Marriage For All Japan "Marriage for all": Japan's marriage affirmative action series decides Osaka loses first instance

On Western Valentine's Day in 2019 (2/14) , there were 13 gay couples in Hokkaido, Sapporo, Tokyo, Nagoya, and Osaka, Japan, on the grounds that the state's rejection of same-sex marriage violates the freedom of marriage guaranteed by the Constitution and that everyone is equal under the law. Formally filed a damages lawsuit with the Japanese government. In September of the same year, gay couples from Kyushu also joined the lawsuit, filing a lawsuit with the Fukuoka District Court.

In 2020 , the transgender man Ho Hitotsubashi (pseudonym) and his partner Takeda Yae (pseudonym), because Mr. Hitotsubashi has not changed the gender on the household registration, although he is a heterosexual partner of a transgender man and a cisgender woman, there is no legal way to do it Getting married and preparing to file a lawsuit in the Tokyo District Court. The lawsuit headed by Hitotsubashi Ho is called the "Tokyo 2 Litigation". Among the 8 plaintiffs, in addition to transgender and pansexual friends, they will formally enter the proceedings in March 2021.

The above series of lawsuits is the Japanese version of the marriage affirmative action lawsuit " Marriage For All Japan - 遊の人をすべての人に", referred to as "マリフォー (MFAJ)".

The verdict of the Sapporo District Court last year

As of yesterday, only the Sapporo District Court in this series of lawsuits was sentenced on March 17 last year (2021).

Although the Sapporo District Court held that the prohibition of gay couples from marrying in the public sector violated the principle of "equality under the law" in Article 14(1) of the Japanese Constitution. However, the judge also believed that the government's refusal to accept same-sex marriage was not unconstitutional in accordance with Article 24 of the Japanese Constitution, and the government did not need to compensate the plaintiff for this, so the request of the plaintiff (three groups of gay couples) was rejected.

Although the Sapporo District Court lost the first instance, this is the first time that a district court in Japan has made a judgment that "the public sector's prohibition of same-sex marriage is unconstitutional", which is a certain indicator. However, the Japanese version of the marriage affirmative action lawsuit is currently being tried in 5 district courts at the same time (the Sapporo case has been appealed for the second instance), and the judgments of other district courts will also affect other courts or appeals. Litigation direction of the third instance.

The decision of the Osaka District Court

Today, the first-instance verdict of the Osaka District Court came out. Judge Doi Fumimi of the Osaka District Court believes that Japan's "Constitution has no assumptions, and it does not guarantee same-sex marriage, so the provisions of the "Civil Law" or "Family Registration Law" do not violate Articles 13 or 24 of the Constitution. Item 1, therefore the government does not recognize same-sex marriage as constitutional.

Among the plaintiffs in the Osaka lawsuit, Sakata Mazhi and Sakata テレサ (formerly known as Theresa Stieger), a multinational lesbian couple, are currently married in Theresa's home country, the United States. Theresa is now pregnant and is due in August this year. Although the two were married in the United States and obtained a gay partnership in Kyoto, where they lived, when Theresa gave birth to a child in Japan, the baby could not enjoy joint parental rights or dual citizenship, and could only share his biological mother, Theresa Being an American, Sakata Machi is not legally the mother of the baby.

The plaintiffs in the Osaka lawsuit are joined by Sakata Mazhi and Sakata テレサ, which is the best proof that gay couples can have children. It is a pity that the first-instance judgment did not accept this at all, and the court still agreed with the Japanese government's argument that "marriage is for the purpose of giving birth and raising children, so it can only be the union of a man and a woman." In the second instance of the appeal, the baby in Theresa's womb will be born. If Japan has not adopted same-sex marriage, there will be more legal problems.

Controversy over Japan's version of marriage affirmative action

Once again sorting out the disputes of the Japanese version of marriage affirmative action:

1. Does Japan's non-recognition of same-sex marriage violate " equality under the law " guaranteed by Article 14 of the Constitution?
2. Does Japan's denial of same-sex marriage violate the "freedom of marriage " guaranteed by Article 24 of the Constitution?
3. Japan has not adopted same-sex marriage. It is the country's neglect of duty ( legislative inaction ). Is this already illegal? If yes, the plaintiff has suffered damages to rights and morals due to the government's legislative inaction, and therefore requested the state for compensation.

