applications by same-sex couples.
Meanwhile, nearly a dozen municipalities across the country now issue partnership certificates to same-sex couples that call for them to be treated the same as married couples. Shibuya Ward in Tokyo in 2015 became the first local government to launch such a system. While this has eased some of the difficulties confronting same-sex couples, it has no legally binding power and those municipalities remain a tiny minority.
Same-sex couples continue to face a variety of disadvantages because they cannot legally marry. They are not given the same inheritance rights as married couples when a partner dies, or covered by spousal tax deductions. They cannot signs papers consenting to medical procedures for their partners and may be denied hospital visitation rights because they are not legally a family member. A partner from abroad cannot get spouse residency status.
The plaintiffs in the lawsuit argue that Article 24 does not prohibit same-sex marriages. That provision in the postwar Constitution is meant to ensure that couples can marry based solely on their own will as individuals, whereas the prewar Civil Code required the consent of both heads of the two families. They go on to say that any restrictions on whether or who one marries infringes on the constitutionally guaranteed rights to be respected as individuals and to pursue happiness, as well as the equality of all people under the law.
Notions of family as a concept change and diversify with the times. Social recognition and understanding of same-sex couples and other LGBT people are rising. On the other hand, discrimination and prejudice against LGBT people remain deep-rooted. In the Dentsu survey, 65.1 percent of the LGBT respondents said they had not told anyone about their sexuality, pointing to the difficulty of coming out in this country. A number of conservative lawmakers in the ruling Liberal Democratic Party oppose same-sex marriage because of their traditional family values.
Last year, an LDP lawmaker came under strong criticism when she claimed in an article she had written for a monthly magazine that same-sex couples are “unproductive” because they do not bear children and questioned whether taxpayer money should be spent to support them. Another LDP Diet member said same-sex marriage is not necessary because same-sex relations are “something like a hobby.” Education minister Masahiko Shibayama told a TV program in 2015 that recognizing same-sex marriage would lead to a further decline in the number of births.
The lawsuits recently filed by same-sex couples should trigger public discussions on the issue, including what concrete actions, including legislative measures, should be taken to address the disadvantages faced by same-sex couples. If the sexual minorities suffer from irrational disadvantages, action must be taken to eliminate the problems.