(Adnkronos) – A Japanese high court has ruled that the lack of legal recognition of same-sex marriage violates the right to equality guaranteed by the Constitution, specifying that the ban leads to discriminatory treatment of people based on sexual orientation. Kyodo News reports that the Tokyo High Court upheld a lower court ruling that rejected the plaintiffs’ claim for damages, citing the lack of a Supreme Court ruling. It thus became the second high court to declare the ban unconstitutional.
The court ruled that the ban on marriage violates the section of the Constitution that states that laws concerning matters of marriage and family “must be enacted from the standpoint of individual dignity and the essential equality of the sexes”. The ruling states that the current provisions of civil law “are not based on reasonable grounds” and lead to “discriminatory treatment of people based on their sexual orientation”. Judge Sonoe Taniguchi believes that recognizing a person’s right to a marital relationship with their partner should be respected as an “important legal interest” for all, including those in same-sex relationships. In rejecting the seven plaintiffs’ claim for damages, Taniguchi said that because the Supreme Court has not yet ruled on the issue, the court cannot hold the government liable for failing to take legislative action by the Diet.
The seven plaintiffs, including same-sex couples, had asked the state for 1 million yen (€6,000) each, claiming that the provisions of civil law that do not allow same-sex marriage violate the right to equality guaranteed by the Constitution and its guarantee of freedom of marriage. Article 24 of the Constitution, which guarantees freedom of marriage, states: “Marriage shall be based only on the mutual consent of both sexes”. “The presiding judge’s words got through to me, and I understood that the judge took our arguments to heart. I am happy to be here today,” celebrated Chizuka Oe, one of the plaintiffs.
Meanwhile, a government spokesman said the state would closely monitor developments in other similar cases, stressing the need to take into account the Diet’s deliberations and the decision of some local governments to recognize same-sex unions. The introduction of a same-sex marriage system “concerns the foundations of people’s lives and is closely linked to the view that each person has of the family,” Chief Cabinet Secretary Yoshimasa Hayashi told a news conference. The plaintiffs appealed after the Tokyo District Court dismissed their claim for damages in November 2022, where it was stated that the ban on same-sex marriage was in a “state of unconstitutionality” – a term used to indicate an invitation to the Diet to act on the matter.
Japan remains the only industrialized country in the Group of Seven not to have legalized same-sex marriage or civil unions, despite growing pressure from the LGBTQ+ community and its supporters. Previous district court rulings have been mixed: courts in Sapporo and Nagoya have said the failure to legally recognize same-sex marriage is unconstitutional, while courts in Tokyo and Fukuoka have specified that it is in a “state of unconstitutionality”. In the first ruling this year, the Sapporo High Court declared the failure to legally recognize same-sex marriage unconstitutional, upholding a 2021 lower court ruling. Each court, however, dismissed the claims for damages.
