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Court says Japan's ban on same-sex marriage unconstitutional

More than a dozen same-sex couples filed lawsuits in district courts across Japan in 2019 seeking recognition of gay marriage.

Published: 17th March 2021 10:49 AM  |   Last Updated: 17th March 2021 12:10 PM   |  A+A-

Supporters hold the 'unconstitutional decision' flag as they are pleased with the Sapporo District Court's decision that it is unconstitutional to not allow same-sex marriage in Sapporo. (Photo | AFP)

Supporters hold the 'unconstitutional decision' flag as they are pleased with the Sapporo District Court's decision that it is unconstitutional to not allow same-sex marriage in Sapporo. (Photo | AFP)

By AFP

TOKYO: Japan's failure to recognise same-sex marriage is unconstitutional, a court ruled Wednesday, in a landmark first verdict on the issue that was welcomed with joy by campaigners.

More than a dozen same-sex couples filed lawsuits in district courts across Japan in 2019 seeking recognition of gay marriage. Japan is the only Group of Seven nation that still does not recognise the unions.

In the first ruling on the lawsuits, a court in northern Japan's Sapporo rejected a request for damages of one million yen ($9,000) per person for plaintiffs who argued they were being denied the same legal rights as heterosexual couples.

But the verdict rules that the failure to provide ways for same-sex couples to "enjoy even a part of the legal effects that arise from marriage... violates article 14" of the constitution, which says that "all of the people are equal under the law".

"I couldn't hold back my tears. The court sincerely gave its thorough attention to our problem and I think it issued truly a good decision," a male plaintiff told reporters outside the courthouse.

The verdict said however that it would not uphold the damages demand as lawmakers may have struggled to legislate on the issue.

Still, lawyers for the plaintiffs, surrounded by rainbow flags, held up a sign outside the court declaring the ruling "a huge step towards equality in marriage".

Opposition lawmaker Kanako Otsuji, one of the few Japanese politicians who is openly LGBT, said in a tweet that she was "truly, truly happy" about the verdict.

"With this ruling, I urge the Diet, as the legislative branch of the government, to deliberate a proposed amendment to the civil code to make same-sex marriage possible," she wrote.

'Partnership' certificates

Japan's constitution stipulates that "marriage shall be only with the mutual consent of both sexes".

The government says this means same-sex marriage is "not foreseen" in the constitution or civil law.

But lawyers for the plaintiffs and other legal experts counter that there is nothing in the constitution that would prohibit same-sex marriage.

They argue the language of the 1947 post-war constitution is only meant to ensure equality between prospective spouses and prevent forced marriages.

There are currently 14 couples, including the three whose case was before the Sapporo court, who have filed suits over the issue of same-sex marriage, according to the Mainichi Shimbun newspaper.

Historically, Japan was broadly tolerant of homosexuality, with documented cases of samurai warriors during feudal times having male lovers.

But as Japan industrialised and modernised from the late 19th century, Western prejudices against homosexuality were increasingly adopted.

In a landmark advance in 2015, Tokyo's bustling Shibuya district started issuing symbolic "partnership" certificates to same-sex couples.

Some other local governments have followed suit, and corporate Japan is also showing signs of moving toward recognising same-sex couples.

But not all gay couples in Japan live in areas with such certificates, meaning they can be prevented from visiting loved ones in hospitals or refused tenancy because their relationship is not legally recognised.



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