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What is the latest court hearing on same-sex marriage in Japan

Japan is the only country in the G7 that doesn't recognise same-sex marriage.

A supporter holds a banner where the two characters on it read "Unconstitutional", outside the court in Tokyo on November 30. (Reuters)

A court in Japan held the ban on same-sex marriage as constitutional on November 30. This is the second ruling in the country upholding the same-sex marriage ban after an Osaka ruling in June 2022. Japan is the only country in the Group of (G7)that doesn’t recognise same-sex marriage. As reported by The Guardian, a 2021 survey by public broadcaster NHK showed 57% of the public was in favour of gay marriage, versus 37% against.

What was the court case?

Eight people had appealed in the court saying the ban on same-sex marriage infringed upon their human rights, demanding damages of 1 million yen ($7,200) each.

What did the court say?

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The court said on Wednesday that Japan’s ban on same-sex marriage was constitutional. The Tokyo district court ruling, however, offered some hope to the plaintiffs, by adding that the absence of any legal system for same-sex couples to have families was an infringement of their human rights, reported Reuters.

What was the previous Osaka and Sapporo ruling regarding same-sex marriage?

In June, a court in Osaka had also passed judgement to continue the ban on same-sex marriages, almost a year after a court in Sapporo raised hopes when it ruled the ban was unconstitutional.

There were two key points in the Osaka ruling, as reported by Japan Times:

a)Whether the definition of marriage in Article 24 includes same-sex couples. Article 24 of the Constitution stipulates that “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.”

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b) Whether prohibiting same-sex couples the right to marry violates their right to equality under Article 14, which states, “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”

Both Sapporo and Osaka presented the same view regarding Article 24 that the Constitution defines marriage as matrimony between both sexes and includes phrases like ‘husband and wife’ and so does not include marriages between the same sex.

The Osaka District Court ruled that it is not against the Constitution, given that the gap in benefits between heterosexual and same-sex couples has been reduced thanks to partnership systems introduced by municipalities but had pointed out legal protection to same sex couple still being deliberated.

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However the Sapporo ruling sided with the couples who claimed the government was violating Article 14, describing the government’s failure to implement legal measures to offer “even a degree” of marital benefits to same-sex couples as “discriminatory.” Sapporo ruling said that allowing same-sex couples to get married is not the only way for them to be granted the same benefits as marriage.

What is the Shibuya ordinance?

In 2015, the Shibuya ward voted in favour of issuing certificates recognising same-sex unions as “equivalent to marriage”. As reported by The Guardian, the ordinance permitted local same-sex couples to rent apartments together and grant them hospital visitation rights as family members. Hospitals, real estate firms and other businesses were required to follow the ordinance, though it was not legally binding.

What are partnership certificates?

As reported by Japan Times, partnership certificates from municipalities now cover about 60% of the population in Japan after the Shibuya ordinance, including Tokyo, however they do not give same-sex couples the same rights enjoyed by heterosexual couples.

Municipalities now offer legally nonbinding certificates to recognise the family relations between lesbian, gay, bisexual, transgender and queer couples. Details differ by municipality, but in principle, partners recognised as a couple under the system will be able to move into public housing as family members and provide consent to medical treatment for one another.

How is a partnership certificate different from marriage?

As reported by Japan Times, the couple having a partnership certificate does not have joint custody of the child. They don’t have right to inheritance after one dies. The couple can’t get a joint mortgage for their home or spousal residence status for a partner with a partnership certificate and they can’t receive government benefits during child care leave once the couple’s baby is born, since that person is not legally the spouse.

First published on: 30-11-2022 at 15:50 IST
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