Constitution and same-sex marriage: Is same-sex marriage unconstitutional? Or is it unconstitutional not to guarantee equal rights for same-sex couples to marry?
Some people say that it is unconstitutional to establish a system to allow same-sex marriage under the current Constitution of Japan.
However, this is not the case. The Constitution does not prohibit same-sex marriage. On the contrary, to marry a person one loves is a basic human right guaranteed by the Constitution. It is, in fact, unconstitutional not recognizing same-sex marriage.
Interpretation of “the mutual consent of both sexes” as stated in Article 24, Paragraph 1 of the Constitution
People who consider same-sex marriage unconstitutional seem to base their notion on the wording in the Constitution: “the mutual consent of both sexes.” This is interpreted to mean that marriage between same-sex couples is constitutionally prohibited.
Article 24, Paragraph 1 of the Constitution stipulates, “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.”
Should we actually interpret this provision to prohibit same-sex marriage? The Constitution is a kind of law that stipulates explicitly what it prohibits.
For example, it is explicitly stipulated in Article 21, Paragraph 2 of the Constitution, “No censorship shall be maintained,” or in Article 20, Paragraph 1, “No religious organization shall receive any privileges from the State, nor exercise any political authority.”
The Japanese Constitution sets the fundamental national goal for all people to “be respected as individuals” (Article 13), stating in the Constitution clearly what is essential to achieve this goal is the supreme law. If it truly denies marriage between couples of the same sex, the Constitution would have directly stipulated that it would “prohibit” or “not recognize” same-sex marriage.
However, nothing is mentioned about prohibiting marriage between partners of the same sex.
Please review Article 24, Paragraph 1 of the Constitution again and consider this different viewpoint.
Under the old civil law that was in effect until 1947 in Japan, the traditional family system required not only the consent between the partners themselves but also the approval of the head of a household or family– the most significant member of the household–for the couple to be allowed to marry. Article 24, Paragraph 1 of the Constitution was stipulated to guarantee the equality between women and men by abolishing the old system, amending the family law system that discriminated against women by denying their right to own property, for example.
The Constitution intends to state that it is now possible for a couple to get married “based only on the mutual consent of both persons.”
It is a heavy-handed, mean-spirited interpretation to argue that same-sex marriage is Constitutionally prohibited based on the wording, “both sexes,” contained in Article 24, Paragraph 1 of the Constitution. It is also a common theory today that the Constitution does not prohibit same-sex marriage.
On the current governmental view
At the moment, the Japanese government does not take a view that the Constitution prohibits same-sex marriage.
There is a reference on this subject in Koseki Jiho (Journal of the Family Registration) No. 739 (published on June 20, 2016 by Nihon Kajo Publishing Co., Ltd.) in the text of the lecture of Mr. Koshi Yamazaki, Director of the Civil Affairs First Division of the Ministry of Justice Civil Affairs Bureau at the time. Mr. Yamazaki states that it is difficult even for the Ministry of Justice to determine whether or not it is a constitutional issue. As such, they do not mention the Constitution any more as the reason to refuse to issue marriage certificates (this is done by issuing ‘registration non-accepted’ slips to same-sex couples when attempting to register) for same-sex couples.
“In terms of same-sex marriage, there is a controversy on whether it is recognized in the Constitution. If it is not recognized constitutionally, then it will also not be recognized by law. On the other hand, however, some believe that the Constitution does not necessarily deny same-sex marriage. If this view is validated, it leaves us room to consider legalizing same-sex marriage as constitutional.
It says there used to be a time when a non-acceptance certificate was issued based on the unconstitutionality of same-sex marriage when a same-sex couple submitted a marriage registration application. I believe such is not the case anymore, however, after I became Director of the Civil Affairs First Division. Municipal governments do not go that far in stating the reason for not accepting a marriage registration application submitted by same-sex couples.
This is because such constitutional matters are probably quite difficult in itself for municipal governments to comment on, and no easy matter for even the Ministry of Justice to remark on as well. Therefore, non-acceptance certificates are issued these days on illegal grounds, for it is at least obvious that the current Constitution does not presuppose same-sex marriage.”
(From the lecture text of Mr. Koshi Yamazaki, who was Director of the Civil Affairs First Division of the Ministry of Justice Civil Affairs Bureau at the time, which was published in Koseki Jiho No. 739 [published on June 20, 2016 by Nihon Kajo Publishing Co., Ltd.])
This view is also clear in the government’s reply to the “Question regarding same-sex marriage under the Constitution of Japan” posed by House of Representatives Member Seiji Osaka (Government Answers for Memorandum of Questions No. 257 of House of Representatives, the 196th National Diet of Japan. May 11, 2018).
“As I understand it, the description in question on the non-acceptance certificate is based on the fact that current laws and regulations do not recognize the establishment of same-sex marriage. In other words, the Civil Code (Act No.89, 1896) and the Family Register Act (Act No. 224, 1947) only recognize marriage between “husband and wife,” which refers to both parties of the marrying couple, consisting of a husband who is a man and a wife who is a woman. As such, same-sex marriage is not recognized by law, and an application for marriage registration submitted by a same-sex couple cannot be accepted.”
As mentioned above, the government does not base its reason not to accept registration applications submitted by partners of the same sex because of the law in Article 24 of the Constitution on the grounds that it prohibits same-sex marriage.
Furthermore, when Mr. Osaka asked, “Does the government consider same-sex marriage to be unconstitutional as it is against Article 24, Paragraph 1 of the Constitution of Japan?” the government’s reply was as follows.
“Article 24, Paragraph 1 of the Constitution stipulates, ‘Marriage shall be based only on the mutual consent of both sexes’. It does not anticipate recognizing the establishment of marriage between couples where both are of the same sex (hereinafter referred to as ‘same-sex marriage’). In any case, the question on whether to recognize same-sex marriage is an issue that concerns the very core of family values in our country, and, I believe, one that requires extremely cautious consideration. So it is not reasonable to indicate that the government fails to fulfill its responsibility by not establishing a system necessary for same-sex marriage.”
The government merely states that the Constitution “does not anticipate recognizing the establishment” of same-sex marriage, and not that it is “unconstitutional” or “should not be recognized.”
Not recognizing same-sex marriage is unconstitutional.
To choice to be able to live one’s own life is very important: to be able to go through life, meet someone, living together with that someone as partners, and then deciding to marry. Such essential choices in life are guaranteed by the Japanese Constitution as basic human rights for a person to “be respected as individuals.” (Article 13) Article 24, Paragraph 1 of the Constitution stipulates, “Marriage shall be based only on the mutual consent of both sexes,” because it is our constitutional right to decide on our own whether or not to marry, or when and whom to marry (freedom to marry).
The freedom to marry is, in fact, essential whether a marriage takes place between partners legally considered to be of different sexes or the same sex. It is an unjust violation of the freedom to marry guaranteed by Article 24, Paragraph 1 of the Constitution to deny a person the right to decide whether or not to marry, or when and whom to marry, just because one’s partner is of the same sex. Discriminating between same-sex couples and opposite-sex couples in such a manner is also unfair discriminatory treatment that goes against the principle of equality stipulated by Article 14 of the Constitution.
It is not at all necessary to revise the Constitution so as to establish a system that enables same-sex couples to marry. We only need to make amendments to laws such as the Civil Code and the Family Registration Law.
Translated by Fruits in Suits Japan