On March 17, the Sapporo District Court ruled that it is unconstitutional not to recognize same-sex marriages. This case is one of five lawsuits filed by same-sex couples to push for same-sex marriage legalization in their respective prefectures.
The landmark ruling is a symbolic victory for the Japanese LGBTQ community, with many same-sex couples and supporters celebrating on social media. Same-sex marriage legalization is personal for me, too, after Ikuo Sato, a dear friend and veteran AIDS activist, died of a cerebral hemorrhage in January.
Sato was one of the plaintiffs in the Tokyo trial. There are many plaintiffs who are fighting their case without revealing their name or face, but he has never shied away from doing so.
At the start of the trial, Sato said: “I have other illnesses besides HIV, and I expect to live another 10 years or so. If I can be legally married to my partner and be a true ‘fu-fu’ (husband and husband) before I die, there is no greater happiness than this. I am sure I will go to heaven earlier than my partner. So at the end of my life, I would like to hold the hand of my partner, who has become my husband and say, ‘Thank you. I was happy.’ And then I’d like to go to heaven with gratitude.”
After his passing, his partner recounted how the hospital refused to explain Sato’s condition to him after hospitalization. It was only when Sato’s sister came to the hospital that the doctor offered an explanation. Many people were heartbroken by this episode, remembering what Sato had said at the court.
It would be tempting to say that the court decision is a vindication of Sato’s life work. But we must be sober in acknowledging what the decision accomplishes, and where it has disappointed activists.
Judges said the failure to provide same-sex couples with the legal effects of marriage violated Article 14 of the Constitution, which guarantees equality for all citizens. The court, however, also denied the plaintiffs’ claims that refusing to recognize same-sex marriage violated Articles 13 and 24 of the constitution.
Article 13 recognizes people’s “right to life, liberty, and the pursuit of happiness,” and Article 24 defines marriage as a union based on the mutual consent of both sexes, which “shall be maintained through mutual cooperation with the equal rights of husband and wife.”
The debate at court over Article 24 hinged on the historical context in which it was drafted. Attorneys representing the same-sex couples spoke on how the article meant to free couples from arranged marriages, but the Sapporo court held that Article 24 assumed marriage to be between a man and a woman.
At first glance, this decision could be seen as a defeat for the plaintiffs. Their demand for compensation from the state — based on the claim that not allowing same-sex marriage violates human rights — was also dismissed.
It is unlikely that this case alone will move Japan toward same-sex marriage legalization. As other similar lawsuits are unfolding, the decision is anticipated to be challenged and heard by the Supreme Court. The long-ruling Liberal Democratic Party remains strongly opposed to same-sex marriage. Commenting on the ruling, the Chief Cabinet Secretary Katsunobu Kato said, “It is the position of the government that not recognizing same-sex marriage does not violate the Constitution.”
Still, the court decision is historic and has brought hope to the LGBTQ community. There are a number of reasons for this. First, this is the first trial on same-sex marriage in Japan, and it could offer interpretations that guide similar cases in the future. It is noteworthy that in the ruling the judges stated that a person’s sexual orientation cannot be chosen or changed by will.
The decision also came as a surprise to advocates for LGBTQ rights, like myself, who were prepared for the worst result. After all, Japanese courts are conservative and tend to make decisions that the government favors. Many lawmakers and local assembly members are hostile to same sex marriage.
At odds with the country’s conservative political and legal establishment, Japanese society is becoming more accepting of the LGBTQ community. According to a recent poll by the Asahi Shimbun, Japan’s national newspaper, 65% of respondents supported same-sex marriage, far exceeding the 22% who opposed it.
In 2015, Setagaya and Shibuya, two special wards in Tokyo, began issuing certificates of partnership to same-sex couples. Many other local governments followed suit, and as of March 16, 2021, 76 municipalities and three prefectures across Japan have allowed same-sex partnership registration.
These certificates allow limited benefits, but are not legally binding. In the Sapporo ruling, same-sex couples have felt the legal system has, for the first time, recognized that it is necessary to protect their rights.
The Sapporo court’s decision came two months after Sato’s passing. How we wish he was here with us when the judges delivered the ruling.
Despite the “substantial victory,” the plaintiffs in the Sapporo lawsuit are planning to appeal the case. They said they will fight until same-sex marriage is legalized in Japan. As popular support is growing, I am hopeful that the day of true victory awaits.
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TNL Editor: Bryan Chou, Nicholas Haggerty (@thenewslensintl)
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