- What is same-sex marriage?
- Same-sex marriage means an extension of the rights currently granted only to the opposite-sex marriage under national law.
At present in Japan, only opposite-sex couples are entitled to marriage.
Moreover, whether two individuals who wish to get married are considered “opposite-sex or same-sex” is determined by the state’s policy of only recognizing gender as defined by the individual’s koseki,or Japanese family registration. Couples of the same sex in terms of this legal definition cannot marry even if they are opposite-sex from the standpoint of gender identity.
But the biological sex, gender identity, or some legal definition of sex doesn’t make any difference in a couple’s desire to live their life together.
Same-sex marriage would enable couples to marry regardless of their gender, if they wish.
- What is the meaning of the name ”Freedom of Marriage for All” Legal Team ?
- When two individuals decide that “they want to live their life together,” they should have a choice of either getting married if they wish or remaining unmarried without being forced to do so.
This is “freedom of marriage.” Marriage is a choice that should equally be granted to couples whether they are of the same sex or opposite sex. This objective is reflected in the phrase “for All” in the naming of the legal team.
- Why are you seeking same-sex marriage?
- A couple whose gender is legally the same can’t marry, which means that they are not entitled to various rights.
For example, no matter how long they live together, the survivor can’t inherit the deceased’s properties without a will.
When a same-sex couple are raising children together, parental authority is not granted to both of them at the same time.
And if a Japanese national marries a partner of the opposite sex with foreign nationality, that partner can acquire resident status to live in Japan, whereas a foreign partner of the same sex cannott acquire such status to enable him/her to stay in Japan as a spouse.
There are other instances of this inequality.
In this framework, eligibility for receiving pension as the surviving “spouse” is stipulated in the law, while the survivor’s right to demanding compensation for damages is also protected through legal interpretation.
But in the case of same-sex couples, similar protection enjoyed by opposite-sex common-law marriage is not fully established. Also, there has been a case in which a survivor whose same-sex partner had been killed was denied survivor benefits when he filed a lawsuit to have the right to make an application for these benefits in accordance with the Law for Providing Compensation to Innocent Victims of Crimes.
Same-sex couples also suffer issues concerning health care. Although there is no legal restriction to force hospitals to accept only legally defined families as families, there are cases in which individuals whose partners are same-sex are denied explanation of a patient’s condition, visits, or a consent for clinical treatment, because they are not considered the patients’ legitimate family members.
We cannot accept the idea that we don’t need enactment of the same-sex marriage as long as there is love.
Even though the realization of same-sex marriage may not change the way people think immediately, it will definitely influence their reception of same-sex couples.
This is also the reason why we are advancing this lawsuit for same-sex marriage.
- In Japan, Shibuya Ward offers a special partnership certificate, which is similar to marriage.
Isn’t this type of partnership offered by local governments enough?
- Partnerships that are made available by local government bodies are completely different from marriage. Couples whose gender is the same as determined by the state’s legal definition have to undergo various difficulties because their union is not recognized by the law.
For example, the survivor can’t inherit the deceased partner’s properties; raising the children born from one’s partner together doesn’t give him/her parental guardianship if they are a same-sex couple; the partner of foreign nationality cannot acquire residential status as a spouse if he/she is of the same sex, and so on.
Such difficulties mainly derive from legal restrictions which special partnerships offered by the local governments have not legal purview over Of course, some of these issues are not bound by the law and can be resolved if landlords and medical institutions respect the union of same-sex couples.
Special partnership certificates may help understanding of same-sex relationships in society, but since there is no penalty when these certificates are disregarded, it may not necessarily lead to any resolution of the many issues same-sex couples face.
The fundamental solution to these difficulties requires enactment of an expanded notion that legislates marriage regardless of gender.
- Same-sex marriage is a violation of the Constitution. If you want same-sex marriage, you should openly demand constitutional reform.
- This is not true. The Constitution does not prohibit “ same-sex marriage” but rather protects an individual’s ability to marry the person he/she wants to live a life together as part of basic human rights. It is the rejection of “ same-sex marriage” that is a violation of the Constitution.
