Japan: Ban on Same-Sex “Marriage” Does Not Violate the Constitution

The Osaka District Court ruling is the second to be issued on the issue, disagreeing with one handed down last year by a Sapporo court that ruled the ban on same-sex marriages was unconstitutional.

Both decisions reflect the continuing division on the issue in Japan, the only G7 member that does not recognize same-sex unions.

The case will likely go to the Supreme Court of Japan, based in Chiyoda, Tokyo, which is Japan's highest judicial authority. It has the ultimate judicial authority within Japan to enforce the Constitution and decide questions of law.

In its decision, the Osaka court rejected the plaintiffs' request for one million yen (approximately €7,000) in damages per couple for the discrimination they suffered.

The plaintiffs are among 14 same-sex couples who filed lawsuits against the government of five major cities – Sapporo, Tokyo, Nagoya, Fukuoka and Osaka – in 2019 for violating cohabitation and equality rights.

They argued that they were unlawfully discriminated against by being denied the same economic and legal benefits that heterosexual couples enjoy through marriage.

LGBT rights groups had lobbied for an equality law ahead of last summer's Tokyo Olympics, when international attention was focused on Japan, but the bill was quashed by the ruling conservative party.

The Osaka court said on Monday that freedom of marriage in the 1947 constitution only refers to unions between men and women and does not include same-sex unions, and therefore the ban on same-sex marriages is not unconstitutional.

Judge Fumi Doi declared that marriage for heterosexual couples is established by society to protect a relationship between men and women who bear and raise children, and ways to protect same-sex relationships are still the object of public debate.

Under current rules in Japan, same-sex couples cannot inherit the property, house, or other property they share, and have no parental rights over each other's children. They are often prohibited from renting apartments together, as well as from visiting hospitals and other services offered to married couples.

More than 200 municipalities in Japan, or 12% of the total, have started issuing non-binding partnership certificates to same-sex couples since Tokyo's Shibuya district became the first to do so in 2015.

The Tokyo Metropolitan Government recently adopted a plan to accept registrations from October for sexual minority couples wishing to obtain certificates of their unions. However, it is not the same as a marriage certificate and does not provide the same legal protection.

Taiwan is the only Asian territory to have legalized same-sex marriage.