How the ruling party is blocking the legalization of gay marriage in Japan

“A law deemed flawed by the courts is left as it stands. We are in a state of emergency.” These were the words used by lawyer Akiyoshi Miwa at a press conference on March 25. The Osaka Court of Appeal had just handed down its verdict [in the class actions brought to demand the legalization of same-sex marriage].

In Japan, courts have jurisdiction to review the constitutionality of laws passed by parliament. But it is rare for judges to strike down as unconstitutional legislation debated and voted on in parliament. However, in the context of lawsuits calling for the legalization of same-sex marriage, five appeals courts across the country [including the Osaka court] have agreed that the current legislation is “unconstitutional.”

The Sapporo court considered that "in their daily lives, at work and in their social lives, the people concerned are hindered in their existence as human beings." The Nagoya court, meanwhile, spoke of "an attack on individual dignity." The judges all found that the current legislation, which does not recognize same-sex marriage, is detrimental to the people concerned.

In concrete terms, they are not entitled to income tax relief or to the division of assets in the event of the death of one of the spouses. They are also deprived of the sense of security and fulfillment that comes from the social recognition of sharing one's life with a partner.

Two texts of the Constitution served as the basis for the judges' decisions: Article 14, which guarantees equality before the law, and Article 24, paragraph 2, which provides that all laws relating to marriage and the family "must be promulgated in the spirit of individual dignity and fundamental equality of the sexes."

Sexual orientation is a natural disposition that cannot be changed. Refusing same-sex marriage on this basis, even taking into account Parliament's discretionary power, constitutes "discriminatory treatment," the Tokyo Court of Appeal ruled.

The government, for its part, argued that the existence of a same-sex partnership certificate in many municipalities rendered same-sex marriage superfluous. This was an insufficient solution, the judges ruled. They also highlighted the shift in public opinion, increasingly in favor of marriage for all, to support their declaration of unconstitutionality.

Regarding Article 24, paragraph 1 [another key point in the trial], which provides that “marriage is based solely on the mutual consent of the husband and wife,” the court considered that at the time it was drafted, only the hypothesis of a heterosexual couple had been considered, without excluding same-sex couples. It thus affirmed that marriage for all should be recognized, even if this is not explicitly provided for in the Basic Law.

Now it's up to the Supreme Court to decide. With Japan's judiciary having issued several rulings in favor of the rights of sexual minorities in recent years, many legal experts believe it could rule the current legislation unconstitutional.

If such a scenario were to materialize, the State would then be obliged to immediately revise the Civil Code. A senior magistrate confides:

“A Supreme Court decision could profoundly transform society. It cannot be made lightly.”

Last year, in a ruling on another case related to the rights of same-sex couples, current Supreme Court Chief Justice Yukihiko Imasaki shared his concerns. “The debates are still too shallow, and it would be premature to rush into anything.” It remains to be seen what position the highest court will take. A verdict is expected within one to two years.

The issue of homosexual rights has become a national concern over the past decade. The trigger was the introduction in February 2015 of a partnership certificate recognizing same-sex couples by the authorities of Shibuya Ward, Tokyo.

“This is hopeful news. Our country must eliminate the difficulties faced by same-sex couples in their daily lives,” declared a member of the parliamentary opposition during the Senate plenary session. In doing so, he opened the debate on the compatibility of same-sex marriage with the Constitution. Then-Prime Minister Shinzo Abe responded that the text did not provide for the recognition of same-sex marriage.

The following month, a cross-party parliamentary group was formed to consider LGBTQI issues. In February 2016, the then-ruling Liberal Democratic Party [LDP, conservative] established a special committee on sexual orientation and gender identity, chaired by former minister Keiji Furuya. He is now the leader of the parliamentary group supporting Nippon Kaigi, an ultranationalist lobby. At the committee's first meeting, he stated that efforts to enshrine same-sex marriage into law were incompatible with what they considered a healthy approach.

That same year, while drafting the outlines of a bill aimed at promoting understanding among LGBTQI people, the political party published a brochure entitled “The Position of the LDP.” It clearly stated that the fundamental principle remained that set out in Article 24 of the Constitution. “Marriage is based solely on the mutual consent of the husband and wife. The recognition of same-sex marriage therefore remains incompatible with this principle,” it read.

An LDP member who followed these discussions at the time recalls: “Our conservative supporters, like Nippon Kaigi or the Federation of Shinto Shrines [another far-right lobby], were fiercely opposed. We were afraid that if we brought up the issue of gay marriage, everything, including discussions on promoting understanding of LGBTQI people, would be blocked.”

Nine years have passed since then. In 2019, lawsuits calling for the legalization of same-sex marriage were filed. And in 2023, the LGBTQI Understanding Promotion Act was finally passed, despite continued opposition from conservative figures like Shinzo Abe, after he stepped down as prime minister [in 2020]. In our polls, the proportion of people in favor of legalization rose from 41% in 2015 to 65% in 2021, and then to 72% in 2023.

The fact remains that discussions on marriage for all are not progressing within the ruling party.

“Since there are citizens whose rights are being hindered, shouldn’t we move forward with rapid legalization, without waiting for the Supreme Court’s ruling?” wrote the current Prime Minister, Shigeru Ishiba [considered a centrist within the LDP], in one of his works. But even under his leadership, there is no indication that the party is ready to change its position.

On March 25, the day the Osaka Court of Appeals joined those that had ruled the current law unconstitutional, government spokesman Yoshimasa Hayashi stressed that "these decisions are not yet final." "We will closely monitor the Supreme Court's position," he added .

A conservative LDP parliamentarian said: “The appeals courts’ rulings of unconstitutionality make no sense. Social order must be protected before individual rights. I expect the Supreme Court to make a wise decision. But I doubt the judges are capable of it, as they are so elite.” He added: “If a debate opens within the party on marriage equality, it would surely cause a much greater division than that caused by the law promoting understanding of LGBTQI people. ”