Does the Japanese Constitution prohibit same-sex marriage?

In Japanese law, there is always more than meets the eye.

Timothy Magarry

Politics, Society and culture | Asia, East Asia

19 March 2019

Same-sex couples in Japan are suing the government, calling their inability to marry unconstitutional. Timothy Magarry looks at the Japanese constitution and it’s stance on same-sex marriage.

On Valentine’s Day, 13 same-sex couples simultaneously filed lawsuits in district courts across Japan, claiming that their inability to marry is unconstitutional. The challenge is the first of its kind and the couples’ arguments initially appear strong. However, in Japanese law, there is always more than meets the eye.

The challenge centres on Articles 14 and 24 of the Japanese constitution, which reads:

Article 14: All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
Article 24: Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.

The couples argue that Article 24 does not actually define marriage as between opposite sexes, and note that there is technically no law on the books which does. Scholarly opinion tends to agree. They, therefore, claim that refusing to recognise same-sex marriage is discrimination in violation of Article 14.

Yet, the Japanese government feels differently. Their position, to quote Prime Minister Abe in 2015, is that the words “both sexes” indicate that “the Constitution does not envisage marriage between people of the same sex”.

In Japan, these ‘official’ interpretations of the constitution can have the practical effect of law. As a consequence, local governments Japan-wide have rejected marriage applications made by same-sex couples.

But how will a court interpret these provisions?

Japan takes a purposive approach to legal interpretation, so the Court will have regard to the full context in which an article was drafted.

This means considering the intentions of the ‘founding fathers’ – the Americans. Despite a nominal ‘team effort’ with the Japanese government in 1946, almost the entire document was drafted within just 10 days by the Allied Forces after World War II.

Unsurprisingly, classic American themes of equality and individual liberties shine through the Constitution’s content. Articles 14 and 24 fall within Chapter 3, which guarantee individual freedoms. They sit along rights to equal education, equal respect as an individual and freedom of expression among others.

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But most peculiar is that both Article 14 and 24 were penned by the same woman – an interpreter named Beate Sirota Gordon. For Article 24 specifically, Gordon’s mission was to disassemble the traditional Japanese ‘House’ system which governed familial relations. This social structure formed the basis of the pre-war civil code, which made marriage and other family decisions contingent upon consent from the (male) heads of each family.

Gordon noticed “the distress of women who wanted a divorce, who could not inherit property, who could not have custody of their children in the event of divorce” and took upon herself the task of fixing this at the highest legal level.

With all this in mind, then, the purpose of the words “both sexes” and “husband and wife” is not to reflect some underlying assumption that marriage is only between opposite sexes, but instead to make unmistakably clear that man and woman are equal in both public and private life.

This all suggests that, exactly as the couples claim, Article 24 does not attempt to define marriage as between opposite sexes.

However, when it comes to Article 14, the couples face an uphill battle. The Court consistently adopts a restrictive view of even the most explicit freedoms.

For example, despite Article 21(2)’s clear words that “no censorship shall be maintained,” the Court has upheld customs censorship and narrowed the provision’s application to administrative actions.

Additionally, although Article 22 guarantees the freedom to “move to a foreign country”, the Court in Hoashi v Japan approved the Foreign Minister’s decision to deny a passport to a Japanese economist wishing to visit the Soviet Union for a professional conference. While it generally pays lip service to Chapter 3 rights, the Supreme Court has failed to effectively implement them.

This is a particular problem for Article 14. Generally speaking, it is designed only to prohibit unreasonable discrimination, and the Supreme Court gives this a wide ambit.

In Japans Patricide Case of 1968, for example, the Court upheld Article 200 of the Criminal Code which imposed a significantly heavier penalty for killing one’s parent than for ordinary murder. The justification being that murdering a family member is more immoral than murdering a stranger.

The Supreme Court has also interpreted Article 14 as justifying “reasonable distinctions based on the physiological difference of the sexes”. It has consistently upheld Civil Code section 733 which prohibits women from remarrying for six months after their previous marriage ends.

This ostensibly ensures certainty over who the legitimate father is for any child which may result in the intervening period, but on its face seems to contradict the very purpose of Article 14’s words.

In the context of same-sex marriage, the government may persuasively rely on these cases to argue that marriage, as an institution between man and woman, is also a fundamental social value designed to encourage reproduction and ensure certainty of parenthood. And, chances are, the Supreme Court will agree but rather than declare the law unconstitutional, will simply suggest that it be revised in the future.

Cynical though it may seem, the outlook is not immediately promising for these couples. In the long term though, these cases could start the discussion for a journey towards change.

As the couples themselves admit, their real motivation is to create public awareness of LGBT issues in Japan. In their words, “if we can get married legally someday, that would be super. But first, society needs to change”.

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