Those who believe that same-sex marriage violates the Constitution seem to think that the Constitution prohibits marriage of same-sex couples on the basis of the wording in Article 24, Paragraph 1 of the Constitution of Japan, “Marriage shall be based only on the mutual consent of both sexes.” (cited from the website of the Prime Minister of Japan and his Cabinet)
However, the Constitution does not prohibit same-sex marriages anywhere at all. Furthermore, the old civil law of Japan, which had been in effect until 1947, required consent of koshu, or the head of a family (the person who has the most authority in a family), in addition to the “mutual consent of the persons concerned” under the old family system. It is the Constitution of Japan, Article 24, Paragraph 1, which abolished this requirement and stipulated gender equality by reforming family laws that excluded women from property rights. Therefore, the meaning of this wording is, “from now on, marriage shall be based solely on the mutual consent of the persons concerned.”
There importance of the freedom of marriage is not dependent on whether one’s partner is of the opposite or same sex in terms of the law. It is an unfair violation of the freedom of marriage protected by Article 24, Paragraph 1 of the Constitution of Japan to deny the right to choose whether one wants to marry or not, or when and with whom he/she wants to marry simply because one’s partner is of the same sex.
It is unjust discrimination which goes against the principle of equality defined in Article 14 of the Constitution to allow different treatment for same-sex couples and opposite-sex couples.
There is no need at all to reform the Constitution to enable same-sex marriage. We only need to revise the existing civil law, the Family Register Act and other related laws, not the Constitution.
Please refer to the section, “The Constitution and Same-Sex Marriage: Is same sex marriage a constitutional violation? Or is the denial of the same-sex marriage a violation of the Constitution?” for more details.
- But doesn’t the Japanese government uphold a view that “ same-sex marriage is banned by the Constitution”?
- So far, the government has not stated that “the Constitution prohibits same-sex marriage.” This standpoint is also supported by the consensus of scholars on this subject.
One member of the National Diet has asked a question in the Diet exactly on this topic. He asked, “does the government uphold the view that same-sex marriages can be interpreted as unconstitutional because of Article 24, Paragraph 1 of the Constitution of Japan?” To this question, the government did not answer that “it is a violation of the Constitution,” though it said that the Constitution “was not predicated on the assumption of the formation of same-sex marriages.” (The government’s formal response to “the question on same-sex marriage under the Constitution of Japan” by Seiji Osaka, member of the House of Representatives《the question asked by a member of the House of Representatives to the Cabinet 196 No. 257, May 11, 2018》）
Moreover, in the same answer, the government stated in relation to the government’s non-acceptance of marriage registrations by same-sex couples is that “’a married couple’” referred to in the Civil Law (Act No. 89 of 1896) and the Family Register Act (Act No. 224 of 1947) means a man as husband and a woman as wife who are the persons concerned in marriage, which is the reason why the same-sex marriages are not legally recognized and marriage registration is not accepted.” In this way, the government mentioned the Civil Law and the Family Register Act as the ground for non-acceptance but did not cite the Constitution as the reason for non-acceptance.
For more information, please read the section “The Constitution and Same-sex Marriage: Is the same-sex marriage a constitutional violation? Or is the denial of the same-sex marriage a violation of the Constitution?”
- Wouldn’t allowing same-sex marriage contribute to the declining birthrate?
- The issues of same-sex marriage and the declining birthrate are completely unrelated.
Same-sex marriage has become recognized in 25 countries and regions so far, but there has been no scientific proof that its implementation has affected birth rates in these countries.
Even if same-sex marriage is allowed, heterosexual people are not likely to get married to people of the same sex, so the situation will remain the same.
The assumption that “allowing same-sex marriage will lower the birth rate,” shows two misunderstandings: 1) allowing same-sex marriage will increase the number of homosexual people, and 2) as long as we don’t allow same-sex marriage, homosexual people will eventually marry someone of their opposite sex. However, since sexual orientation cannot be changed by one’s will, implementing same-sex marriage will not increase the number of homosexual people as stated above in the first claim,.
Since the rate of people who stay single for their entire lifetime in Japan is also increasing year by year, we may assume that the percentage of sexual minorities who “choose to get married to someone of the opposite sex because same-sex marriage is prohibited (and they are pressured by those around them)” will remain small. Birth rates will not increase significantly by prohibiting same-sex marriage. Above all, we should reject a perspective that forces serious life choices, such as marriage and childbirth, for the benefit of the state.
- Since people get married to have children, why should we allow same-sex couples who can’t have children to get married?
- There is no rule by law that states that you cannot get married if you cannot have children.
