EDITORIAL: Diet behind the times in dealing with same
In a ruling on a same-sex marriage lawsuit, the presiding judge of a high court made a sincere appeal to the Diet, emphasizing the urgent need for measures to rescue people facing a daily sense of loss. How will the Diet respond?
In the first appeals court ruling in a cascade of lawsuits challenging whether provisions in the Civil Law and Family Register Law that do not recognize same-sex marriage are compatible with the Constitution, the Sapporo High Court on March 14 declared that the lack of legal recognition for same-sex unions violates Articles 14 and 24 of the Constitution.
While the Sapporo District Court at first instance deemed the situation a violation of Article 14, which establishes equality under the law, the high court went a step further by finding it in violation of Article 24, which defines the freedom of marriage and states that laws concerning marriage and family be based on the dignity of individuals.
The high court ruling goes further than the decisions by district courts across the country in referring to the Diet’s responsibility.
The first paragraph of Article 24 mentions the “mutual consent of both sexes” in relation to the freedom of marriage. The high court interpreted it as defining “the freedom of marriage between people,” stressing the importance of considering not just the wording but the social background that has recognized individual dignity.
It judged that the Constitution guarantees the freedom of same-sex marriage to the same extent as that of heterosexual marriage. The ruling prioritized relief for same-sex couples, based on the recognition that such couples, who are denied the protection of legal marriage, are in a situation where “the personality that constitutes an individual’s dignity is damaged.”
In a separate lawsuit, the Tokyo District Court the same day ruled the Civil Law and other laws were in a state of violating the second paragraph of Article 24. Of the six district court rulings on the constitutional issue that have been handed down so far, two declared the current lack of legal recognition of same-sex marriage was “unconstitutional” while three others said the situation was “in a state of unconstitutionality.”
There has been a clear and solid trend in the judiciary toward recognizing the unconstitutionality of the lack of marriage equality.
Even the Osaka District Court, which found it “constitutional,” mentioned the possibility of it being deemed unconstitutional in the future. All these district court decisions called on the Diet to make a prompt response.
A survey by The Asahi Shimbun in February last year found that 72 percent of the respondents said “same-sex marriage should be recognized by law.” More than 390 local governments have introduced a “partnership system” acknowledging relationships between two people of the same sex, covering more than 80 percent of the population.
Is the ruling Liberal Democratic Party, which has not even started discussions with the aim of introducing legislation to recognize same-sex marriage, unaware of the shift in the public’s perception toward accepting the existence of same-sex couples as a natural part of society?
After the Sapporo High Court handed down the ruling, one of the plaintiffs said: “My partner and I have reached the ages of 49 and 52 and we are starting to feel old. The longer the legalization (of same-sex marriage) is delayed, the shorter the time we can enjoy (the benefits) becomes.” One plaintiff in the Tokyo lawsuit had died.
Commenting on the high court judgment, Prime Minister Fumio Kishida, in a March 15 Upper House Budget Committee session, mentioned that other lawsuits are continuing and said, “We will continue to closely monitor the judgments.”
If the government and the Diet continue simply watching the judicial decisions, they at some point will stand accused of having failed to do the right thing.
Various social systems are based on heterosexual marriage. It is time to start working on consistent legislation to support marriage equality. There is no time to waste.
--The Asahi Shimbun, March 16