Chocolates, Confessions, and Court Cases: The Valentine’s Day Lawsuit for Same-Sex Marriage in Japan

On February 14, 2019, thirteen LGBTQ couples filed coordinated lawsuits in district courts in Japan in an attempt to legalize same-sex marriage. [1] At the time of these lawsuits, Japan had not recognized same-sex marriage or civil unions. As Asian countries begin discussing protection of LGBTQ rights, the legal basis of denying same-sex marriage has come under scrutiny. While the government has interpreted the Japanese Constitution as allowing marriage only between a man and a woman, the text itself and the intent of the text contains no such specifications. Though Japanese courts have a limited ability to create legislative change, by ruling in favor of the plaintiffs, the judiciary could push for significant societal and legislative change.

Modern legal recognition of same-sex partnerships began with Denmark in 1989. Since the beginning of the 21st century, many countries in Europe, North America, and South America have established same-sex marriage by law. [2] However, LGBTQ rights and protections in Asian countries are more limited; no Asian countries nationally recognize same-sex marriage or civil unions. However, several countries have moved towards expanding rights. Most notably, India’s Supreme Court recently struck down a colonial-era law outlawing gay sex, and Thailand is debating a bill to create same-sex civil partnerships. [3, 4] In 2017, Taiwan’s Constitutional Court struck down the civil code banning same-sex marriage. Same-sex marriage would automatically become legal if Parliament does not legally recognize it by May 2019. [5] It is against this backdrop of burgeoning progress that Japanese advocates hope to achieve legal marriage equality.

Without legal recognition of marriage, same-sex couples are denied a number of benefits. For one, Japanese public housing (apartments geared towards low-income households) requires that tenants be families. Unmarried couples are barred, meaning same-sex couples cannot apply jointly for a housing loan. Same-sex couples also cannot act as each others’ surrogates in emergency medical situations and may even be barred from hospital visits. [6] Additionally, foreign spouses in same-sex relationships cannot be issued a spousal visa. Nakajima and Baumann, one of the couples who filed a Valentine’s Day lawsuit, discuss this issue in their case as a violation of equal marriage rights. [7]

Same-sex couples can obtain a few legal recognitions: Japanese citizens are allowed to marry same-sex partners in other countries though these marriages are not legally recognized in Japan. Several districts and cities issue partnership certificates. These certificates may help same-sex couples certain benefits like hospital visitation rights and sharing rental agreements. However, this partnership certificate does not legally guarantee these benefits. Some couples have taken to alternative legal methods, including notarized deeds for contractual relationships and adoption, to obtain legal rights. However, it is clear these methods are insufficient alternatives to marriage as they do not grant the same rights, and they require the nature of the relationship to be legally misconstrued.

Historically, Japanese law has not widely addressed LGBTQ rights. In the beginning of the Meiji Restoration, when the Japanese Empire began to adopt Western beliefs and technologies, sodomy was criminalized in 1872. This criminalization was quickly withdrawn by the Penal Code of 1880, Japan’s first modern criminal code. Before this period, Japan’s historical, cultural, and religious influences held little hostility towards homosexuality, which has thus reflected itself in the lack of explicitly anti-LGBTQ laws. [8]

Article 24 of the Japanese Constitution states that “marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.” [9] While this wording is ambiguous, the Japanese government has interpreted Article 24 as to allow marriage only for different-sex couples. In 2015, Prime Minister Shinzo Abe claimed that “the Constitution does not envisage marriage between people of the same sex.” [10] In accordance with this policy, local governments have only ever issued marriage licenses for same-sex couples. When Nakajima and Baumann submitted marriage registration documents, their application was rejected with an official notice stating: “The marriage registry application where both applicants are women is unlawful.” [11]

Yet some legal scholars argue that this is a misinterpretation of Article 24. According to Shuhei Ninomiya, a professor at Ritsumeikan University who specializes in family law, Article 24’s focus is on the requirement for consent by both marrying parties. This marks a change from the prior legal requirements in the Meiji Constitution, which held that a marriage became legally effective only after it was entered in the family registry of the husband’s house, thus requiring consent from the head of the husband’s house. Additionally, for a husband younger than 30 or a wife younger than 25, the consent of both parents of the child was needed. [12]

The intended difference between the Meiji Constitution and the modern Constitution of 1947 becomes even clearer when considering the temporary legal adjustments made during the transition between constitutions. Article 4 of the "Law Concerning Temporary Adjustments of the Civil Code Pursuant to the Enforcement of the Constitution of Japan" stipulates that no parental consent could be required for marriage or divorce between adults. [13]. As Ninomiya argues, given the key change from the Meiji Constitution to the Constitution of 1947, it can be argued that the wording “marriage shall be based only on the mutual consent of both sexes” is intended to put legal consent in the hands of the marrying couple, instead of their heads of households. [14] The issue of “both sexes” thus does not reflect intent to block same-sex marriage, making current government practices a misinterpretation of the Constitution.