Indeed, men who have azoospermia–i.e. an absence of motile sperm–or women who have had their uterus or ovaries removed because of health reasons can get married. Furthermore, even if these couples find themselves in such situations after they are married, it does not invalidate or annul their marriage. As an example, the current law requires the sterilization of applicants that want to change their gender status (*1). Transgender people who have gone through sex reassignment surgery, sterilization, and a legal change of status to their gender can get married. (*2) Couples that clearly cannot have children, such as those of “deathbed marriages” done right before somebody passes away, or those in “prison marriages” with partners serving time in prison, can also get married.
Without dispute, marriage is an institution separate from one’s reproductive ability. Therefore, it cannot serve as a reason to deny same-sex couples that are unable to have children from getting married. Most likely you know of some couples that don’t have children but are happily married. The institution of marriage is essentially created to protect the right for two people to live happily together.
*1 Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder, Article 3, paragraph (1), item (iv): “…has no reproductive glands or whose reproductive glands have permanently lost function;”
*2 Since the requirement for changing one’s gender status is that “the person cannot currently [be] married under Article 3, paragraph (2) of the Act on Special Cases in Handling Gender Status for Persons with Gender Identity Disorder,” someone who is married cannot change their gender status. If an unmarried person changes his or her gender status, people who were unable to marry because they were legally the same sex will be handled as the opposite sex, legally allowing them to marry. Meanwhile, people who were legally of the opposite sex before changing their gender status would legally become the same sex afterwards, and unable to marry under the current Japanese law.
- Allowing same-sex marriage would lead to allowing same-sex couples to raise children. But a child’s healthy upbringing requires the love of a father and a mother. From the viewpoint of the child being raised, I oppose same-sex marriage.
- Same-sex parenting is already taking place in various areas including Europe, the United States, and Japan. There is no definitive research evidence that indicates that lesbian or gay couple parenting has a negative effect on children.
In fact, scientific studies conducted by the American Psychological Association or the University of Melbourne have concluded that same-sex parenting has no negative impact on children. There are even recent studies that indicate that same-sex parenting provided a positive environment for children.
Additionally, the U.S. Supreme Court ruling that enabled same-sex marriage in the country stated that doing so would protect the children and families being raised by such couples, and allowed it.
- Why are you demanding for marriage when there are many issues with the current institution of marriage? Shouldn’t you be demanding for a partnership system that is legally effective?
- The institution of marriage carries issues such as requiring the couple to share the same last name, but the conditions or requirements of the institution have not always been fixed. The conditions of marriage are not immutable.
Current marriage has changed significantly since the Meiji era.
Under the Old Civil Codes of the Constitution of the Empire of Japan enacted during the Meiji Era, marriage required the consent of the head of the household, and in many cases parents determined marriage partners against the person’s will. However, this idea was fundamentally revised after the war, and the consent of the head of the household became unnecessary.
Some recent changes have also taken place. Women used to face a six-month waiting period before getting remarried, but the Civil Code was amended following a Supreme Court ruling in 2015, reducing the period to 100 days. In this way, the institution of marriage is never a fixed thing but rather something that can be modified and improved in accordance with the change in values of the times. Even if the institution of marriage itself has issues, that shouldn’t prevent us from demanding the legalization of same-sex marriage. In addition, while legally effective same-sex partnerships are important and recognizing the diversity in relationships, in terms of having access to the institution of marriage, they do not eliminate the inequality between heterosexual and homosexual couples. Even if the legal effects were exactly the same, the treatment of same-sex couples as second-class citizens would still continue.
Creating a new system would require much more time compared to making the existing institution of marriage legally accessible to same-sex couples.
- Why is a lawsuit being filed now when this problem has always existed and there have always been people who have struggled because they could not get married?
- Homosexuality has been subject to discrimination and prejudice in Japan for a long time. People who are attracted to the same sex have carried a strong sense of fear that they themselves would become subject to such discrimination and prejudice, and have struggled to come out and talk about their sexual orientation. Unfortunately, we cannot deny that this situation still exists today.
However, especially in recent years discrimination against homosexuality has gradually decreased in Japan and abroad. An increasing number of countries are implementing legal protections for same-sex couples; current G7 countries (the United States, France, the UK, Germany, and Canada) except Japan and Italy have allowed same-sex marriage, and Italy has a partnership system on a national level.
