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The authorized conundrum surrounding same-sex marriage in Japan

In 2013, after the US Supreme Court effectively legalized same-sex marriage in the US, I asked a friend who lived in California if he intended to marry his longtime partner. My friend said he would, but only because his partner wanted to. He himself didn’t seem to care, since California already provided legal protection for domestic partnerships and he wasn’t particularly keen on the institution of marriage. However, if the man he loved had his heart set on it, there was nothing he could do about it.

I thought of my friend as I read about the two recent Japanese court decisions on same-sex marriage and how those decisions could legalize them in Japan – the only Group of Seven country where such unions are not legal. A number of local governments have enacted regulations that allow LGBTQ couples to register as domestic partnerships to receive some of the benefits married couples enjoy. However, without national law normalizing the marriage of LGBTQ couples, such ordinances can only do so much.

What is significant about these court rulings is that while Japan should not deny LGBTQ couples the same benefits that married heterosexual couples enjoy, these matters must be regulated by law. A March 18 editorial in the Sankei Shimbun contested the ruling in one of the cases in which three same-sex couples sued the state in the Sapporo District Court, saying their inability to marry violated Article 14 of the Constitution, which provides equal protection under the law guaranteed right. The court denied plaintiffs’ request for compensation, but said that denial of the right to marry was in fact contrary to the Constitution. The plaintiffs viewed this as a victory as the compensation game was merely a means of getting the court to deal with the constitutional issue.

The Sankei Shimbun says that Article 24 of the Constitution, which guarantees the right of everyone to marry whomever they choose, defines marriage as an agreement between “both sexes” so that right does not extend to same-sex unions. The newspaper interprets the term “Ryōsei” (“both sexes”) as a man and a woman, although the court in the Sapporo case – the presiding judge of which was a woman, incidentally – said that the interpretation of Article 24 means it denies the legal Protection for same-sex partners who form lifelong unions is “not convincing”. The Sankei Shimbun argues that apparently the goal of the “marriage system” in Japan is to provide legal protection for the coexistence of partnerships between men and women and their offspring. That is the “natural way of thinking,” and while the editorial says there is a need to eradicate discrimination and bigotry against sexual minorities, the only way to legalize same-sex marriage can be through amending the constitution.

The matter was made even more difficult with a decision passed on March 17 by the Petit Bench of the Supreme Court that upheld a decision by the lower court to award damages to a woman who was suing her partner for adultery. The Civil Code allows individuals to seek compensation from spouses if those spouses cheat on them. The court’s decision to grant compensation in this case means that it will recognize same-sex unions as at least common law regimes that enjoy many of the same legal protections as registered marriages.

A lower court had already looked at Article 24 and found that while marriage is defined as the union of two people of different sex, this does not necessarily mean that two people of the same sex cannot marry. The defendant in the case, who cheated on her wife (they were legally married in the US in 2014) with the transgender woman who previously provided the sperm for her child, argued that legal protection would be granted to her -sexual couples ‘Marriage conventions based on the current system would fall apart. This is an exceptional position for a person in a same-sex marriage as it appears that LGBTQ couples are not allowed to marry, while this position is based on an assumption that can only be proven once same-sex marriages have been legalized.

Although the Supreme Court rejected this argument and the Sapporo court stated that refusing to recognize same-sex marriage was unconstitutional, it does not mean the law will change. According to Asahi Shimbun, the ruling Liberal Democratic Party has “sealed” any further discussion of the matter within the party itself, making it difficult for it to penetrate the legislature. This is pretty much the same strategy the party has pursued regarding the problem of allowing married couples to use different surnames, which many LDP members oppose for the same reason they oppose same-sex marriage – they believe that this undermines the integrity of the marriage – called the traditional family.

The difference is that no court has ruled that the law requiring married couples to have the same surname is unconstitutional, which creates an interesting theoretical situation. If, as some scholars once predicted, same-sex marriage becomes law before chosen separate surnames, will same-sex couples happily bow to the state and unify their surnames? This question sums up the government’s control over the family structure. Although some conservatives hate the idea of ​​legalizing same-sex marriages, legitimizing it would strengthen the institution of marriage, which is very important to them. It’s also why my California friend was reluctant to get married. He saw the state-sanctioned marriage as a pillar of the partriarchy that had disenfranchised him as a gay man. Who needs marriage when equal protection is guaranteed in all social and economic circumstances?

But he put these concerns aside for the sake of mood. In this regard, it is not surprising that a significant majority of Japanese are in favor of legalizing same-sex marriage. Nobody wants to stand in the way of true love.

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