【Editorial】Ruling on Same-Sex Marriages Do Not Misconstrue the Constitution and Pervert Marriages


Another unacceptable ruling has been issued. The Sapporo High Court ruled that the existing system, which does not recognize same-sex marriages, violates the Constitution. Although not a final ruling, it is a matter of great concern that courts continue to ignore the significance of marriage in their rulings.

Sapporo High Court “in Violation” of Article 24(1)

Lawsuits challenging the constitutionality of the Civil Code and the Family Registration Law for not recognizing same-sex marriages have been filed in five regions across Japan, including Tokyo, Osaka, and Fukuoka (Tokyo additionally has a secondary lawsuit). Thus far at the district court level, the lack of protection for same-sex couples has been ruled to be unconstitutional and their status as a “state of unconstitutionality”. However, the interpretation of Article 24, Paragraph 1 of the Constitution presented by the Sapporo High Court would distort the intended purpose of the institution of marriage, which is extremely difficult to accept.

Article 24(1) stipulates, “Marriage shall be based only on the mutual consent of both sexes…with the equal rights of husband and wife.” Regarding this, all district courts have ruled that the current system does “not violate” this provision. The ruling of the Tokyo District Court, issued the same day as the Sapporo High Court (May 14th), is also consistent with this interpretation.

However, the Sapporo High Court not only deemed that Paragraph 2, which states that “laws on marriage and the family shall be enacted from the standpoint of individual dignity,” was violated, but also ruled for the first time in the series of lawsuits that Paragraph 1 infringes on their rights. This decision is difficult to comprehend.

In addition to “the mutual consent of both sexes”, Paragraph 1 uses the terms “husband and wife.” From this provision, it can be inferred that the Constitution considers marriage to be exclusively between a man and a woman and does not envisage same-sex marriages. The government’s stance aligns with this interpretation.

On the contrary, the Sapporo High Court interpreted Paragraph 1 as intending “to establish the freedom of marriage between individuals, guaranteeing same-sex marriages to the same degree as opposite-sex marriages.” While the court viewed the matter through the lens of individual respect, it construed “both sexes” to refer to the parties involved and this interpretation appears to be a distortion. From the terms “both sexes” and “husband and wife,” marriage inferred by the Constitution can only be understood as solely between a man and a woman.

In the second-instance litigation of this case, the Tokyo District Court ruled that provisions, such as those in the Civil Code which do not protect same-sex couples, constitute a “state of unconstitutionality.” The only court in this series of trials to uphold the current system that does not recognize same-sex marriages as “constitutional” was the Osaka District Court (June 2022), which defined the purpose of the marriage system as protecting relationships for procreation and child-rearing. We support this judgment.

In recent years, there has been an active movement to expand the rights of sexual minorities, including homosexuals, with the enactment of the so-called LGBT Understanding Promotion Act. Perhaps the judges of the Sapporo High Court have been influenced by this trend. However, Japan has traditionally believed that sexual relations between men and women are linked to reproduction and marriage, and that social order is maintained and developed through the institution of marriage that protects these relations. The underlying cause of the deeply concerning decline in birth rate may also be attributed to society’s perception of reproduction and marriage breaking down.  

Supreme Court Should Make the Right Decision.

The Sapporo High Court found no evidence of detriment or harm in ordaining same-sex marriages. However, it seems to lack awareness of the significance of sex and marriage. Institutionalizing same-sex marriages contradicts the purpose of the marriage institution and may disrupt sexual order. Since damages were not awarded, the plaintiffs plan to appeal the case. We hope that the Supreme Court will accurately determine the purpose of the marriage system while remaining faithful to the Constitution.

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