Even in Japan, an increasing number of local governments have publicly approved same-sex couple relationships, and together with companies some have started extending the same benefits to same-sex couples as well. Under these circumstances, people have started to raise their voices to legalize same-sex marriage. Back when discrimination and prejudice against homosexuality were more prominent, people could not even imagine speaking out and protesting even if they wanted to do so. Things have gradually changed since then, and now we have finally arrived at a stage where we can demand for the legalization of same-sex marriage.
Since couples have no access to same-sex marriage every day, it is never “too soon” to legalize it.
- In contrast to Western countries where sodomy laws (which criminalized certain sexual behaviors such as intercourse between those of the same sex) existed, Japan has traditionally been tolerant of homosexuality. Is same-sex marriage unsuited for Japanese culture?
- Whether Japan has traditionally been tolerant towards homosexuality or not, the fact that we have such a society does not mean that we do not need to allow same-sex marriage. In addition, allowing same-sex marriage is not a matter of culture, but a matter of human rights.
The freedom of marriage is a basic right that should be granted to everyone equally, regardless of their sexuality. It is irrelevant whether society is tolerant towards or culturally accepting of homosexuality. In addition, there is no difference between Japan and the West in terms of not having a tradition or culture that allowed same-sex marriage.
Same-sex marriage gained recognition in the West because of an increased understanding that it this issue is a matter of human rights, and that not allowing same-sex marriage is discrimination based on sexual orientation.
One cannot deny this rather worldwide common understanding in the name of tradition or culture.
- My gay friend does not particularly want to join the institution of marriage and says, “Even if same-sex marriage is allowed, I don’t plan on using it. I’d rather be left alone.” Couldn’t you say that the majority feels this way?
- Some heterosexual people don’t get married but that does not justify saying that the institution of marriage as unnecessary. It is also a fact that since homosexual people have been removed from the institution of marriage, some of them have difficulty planning their life around it. However, the existence of people who do not seek marriage does not justify the deprivation of the rights of people who do seek it. It seems rather natural to provide the option of marriage to homosexual people who face difficulty in living alone, or would like to form a family with a particular partner.
- Why is marriage an issue when it is possible to make individual arrangements such as making a will or choosing to adopt?
- A will is relevant only after one’s partner passes away. So it does not have a legal effect while a couple is living together and sharing their lives. In addition, rigid formalities must be followed to execute a will, which leaves a risk of the will being nullified when one fails to adhere to all regulations, making it quite different from being a legal heir as a spouse even without a will.
*The legally reserved portion that one is entitled to also varies, depending on whether one is a spouse or not.
While it is, in fact, possible to become related through choosing the legal option to adopt one’s partner as a dependent, or to come into an inheritance left to one after a partner passes away, either option has a limited legal effect compared to what is entitled through marriage. Moreover, in the former instance, it is not the parent-child relationship that a couple seeks, to begin with.
Once married, rights and obligations arise for spouses in their shared life as they are obligated to live together, support each other (such as sharing the cost of living), and remain faithful to each other, for example.
A couple also share rights and responsibilities for their child, fulfilling their parental responsibilities together, or maintaining rights to see their child regularly when they are separated. As such, we cannot possibly say that it is enough to be able to make a will or choose adoption.
*There is a right to claim a specific portion of the inheritance regardless of a will, depending on one’s relation to the deceased. For example, in the case where a parent is the only legal heir other than a spouse, if you are married to the deceased, the parent can only claim one-sixth of the inheritance. However, if you are not married, the parent is entitled to one-third of the inheritance, which is twice as much. Additionally, in the case when both the mother and father are alive and well, each parent’s legally reserved portion will be halved, making their combined portion one-sixth or one-third of the inheritance.
- How can we achieve same-sex marriage in Japan? Is there anything I can do to help?
- For same-sex marriage to take place in Japan, a system (law) that allows marriage between a same-sex couple by law needs to be legislated in the Diet. In addition, if a court issues a ruling that states the current marriage system is unconstitutional by not allowing marriage between same-sex couples, it will encourage the Diet to establish a marriage system that enables same-sex couples to marry.
Many people including yourself have the power to influence the Diet or the court by continuing to express publicly that you want same-sex couples to be able to marry, and that it is discriminatory not to approve same-sex marriage. It may also be a good idea to appeal to a local member of the Diet to legalize same-sex marriage.
Moreover, please support this lawsuit as well. There are ways for you to support our action such as: signing the petition in support of the Marriage for All Japan lawsuit, attend the trial, support our crowdfunding campaign, make donations, and so on.
Let us all work together to enable same-sex marriage.