Here’s this week’s Media Mix about two recent court rulings related to same-sex marriage, which remains illegal in Japan. One of the premises of the column is that marriage is mainly a social or cultural construct and that the legal protections guaranteed by state-sanctioned matrimony can easily be provided through other legislation. That’s why my friend in California didn’t really care much about getting married because the state already guaranteed the same kinds of rights that married couples enjoy for registered domestic partnerships. In Japan, many local governments have set up systems recognizing domestic partnerships for LGBTQ couples, but, unlike states in the U.S., they can’t guarantee certain rights, which remains the purview of the central government, and that means only marriages recognized by the central government receive such guarantees.
The ruling by the Sapporo District Court that found the denial of same-sex marriage to be a violation of the Constitution is significant because Sapporo was the first “designated” city in Japan to provide recognition of LGBTQ couples back in 2017. But all this recognition can do is provide guidelines. It has no legal force, which can only be provided by the central government. That means, unlike for married couples, same-sex partnerships cannot apply for dependent status for medical insurance or co-custody of children or spousal status for tax purposes or inheritances. According to the Asahi Shimbun, the certificate of recognition can be used to “demand” that public officials and businesses “treat” the partnership as they would a married couple, but the city has no power to penalize any organization or company for discrimination. What Sapporo hoped to do with the certificate is provide “family status” for same-sex couples looking to rent public housing or support for victims of crimes (for instance, if one of the partners is murdered, the other is eligible for compensation the way a spouse would be). But just saying so doesn’t make it true without the central government allowing for it. That’s why the presiding judge in the case said that regardless of her ruling about constitutionality, nothing could be done until the state changed the law. Ideally, a court declaring something unconstitutional would force a reckoning of the offending law, but that doesn’t seem to be the case in Japan, or, at least, not consistently. As always, the main culprit is the Civil Code, specifically the family registration system (koseki), which defines family relationships and gender and is considered fundamental with regard to family law in Japan.
Here’s an earlier column about same-sex marriage that covers similar ground.