The first two are judging whether "Japan does not recognize same-sex marriage is unconstitutional". The damage compensation lawsuit after the last point is because of the relationship between the Japanese legal system and cannot directly apply for unconstitutional review. It is necessary to file a damage compensation lawsuit with the state. Based on these litigation points, there will be three judgments:

1. Complete victory : The court believes that the legal prohibition of same-sex marriage is unconstitutional, and the government's negligence (legislative inaction) has caused damage to the plaintiff's rights and interests, and must compensate the plaintiff.
2. Substantial victory : The court believes that the legal prohibition of same-sex marriage is unconstitutional, and relevant laws should be enacted as soon as possible; however, it has not reached the level of government negligence (legislative inaction), so there is no need to compensate the plaintiff.
3. Lost : The court held that the legal prohibition of same-sex marriage was not unconstitutional (constitutional) and dismissed the plaintiff's request.

What does "both sexes" mean in Article 24 of the Japanese Constitution?

Leaving aside the legislative inaction part of claiming damages to the state, Articles 14 and 24 of the Constitution, the most troublesome is actually Article 24. Article 24 of the Constitution on freedom of marriage states in the text: "Marriage is established only on the basis of the voluntary union of 'two sexes' (marriage は「両性」の合意のみにKIいてestablishmentし)"

"Bisexual" here basically means "male and female". But does this "bisexuality" mean "one man and one woman", or does it assume that there are only two genders? will be related to legal interpretation. The same legal provisions will have different legal interpretations with the evolution of the times. There is indeed a way of interpreting it now that the "both sexes" in Article 24 of the Constitution is because the old Civil Code before the war stipulated that if both parties want to marry, they must have parental consent. Therefore, the reason why the new post-war "Constitution" specifically writes "both sexes" is to emphasize that marriage means "both parties," rather than "one man and one woman." It's just that this constitutional interpretation method has not yet achieved a majority consensus. There is only one group of people who argue that it is much easier to change the interpretation of the law than to amend the constitution. Before this method of constitutional interpretation becomes mainstream, Japan's same-marriage-related lawsuits must deal with the issue of "both sexes" in Article 24 of the Constitution.

What's the difference between the two lawsuits?

In the Sapporo lawsuit and the Osaka lawsuit that have been pronounced so far, the judge has not dealt with the issue of "gender". More correctly, the Sapporo lawsuit bypasses Article 24 of the Constitution, while the Osaka lawsuit looks at Articles 24 and 14 of the Constitution together: since Article 24 of the Constitution refers to "both sexes", According to the interpretation of the Osaka District Court, the "gender" here refers to a man and a woman, so the current Japanese law is not unconstitutional, nor does it violate the "equality under the law" guaranteed by Article 14 of the Constitution.

The above paragraph is the interpretation of the Osaka District Court. The Sapporo District Court's decision was to first look at Article 14 of the Japanese Constitution, arguing that "the government's prohibition of same-sex couples from marrying is unconstitutional", so there is no need to deal with the issue of Article 24 of the Constitution, so that the plaintiff can have reason to appeal to the second instance.

write at the end

Just like the conclusion after the last Sapporo lawsuit, this series of Japanese marriage affirmative action lawsuits, as well as the first instance in Tokyo x2, Nagoya and Fukuoka, have not yet been sentenced, and the Osaka lawsuit is expected to be appealed to the second instance in the same way as the Sapporo lawsuit. On a slightly pessimistic point of view, the outcome of the Osaka lawsuit is different from the Sapporo lawsuit (the Sapporo District Court has at least specifically mentioned that the government does not allow same-sex marriage to violate Article 14 of the Constitution), the Japanese government can use "same marriage is not a society". Consensus (Social Synthesis)" grounds to deny or suspend amendments to the law to protect marriages for non-heterosexual couples.

In addition to continuing to pay attention to the results of the subsequent judgments of the series of lawsuits, the trend of the "Tokyo 2 lawsuits" is very worthy of attention. Because the plaintiffs of the "Tokyo 2 lawsuits" are no longer just asking for "same-sex marriage", but hope to achieve marriage equality, and hope that all two people who love each other can get married.

This article is simultaneously published in the Japanese current affairs まとめ translation of Kaori Ishikawa .