Momentum is building to start serious discussions about legalizing same-sex marriage, a concept not officially recognized in Japan. A series of lawsuits have been filed by gay and lesbian couples seeking damages from the government, charging that refusal to grant same-sex marriage runs counter to the freedom of marriage and equality as guaranteed by the Constitution. A court ruling on a separate case earlier this month determined that domestic partners of the same sex should be covered, to a certain extent, by the same legal protections afforded to common-law marriages in this country.
However, lawmakers remain slow to even talk about whether same-sex marriage should be legalized. The government maintains that same-sex marriages are not assumed to take place under the Constitution. But as forms of families diversify, social values and common ways of thinking change. Same-sex couples meanwhile face a host of disadvantages because their partnerships are not legally recognized as marriage. It’s time that political discussions are launched as to what can be done, including legislative steps, to relieve them of the disadvantages.
Since the Netherlands became the first nation to recognize sex-same marriage in 2001, roughly 30 countries around the world, mainly in Europe, have come to legalize marriage between couples of the same sex. In May, a gay couple in Taiwan registered their marriage as the first in Asia after the island legalized same-sex marriage.
In Japan, the government holds that “both sexes” mentioned in Article 24 of the Constitution — which states that “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” — refer to men and women, and that therefore the Constitution does not assume the existence of same-sex marriage. It has maintained that position in rebutting the charges by same-sex couples in their damages suits.
A recent ruling by the Mooka branch of the Utsunomiya District Court challenged that interpretation of Article 24. In handing down a decision on a damages suit between two women whose partnership broke apart, the branch court said the Article 24 reference to marriages based on the consent of “both sexes” was made just because same-sex marriage was not assumed when the Constitution was instituted in 1947, and that the provision cannot be interpreted as justification for denying same-sex marriages.
In awarding damages to a woman in her 30s who broke up with her same-sex partner because of infidelity, the branch court recognized that their relationship — they lived together since 2010, obtained a marriage certificate in the United States and had a wedding ceremony in Japan, until they broke up in 2017 — effectively amounted to common-law marriage even though same-sex marriage is not legalized in this country. Therefore, the court ruled, their relationship deserved legal protection similar to that granted to a common-law partnership.
Although the court decision did not directly concern legalizing same-sex marriage, it noted that as people’s values and lifestyles change, the situation today does not necessarily warrant limiting marriage to unions between men and women.
People’s values about families have indeed changed significantly. In a recent survey by the National Institute of Population and Social Security Research, roughly 70 percent of some 6,000 married women said they support same-sex marriages, and 75 percent of the respondents agreed that some form of legal protection should be accorded same-sex couples. Social recognition of sexual minorities is growing. According to an earlier survey of 60,000 people 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.
Moves are afoot by local governments and businesses to grant recognition to same-sex couples. Today, more than 20 municipalities across the country issue partnership certificates to same-sex couples that call for them to be treated the same as married couples. Tokyo’s Shibuya Ward became the first to launch such a system in 2015. But such a certificate has no legally binding power and those municipalities remain a tiny minority. A growing number of companies have meanwhile begun to recognize an employee’s same-sex partner as a spouse and permit taking nursing care and child-rearing leave on that basis.
Still, same-sex couples face various disadvantages because they cannot legally marry. They are not given the same inheritance rights granted to married couples when a partner dies, or covered by spousal tax deductions. They cannot sign papers consenting to medical procedures for their partners and may be denied hospital visits because they are not legally a family member. A partner from abroad cannot get spouse residency status. Lawmakers should start listening to what same-sex couples have to say and thinking about what actions should be taken to address their needs.