The Fukuoka court deemed the ban on same-sex marriage "unconstitutional" on Thursday, June 8. This judgment marks the end of the first cycle of a legal battle launched several years ago for the recognition of marriage for all in Japan. His record, though mixed so far, is seen as encouraging by LGBT rights activists in Japan.
Coordinated legal actions were launched in 2019 by these activists to order the Japanese state to pay damages to homosexual couples deprived of the possibility of getting married and therefore enjoying the associated rights and benefits. . Their larger goal was to put pressure on the state to legally recognize same-sex unions. Japan is the only G7 country that does not recognize marriage for all at all.
In total, a dozen couples had launched proceedings before five courts of first instance across the country. Each time, the judges rejected their claims for damages. But they were divided on the fundamental question posed by the prohibition of marriage for all opposed to Article 14 of the Japanese Constitution, which guarantees the equality of all before the law.
For example, Judge Takebe Tomoko of the Sapporo Magistrate's Court ruled in March 2021 that denying same-sex couples the rights associated with marriage is "discrimination without legal basis" that violates Article 14 of the Constitution.
This Constitution, adopted in 1947, is limited to mentioning that "marriage can only take place with the mutual consent of both sexes", which gives rise to much debate and interpretation.
Rights partially taken into account
All the courts approached "at least agree on the need for legislation that publicly endorses same-sex relationships and grants them legal protection equivalent to that of heterosexual couples," Takeharu Kato, a attorney who filed one of these proceedings.
In early June, judges at the Nagoya court acknowledged that same-sex couples were "excluded from accessing important personal benefits afforded to legally married couples." “The justification for the existence of these significant disparities and the lack of action to remedy them is now unconvincing,” added this court.
A year ago, however, the Osaka court argued that the differences between homosexual and heterosexual couples were already partially taken into account by the partnership certificates issued by municipalities. Indeed, a growing number of companies and municipalities across the country are offering same-sex couples benefits similar to those of married people.
For their part, several polls show that a majority of the Japanese population is in favor of marriage for all. A timid bill to "promote understanding" of the LGBT community is expected to be approved by Parliament sometime in June.
