Japan high court rules same-sex marriage ban unconstitutional

TOKYO — A Japanese high court ruled Wednesday that the country's lack of legal recognition for same-sex marriage violates the right to equality under the Constitution, saying the ban leads to discriminatory treatment of people based on sexual orientation.

But the Tokyo High Court upheld a lower court ruling rejecting a demand by plaintiffs for the state to pay damages, citing the lack of a decision by the Supreme Court. It became the second high court to rule that the ban is unconstitutional.

The court also ruled that the marriage ban violates the section of the Constitution that says laws concerning matters pertaining to marriage and family "shall be enacted from the standpoint of individual dignity and the essential equality of the sexes."

Current civil law provisions "are not based on reasonable grounds" and lead to "discriminatory treatment (of people) based on their sexual orientation," according to the ruling.

Presiding Judge Sonoe Taniguchi acknowledged that recognition of a person's right to a spousal relationship with a partner should be respected as an "important legal interest" for all including those in same-sex relationships.

"The degree of social acceptance for granting (same-sex couples) the same protection as heterosexuals has heightened considerably," she said.

In dismissing the damages claim by the seven plaintiffs, Taniguchi said that since the Supreme Court has yet to rule on the issue, the court cannot find the government liable to compensate for the Diet's failure to take legislative action.

The seven plaintiffs, including same-sex couples, had demanded 1 million yen ($6,500) each from the state. They argued that civil law provisions not allowing same-sex marriage violate the right to equality under the Constitution and its guarantee of the freedom of marriage.

Article 24 of the Constitution that guarantees the freedom of marriage stipulates, "Marriage shall be based only on the mutual consent of both sexes."

Some of the plaintiffs and their supporters expressed joy after the ruling.

"The presiding judge's words flowed into my head and I realized that the judge took our arguments to heart. I am happy to be here today," said Chizuka Oe, one the plaintiffs.

Meanwhile, the government's top spokesman said the state will closely monitor developments of other similar lawsuits, adding that it also needs to take into account Diet deliberation as well as some local governments' move to recognize same-sex partnership.

The introduction of the same-sex marriage system "concerns the fundamentals of people's lives and is closely related to each person's view of the family," Chief Cabinet Secretary Yoshimasa Hayashi told a press conference.

The plaintiffs appealed after the Tokyo District Court rejected their damages claim in November 2022, while saying that the same-sex marriage ban is in a "state of unconstitutionality" -- a term used to indicate a call for the Diet to take action on the issue.

Japan remains the only Group of Seven major industrialized country that has not legalized same-sex marriage or civil unions, despite growing pressure from the LGBT community and its supporters.

Previous district rulings have varied, with the Sapporo and Nagoya courts saying that the lack of legal recognition of same-sex marriage is unconstitutional, and the Tokyo and Fukuoka courts ruling it is in a "state of unconstitutionality."

In the first high court ruling earlier this year, the Sapporo High Court said the country's lack of legal recognition of same-sex marriage is unconstitutional, upholding the lower court ruling in 2021.

Every court, however, had dismissed compensation claims.

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