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▼ Same-Sex Marriage Ban Constitutional, Says Tokyo High Court
- Category:Event
The Tokyo High Court on Friday ruled that Japan’s failure to recognize same-sex marriages is constitutional, the first and only court to do so at the high court level after five other similar rulings deeming it as unconstitutional.
Friday’s ruling was a painful setback for LGBTQ+ supporters seeking equal rights to heterosexual couples. It also overturned a 2024 district court ruling that stated that Japanese legislation, in not permitting same-sex marriages, is in a “state of unconstitutionality,” a legal wording that is just short of saying it is unconstitutional.
The case is part of a nationwide campaign launched in 2019 by nonprofit organization Marriage for All Japan. Eight plaintiffs, including a transgender man, filed the Tokyo case, arguing that the Civil Code and Family Registration Act unlawfully exclude them from marriage and deny them basic legal protections afforded to heterosexual couples. They had sought ¥1 million ($6,400) in damages per person.
Shortly after the ruling, the plaintiffs gathered outside of the court, where they were surrounded by a swarm of journalists and tearful supporters. The plaintiffs held up a banner that read, “Marriage equality denied. Unfair ruling.”
“All we want is the same as everyone else; to marry the one we love and be happy,” said plaintiff Rie Fukuda, 51. “Are we really unworthy of legal recognition and happiness? That’s what this verdict seems to say.”
Fellow plaintiff Hiromi Hatogai, 60, said that rather than sadness, the ruling caused her to feel disbelief and anger. “Did the judges even read the documents we submitted, or listen to our voices? Is the justice system really on our side?
“However, it’s important to turn our anger right now into action, and keep fighting,” she said firmly.
Presiding Judge Ayumi Higashi initially acknowledged the difficulties that LGBTQ+ individuals face in Japan and parliament’s inaction when it came to same-sex marriages.
“The government has been saying for over 10 years that careful consideration is required,” she said. “However, there’s no evidence to suggest this consideration has even begun. The issue (of same-sex marriage) must first be thoroughly discussed in the parliament.”
The ruling also recognized that society’s perception as to what constitutes a family has diversified since 1947, when the Constitution was drafted, and that it is no longer limited to a heterosexual couple and their child.
“Common-law marriages between same-sex couples have been accepted by society as an alternative form of family,” it said.
However, ultimately, the court’s conclusion was that, even in that context, it was still logical to define a married couple as that between a man and a woman. Higashi said that “reproductive unions” between men and women have remained the “normal” method for raising children for generations and are crucial for maintaining society.
All five previous high court appeals — in Sapporo, Tokyo (in a different lawsuit) and Fukuoka last year and in Nagoya and Osaka this year — concluded that the current ban is unconstitutional. Most cited violations of the supreme code’s Article 14, which ensures equality under the law, and the second paragraph of Article 24, which stipulates that marriage and family legislation must respect individual dignity.
However, although Higashi said that the current situation regarding same-sex marriages is in violation of the second paragraph of Article 24, she asserted that the absence of a legal system regarding families involving same-sex marriages cannot be deemed to violate Article 14 and the first paragraph of Article 24, which refers to “mutual consent between both sexes,” as the Constitution was written envisioning marriage as being heterosexual.
All six cases will now be tried at the Supreme Court, which is expected to hand down a unified decision.
At the local level, 541 municipalities — covering approximately 93% of the population — offer partnership certificates, according to Marriage for All Japan. But these certificates are not legally binding and provide none of the rights attached to marriage, such as inheritance or joint tax filing.
Friday’s ruling was a painful setback for LGBTQ+ supporters seeking equal rights to heterosexual couples. It also overturned a 2024 district court ruling that stated that Japanese legislation, in not permitting same-sex marriages, is in a “state of unconstitutionality,” a legal wording that is just short of saying it is unconstitutional.
The case is part of a nationwide campaign launched in 2019 by nonprofit organization Marriage for All Japan. Eight plaintiffs, including a transgender man, filed the Tokyo case, arguing that the Civil Code and Family Registration Act unlawfully exclude them from marriage and deny them basic legal protections afforded to heterosexual couples. They had sought ¥1 million ($6,400) in damages per person.
Shortly after the ruling, the plaintiffs gathered outside of the court, where they were surrounded by a swarm of journalists and tearful supporters. The plaintiffs held up a banner that read, “Marriage equality denied. Unfair ruling.”
“All we want is the same as everyone else; to marry the one we love and be happy,” said plaintiff Rie Fukuda, 51. “Are we really unworthy of legal recognition and happiness? That’s what this verdict seems to say.”
Fellow plaintiff Hiromi Hatogai, 60, said that rather than sadness, the ruling caused her to feel disbelief and anger. “Did the judges even read the documents we submitted, or listen to our voices? Is the justice system really on our side?
“However, it’s important to turn our anger right now into action, and keep fighting,” she said firmly.
Presiding Judge Ayumi Higashi initially acknowledged the difficulties that LGBTQ+ individuals face in Japan and parliament’s inaction when it came to same-sex marriages.
“The government has been saying for over 10 years that careful consideration is required,” she said. “However, there’s no evidence to suggest this consideration has even begun. The issue (of same-sex marriage) must first be thoroughly discussed in the parliament.”
The ruling also recognized that society’s perception as to what constitutes a family has diversified since 1947, when the Constitution was drafted, and that it is no longer limited to a heterosexual couple and their child.
“Common-law marriages between same-sex couples have been accepted by society as an alternative form of family,” it said.
However, ultimately, the court’s conclusion was that, even in that context, it was still logical to define a married couple as that between a man and a woman. Higashi said that “reproductive unions” between men and women have remained the “normal” method for raising children for generations and are crucial for maintaining society.
All five previous high court appeals — in Sapporo, Tokyo (in a different lawsuit) and Fukuoka last year and in Nagoya and Osaka this year — concluded that the current ban is unconstitutional. Most cited violations of the supreme code’s Article 14, which ensures equality under the law, and the second paragraph of Article 24, which stipulates that marriage and family legislation must respect individual dignity.
However, although Higashi said that the current situation regarding same-sex marriages is in violation of the second paragraph of Article 24, she asserted that the absence of a legal system regarding families involving same-sex marriages cannot be deemed to violate Article 14 and the first paragraph of Article 24, which refers to “mutual consent between both sexes,” as the Constitution was written envisioning marriage as being heterosexual.
All six cases will now be tried at the Supreme Court, which is expected to hand down a unified decision.
At the local level, 541 municipalities — covering approximately 93% of the population — offer partnership certificates, according to Marriage for All Japan. But these certificates are not legally binding and provide none of the rights attached to marriage, such as inheritance or joint tax filing.
- 28/11 19:17
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