Hastening the inevitable

Makiko Terahara, representative director at Marriage for All Japan

MAY 2021 Illuminating Voices / Text by Andrew Howitt

On 17 March, a district court in Sapporo became the first in Japan to rule that not allowing same-sex marriage was unconstitutional. This landmark decision is being regarded as a major step towards seeing same-sex unions legalised in Japan. More than two years earlier, on Valentine’s Day 2019, four lawsuits representing 13 same-sex couples were filed in courts in Sapporo, Tokyo, Nagoya, and Osaka prefectures. Some lawyers of the legal teams for these lawsuits established Marriage for All Japan (MFAJ) — as a separate entity from the legal teams — to provide comprehensive pro bono support for these lawsuits. The organisation is also supporting a couple in Fukuoka who filed a similar lawsuit in September of the same year. In addition, it lobbies Diet members for the amendment of the marriage law and works to raise public awareness. Makiko Terahara, representative director of MFAJ, has worked as a lawyer for more than 20 years. She is co-chair of the legal team for the same-sex marriage lawsuit in the Tokyo District Court and is a member of the Japan Federation of Bar Associations’ Committee on LGBT Rights.

Who filed the Sapporo lawsuit and why?

Three same-sex couples are the plaintiffs in the Sapporo case. The reasons they became plaintiffs may be different, but they have one thing in common with the plaintiffs in the other cases: they believe that, because Japan does not recognise same-sex marriage, their relationships are not legally protected and their personal dignity is being violated.

Unlike heterosexual couples, same-sex couples are not given the rights and benefits associated with marriage, such as inheritance rights, joint parental rights, tax benefits, and social security. Also, by not recognising same-sex marriages, the government is sending the negative message that same-sex relationships are not legitimate. This serves to perpetuate prejudice and discrimination against same-sex couples and sexual minorities.

The arguments we are using are the same in each of the five lawsuits. We are claiming that the government is infringing on the freedom of marriage and violating the principle of equality. The five defence teams hold regular meetings to share their progress and discuss the cases. In each trial, there is almost no difference in the counterarguments coming from the government.

Could you summarise the key points of the ruling?

In the Sapporo trial, and in the trials in the other district courts, the government argued that: (1) the constitution does not envision same-sex marriage, (2) there is no discrimination because homosexuals are free to marry heterosexuals, and (3) marriage is for heterosexual couples because they bear and raise children.

However, the Sapporo ruling stated that: (1) the constitution does not deny same-sex marriage, and the reason the Civil Code did not envision same-sex marriage when it was enacted was based on the mistaken belief that homosexuality was a mental disorder, which has now been medically disproven, (2) a homosexual person marrying a heterosexual person does not reflect the essence of marriage, and (3) marriage, with or without children, also has the important purpose of protecting the couple’s relationship.

Although the court did not recognise that the failure to allow same-sex marriage infringed on the freedom of marriage, it concluded that it violated the principle of equality, meaning that not recognising same-sex marriages is discriminatory.

One noteworthy point is that the Sapporo decision established a very strict standard of review. It stated that sexual orientation is a characteristic that cannot be controlled by the individual and is, therefore, the same as race or gender. It also questioned whether there is a truly unavoidable reason for making a distinction based on something that cannot be changed by the individual.

Further, the court’s ruling says that acceptance of same-sex marriage by heterosexuals, who are in the majority, is not essential to granting legal protection to same-sex couples.

Although judges can write decisions without being bound by the decisions of other courts, the Sapporo District Court’s decision will undoubtedly have an impact on the judges in the other cases. If they are to write a ruling that states there is no need to recognise marriages between same-sex couples, they must confront the logic of the Sapporo ruling. 

How did you react when you heard the verdict?

I felt that this was a victory not only for the plaintiffs but for all those who have been supporting the human rights of sexual minorities for decades.

MFAJ released a statement in which we commended the ruling and called on the Diet to promptly amend the law. We also held a meeting with members of the Diet in the week after the ruling and appealed to them to amend the law as soon as possible.

What happens next? 

Even after the Sapporo ruling, the government has not changed its position on same-sex marriage. Each district court will eventually reach a decision, but the final ruling is sure to be made by the Supreme Court. We expect this to happen in 2023. If the Supreme Court decides that not recognising same-sex marriages is in violation of the constitution, the government will be forced to take action.

However, the dignity of individuals continues to be violated day after day. We shouldn’t have to wait for a Supreme Court ruling — same-sex marriage needs to be recognised by the Diet as soon as possible.

Do you expectat same-sex marriage to become a reality in Japan?

There is no doubt that same-sex marriage will be realised in Japan. I have always said that MFAJ’s activities are not to make the impossible possible, but to hasten the inevitable. Our goal is to make same-sex marriage a reality by the year 2023 at the latest.

This is a reasonable goal given that same-sex marriage is already recognised in many countries, the number of Diet members who support it is increasing steadily, and the percentage of people supporting same-sex marriage is going up. In a 2015 survey, 41% of respondents were in favour of same-sex marriage, but in a March 2021 survey, the ratio had risen to 65%, with more than 80% of those in their 20s and 30s in favour.

The recognition of same-sex marriage will not only give concrete rights and benefits to sexual minorities, but will also be a big step towards eliminating prejudice and discrimination against them. At MFAJ, we will continue our activities to make as many people as possible aware that it is the majority, not the minority, who need to change.  •