Constitution and same-sex marriage
Constitution and same-sex marriage:
Is same-sex marriage unconstitutional?
Or is prohibiting same-sex marriage unconstitutional?
Some people say that it would be unconstitutional to establish a system that allows same-sex marriage.
However, this is not the case. The current Constitution does not prohibit same-sex marriage. On the contrary, since the right to marry who one desires is a fundamental human right guaranteed by the Constitution, not recognizing same-sex marriage is unconstitutional.
People who consider same-sex marriage to be unconstitutional may be basing their views on the section of the Constitution which stipulates that “marriage shall be based on the mutual consent of both sexes.” They interpret this 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 understand this as a prohibition of same-sex marriage?
Not quite. The Japanese Constitution has a tendency to explicitly state what it prohibits. For example, Article 21, paragraph 2 of the Constitution stipulates that “No censorship shall be maintained.” Similarly, Article 20, paragraph 1 states that “No religious organization shall receive any privileges from the State, nor exercise any political authority.”
As the supreme law of the nation, the Japanese Constitution sets a fundamental national goal for all people to “be respected as individuals” (Article 13) and clearly stipulates the laws necessary to achieve this. If it truly intended to ban same-sex marriage, the Constitution would have directly stipulated that it “prohibits” or “does not recognize” same-sex marriage.
However, the Constitution does not mention same-sex marriage at all.
In light of all of the above, it is important to re-read Article 24, paragraph 1 of the Constitution and approach it from a different perspective.
Under the old Japanese Civil Code, which was in effect until 1947, marriage required not only the will of the parties concerned, but also the consent of the head of the family (the person considered to be the most important person in the family) in line with the traditional family system. Article 24, paragraph 1 of the Constitution abolished this requirement and changed legal systems regarding the family that discriminated against women (such as those that prohibited women from owning property) and guaranteed equality between men and women.
What the Constitution meant was, “from now on, you can only get married with the consent of both parties, without the approval of the head of the family.
Arguing that same-sex marriage is unconstitutional based on the wording, “both sexes” in Article 24, paragraph 1 of the Constitution is a strong-armed interpretation in bad faith. The current widely accepted theory is that the Constitution does not ban same-sex marriage.
The government’s present opinion
At present, the Japanese government has not stated 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 it is a constitutional issue. As such, they no longer cite the Constitution as a reason in the Certificate of Non-Acceptance issued to same-sex couples who attempt to file a Marriage Registration application.
“There is ongoing debate regarding whether same-sex marriage is allowed under the Constitution. If the Constitution prohibits same-sex marriage, then naturally, it will not be legalized. On the other hand, some believe that the Constitution does not necessarily prohibit same-sex marriage. If this position is correct, it opens up the possibility that legalizing same-sex marriage would not be unconstitutional.
Previously, when same-sex couples submitted a Marriage Registration application, they were sometimes issued a Certificate of Non-Acceptance that cited the unconstitutionality of same-sex marriage. I don’t think this has happened since I became Director of the Civil Affairs First Division. Now, 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 for municipal governments to comment on. It is not an easy matter for even the Ministry of Justice to weigh in on, either. Therefore, Certificates of Non-Acceptance are currently issued on the grounds that same-sex marriage is unlawful, as it is clear that the current Civil Code does not presuppose same-sex marriage.”
(Source: Transcription of a lecture by Koshi Yamazaki, Director of the Civil Affairs First Division of the Ministry of Justice Civil Affairs Bureau at the time of the recording. Koseki Jiho No. 739 [published on June 20, 2016 by Nihon Kajo Publishing Co., Ltd.])
This stance is also clearly expressed 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 (Cabinet, House of Representatives Answers to Question No. 257, 196th session of the National Diet of Japan, May 11, 2018).
“Our understanding is that the description in question on the Certificate of Non-Acceptance 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 of 1896) and the Family Register Act (Act No. 224 of 1947) only recognize marriage between “husband and wife,” which is defined as a husband who is a man and a wife who is a woman who are the parties to a marriage. As such, same-sex marriage is not recognized by law, and we cannot accept Marriage Registration applications from those who intend to marry someone of the same sex.”
As we can see from the above response, when explaining the basis for their refusal to accept Marriage Registration applications from same-sex couples, the government does not claim that Article 24 of the Constitution prohibits a marriage system that allows same-sex couples to marry.
Furthermore, when Representative Osaka asked, “Do you currently consider same-sex marriage to be unconstitutional and in violation of Article 24 of the Japanese Constitution?” the government’s response was the following:
“Article 24, paragraph 1 of the Constitution stipulates that ‘Marriage shall be based only on the mutual consent of both sexes.’ Article 24 is not intended to recognize the establishment of marriage between same-sex couples (hereinafter referred to as ‘same-sex marriage’). In any case, the issue of whether to recognize same-sex marriage is one that affects the very nature of what it means to be a family in our country and should be considered with extreme caution. Therefore, criticism that the government fails to fulfill its responsibilities by not establishing a system recognizing same-sex marriage is not applicable.”
The government merely states that the Constitution “is not intended to recognize the establishment” of same-sex marriage, and has not said that same-sex marriage is “unconstitutional” or that it “should not be recognized.”
Even in the “Marriage for All” lawsuits, although the government claims that it “does not expect” to recognize same-sex marriage, it has not claimed that same-sex marriage is “unconstitutional” or “should not be recognized.”
Not recognizing same-sex marriage is unconstitutional.
Meeting someone special over the course of our life, living life together, and deciding to marry are important milestones in our lives that enable us to live true to ourselves. Such aspects of life are especially important in order for people to “be respected as individuals” (Article 13) and is therefore guaranteed by the Japanese Constitution as a basic human right.
The reason Article 24, paragraph 1 of the Constitution stipulates, “Marriage shall be based only on the mutual consent of both sexes,” is because it is our constitutional right to decide for ourselves whether or not to marry, as well as when and whom to marry.
Freedom of marriage is an essential right for all, regardless of whether couples are legally same-sex or opposite-sex.
Denying people the right to choose marriage as well as decide when and whom to marry based on the legal sex of their partners is an unjust violation of the freedom of marriage guaranteed by Article 24, paragraph 1 of the Constitution.
Furthermore, discriminating between same-sex couples and opposite-sex couples in such a manner is unjust and discriminatory treatment that violates the principle of equality stipulated in Article 14 of the Constitution.
There is absolutely no need to amend the Constitution in order to establish a system that allows same-sex couples to marry. We only need to amend laws such as the Civil Code and the Family Register Act.
Not recognizing same-sex marriage is unconstitutional.