Francis Davey

Explainer on recent Tokyo High Court judgment on same sex marriage. I have been waiting for the judgment in the recent Tokyo High Court judgment finding the lack of same sex marriage constitutional to appear on the courts.go.jp website. Since huffpost has posted what is close to that - the synopsis distributed by the courts to the press in newsworthy cases - I will work from that instead. To appreciate any of the decisions on this issue it is important to understand the cause of action, which is that these are tort cases brought against the state for damages caused by the Diet's failure to pass legislation required by the constitution (and these requirements may change over time). This is a very hard cause of action to "win" on, since the Diet has a great deal of discretion on when, how and what to legislate. However, winning the cause of action (= getting an award of damages) is not really the goal, as opposed to getting the court to say something about the constitutionality of the situation. In that framing, winning becomes an analog concept in terms of using the courts to deliver a message to the Diet, in which case "might be unconstitutional in the future but isn't now" is a form of "winning" because it puts the Diet on notice that it needs to "do something." What constitutes "doing something" is likely up to the Diet in any case. Since the cause of action depends on alleged harmful unconstitutionality, what parts of the constitution are being breached are important factors. In this judgment the relevant provisions are article 14 (general equality and non-discrimination), article 24(1) (marriage to be based on the free will of both sexes and equality of husband and wife) and article 24(2) (family law to be based on dignity of the individual and equality of both sexes). I have seen a certain amount of criticism of this judgment from Japanese legal circles because it quotes the language in the preamble about securing "for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land." The Japanese of "posterity" (子孫）might be better translated "descendants" because this ties marriage to more than just spouses but children. Referencing the preamble is unusual, as it has no real legal character. But it does tie into part of the court's rejection of the article 24(1) claim, which is based on the broader system of family law which ties marriage to legitimacy of children and the surnames they use. Here it is important to appreciate that while a court (the supreme court, at least) can declare a law void because it is unconstitutional, it cannot rewrite the law, so implicit in this seems to be that there is more to just saying same sex couples can get married the same way, because other changes in law relating to children that would be required. As to the article 24(2) claim, the court basically notes that same sex couples are already in the same situation as male-female couples in defacto marriages, which are addressed through private law, employer policies, contract and local government rules. As for the article 14(1) claim, the court seems to give it short shrift. Article 14(1) is generally interpreted as giving the Diet discretion to create legislation that treats people differently for various reasons (and a lot of legislation does) so long as those are reasonable (<< a great oversimplification). Given the more specific mandates of article 24 as to family law, it is probably difficult to win on a 14(1) claim without winning on one of those. The court goes out of its way to reject the notion that foreign countries are recognizing same sex marriage, therefore Japan should too. The above is just me trying to make sense of what this court was doing, not an endorsement of any particular view of the subject. huffingtonpost.jp/entry/stor…