Additionally, plaintiffs plan to use Article 14, which prevents discrimination on the grounds of sex. The Constitution states, “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.” [15] Article 14 has previously been applied to discrimination based on sexual orientation, notably in the In re Futyu Hostel, Tokyo High Court, Civil 4th Division, Japan case (1997). LGBTQ group OCCUR requested to use the Fuchu Youth Hostel, a free hostel owned by the local Tokyo government. The hostel denied OCCUR’s application to stay overnight due to concerns about the sexual orientation of OCCUR’s members. OCCUR sued for access in the Tokyo District Court, which found it unlawful for the hostel to deny OCCUR’s application. The case was then appealed to the Tokyo High Court, which affirmed the district court decision, finding that the hostel’s decision violated equal protection under Article 14. [16] The Futyu Hostel case demonstrates that Article 14’s equal protection applies to sexual orientation. Though Article 14 is not as directly relevant to the issue of same-sex marriage as Article 24, the lack of same-sex marriage represents an issue of discrimination on the grounds of sexual orientation.

These lawsuits were filed in the district courts of multiple cities, including Tokyo, Osaka, Nagoya, and Sapporo. Through Japan’s tiered judicial system, the case may be appealed up to city High Courts and finally to the Japanese Supreme Court. If the Japanese Supreme Court were to accept their arguments and hold that Article 24 does not ban same-sex marriage, that decision would allow the Japanese parliament to change current laws to allow same-sex marriage. [17] Such a decision would not be legally binding as in Japan’s primarily civil law system, codified laws dominate over judicial decisions. [18] Nevertheless, a decision in favor of same-sex marriage, on any judicial level, would provide greater impetus for the Japanese legislature to make same-sex marriage legal.

Sources:

[1] Magdalena Osumi, “LGBT couples to file lawsuit on Valentine's Day in push for equal marriage rights in Japan,” The Japan Times, 13 Feb. 2019, https://www.japantimes.co.jp/news/2019/02/13/national/social-issues/lgbt-couples-file-lawsuit-valentines-day-push-equal-marriage-rights-japan/#.XImn0yhKg2y (13 Mar. 2019).

[2] “A Historical Look,” Marriage For All Japan, http://marriageforall.jp/en/movement/ (13 Mar. 2019).

[3] Jake Dunn, “What India’s Decriminalization of Gay Intercourse Means for the Future of LGBTQIA+ Rights,” Columbia Undergraduate Law Review, 4 Nov. 2018, https://www.culawreview.org/single-post/2018/11/04/What-India%E2%80%99s-Decriminalization-of-Gay-Intercourse-Means-for-the-Future-of-LGBTQIA-Rights (13 Mar. 2019).

[4] Victor Maung, “Civil partnerships bill sparks debate in Thailand,” Washington Blade, 15 Jan. 2019, https://www.washingtonblade.com/2019/01/15/civil-partnerships-bill-sparks-debate-in-thailand/ (13 Mar. 2019).

[5] Yimou Lee, “Taiwan proposes Asia’s first same-sex marriage law after voters reject legal equality in referendums,” The Independent, 21 Feb. 2019, https://www.independent.co.uk/news/world/asia/taiwan-gay-marriage-law-same-sex-lgbt-rights-equal-referendum-vote-a8790586.html (13 Mar. 2019).

[6] Yuki Arai, "Is Japan Ready to Legalize Same-Sex Marriage," Asian-Pacific Law & Policy Journal 16, no. 1 (Fall 2014): 122-155, https://heinonline.org/HOL/P?h=hein.journals/aplpj16&i=124.

[7] Osumi, “Valentine’s Day.”

[8] Mark McLelland & Katsuhiko Suganuma, “Sexual minorities and human rights in Japan: an historical perspective,” The International Journal of Human Rights 13, no. 2-3. (2009): 329-343, DOI: 10.1080/13642980902758176.

[9] Constitution of Japan, 3 Nov. 1948, art. 24, https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html (13 Mar 2019).

[10] Andy Sharp, “Gay marriage push in Japan faces constitutional barrier,” The Japan Times, 20 Feb. 2015, https://www.japantimes.co.jp/news/2015/02/20/national/social-issues/gay-marriage-push-faces-constitutional-barrier/#.XImqoShKg2x (13 Mar. 2019).

[11] Osumi, “Valentine’s Day.”

[12] Kurt Steiner, “The Revision of the Civil Code of Japan: Provisions Affecting the Family,” The Far Eastern Quarterly 9, no. 2 (Feb. 1950): 169-184, https://www.jstor.org/stable/2049713.

[13] Ibid.

[14] Osumi, “Valentine’s Day.”

[15] Constitution of Japan, 3 Nov. 1948, art. 14, https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html (13 Mar 2019).

[16] In re Futyu Hostel, Tokyo High Court, Civil 4th Division, Japan (1997).

[17] Arai, “Is Japan Ready.”

[18] Piyali Syam, “Major Differences Between the Japanese and American Legal Systems,” @WashULaw Blog, last modified 20 Nov. 2013, accessed 13 Mar. 2019, https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-american-legal-systems/.