A second high court rules that the ban on same-sex marriage is unconstitutional

A second Japanese high court ruled yesterday that the government’s policy against same-sex marriage is unconstitutional, the latest in a series of decisions upholding plaintiffs’ demands for marriage equality.

The Tokyo High Court called the ongoing ban “a groundless legal discrimination based on sexual orientation,” saying it violates the constitutional guarantee of right to equality, as well as individuals’ dignity and equality between sexes. It was a clearer statement than the 2022 lower court decision that described the situation as “an unconstitutional state.”

The Sapporo High Court ruling in March said not allowing same-sex couples to marry and enjoy the same benefits as straight couples violates their fundamental right to equality and freedom of marriage. Wednesday’s ruling is the seventh overall that found the ongoing ban to be unconstitutional or nearly so, against only one district court decision that found it constitutional. The rulings can still be appealed to the Supreme Court.

In yesterday’s ruling, Presiding Judge Sonoe Taniguchi also wrote that the purpose of marriage is not only to produce offspring but also to ensure stable legal status for the partners, and that there is no rational reason to justify excluding same-sex couples. She said there is a shared international consensus against discriminating based on sexual orientation.

Chief Cabinet Secretary Yoshimasa Hayashi said yesterday’s ruling has not been finalized and that his government will continue to watch other pending court cases.

Still, the winning streak has raised hopes among the LGBTQ+ community.

Plaintiffs cheered outside of the court Wednesday, while their supporters held banners carrying messages such as “Further advance toward marriage equality!” and “No more waiting for legal revision!”

Makiko Terahara, a lawyer for the plaintiffs, welcomed the ruling, calling it historic. She and her fellow lawyers in a statement demanded the government immediately take steps “to open the door for marriage equality.”

“I felt grateful to be alive when I heard the word ‘unconstitutional’ from the judge,” said Yoko Ogawa, a plaintiff in her 60s. She said she worries about a lack of legal protection for her and her partner as they age, and that “I hope to see progress toward legalization as soon as possible.”

Their main obstacle, Japan’s conservative Liberal Democratic Party’s ruling coalition, lost a parliamentary majority in Sunday’s election and is likely to have to compromise on more liberal policies pushed by the opposition parties such as marriage equality, which is largely supported by the general public.

Japan is the only member of the Group of Seven industrialized countries that does not recognize same-sex marriage or provide any other form of legally binding protection for LGBTQ+ couples.

Six lawsuits on marriage equality have been filed at five regions across Japan since 2019. LGBTQ+ activists and their supporters have stepped up their efforts, and in 2023, the government adopted a law that is not legally binding that states discrimination is unacceptable.

Hundreds of municipalities have issued partnership certificates as a workaround for same-sex couples to lower their hurdles in renting apartments and facing other forms of discrimination, but it does not provide the same legal benefit as heterosexual couples, Wednesday’s ruling said.

The court, however, rejected a request by the seven plaintiffs that the government pay them 1 million yen (about $6,500) each in compensation for damages suffered under the current system that does not recognize them as legally married. MARI YAMAGUCHI, TOKYO, MDT/AP