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Same-sex marriage continues to be an issue of contention. Proponents and opponents, both, base their respective judgments on morality, religion, constitutionality, justice, and natural or human rights (among others). On Monday, June 20, a Japanese court concluded that the country’s ban on marriages of persons of the same sex is constitutionally protected. The plaintiff’s underlying premise was that Japan’s prohibition is, in effect, an unequal application of the law. What has occurred in the Nipponese nation could establish a precedent for other countries to follow, considering how divided societies are on the matter.
What Does Japan’s Constitution Say?
The Osaka District Court ruling overrode a lower court’s decision in Sapporo which claimed that Japan’s proscription of gay marriage violated the Constitution. The constitutional safeguard of the institution of marriage explicitly refers to this legal union as one between a man and a woman. Article 24 of the 1947 Japanese Magna Carta states 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.”
The Sapporo court rested its position on Article 14 which stresses that Japanese citizens are “equal under the law” and prohibits discrimination based on “race, creed, sex, social status or family origin.” The textual specificity of marriage as outlined in Japan’s constitution as a legal enjoining between the two exclusive biological sexes, however, had greater constitutional merit. The matter at hand, after all, was specifically marriage. It did not deal with other factors where discrimination and equal due process may be an issue.
Implications for Other Nations
Japan has legal alternatives to address non-marital civil unions. Over two hundred municipalities across the Nipponese Island have already offered partnership certificates for gay couples and recognize their existence since 2015. While not as broad as marriage, from a legally binding standpoint, these certified acknowledgments have addressed, partially, many of the concerns of same-sex relationships. Considering that Japan has strong property rights protection that is constitutionally embedded, issues of inheritance and wealth transfer that the partnership certificates may omit (depending on the local government), can be potentially resolved by alternate legal instruments.
Many people forget that same-sex marriages in the U.S. are a recent phenomenon. It may stand as a legally settled matter; however, American society remains divided on the issue. Obergefell v. Hodges was the 2015 Supreme Court (SCOTUS) case that legalized gay marriage in the U.S. The 5-4 decision tells us that it was far from consensual. It was and remains contentious. This is the reason Congress enacted the Defense of Marriage Act (DOMA) in 1996. DOMA defined marriage as a union between a man and a woman.
Is America’s Obergefell a Settled Matter?
United States v. Windsor was the prelude to the legalization of gay marriage in America. This 2013 SCOTUS case ruled that Section 3 of DOMA was unconstitutional. The argument that the slim 5-4 majority made was that the notion of equality under the law, as characterized by the Due Process Clause of the 5th Amendment, was being violated. The plaintiffs in the Japanese case made the same argument. The underlying legal difference between the American and Japanese cases was one of language and specificity. Japan’s constitution, drafted by American military legal staff under the supervision of General Douglas MacArthur, defined marriage concretely. The U.S. Constitution does not.
The decision rendered by the Osaka District Court, concluding that Japan’s gay marriage prohibition is consistent with the Japanese constitution, could have ramifications far beyond the island. The belief that an apparent contradiction between two articles (24 and 14) in that country’s supreme legal document, could somehow weigh one over the other (the argument made by the pro-gay marriage plaintiffs), was not sustained. Language matters, and in this situation settled the question in favor of the view that marriage is a legal bond strictly between the two biological sexes.
Julio M Shiling, political scientist, writer, director of Patria de Martí and The Cuban American Voice, lecturer and media commentator. A native of Cuba, he currently lives in the United States. Twitter: @JulioMShiling // Julio es politólogo, escritor, director de Patria de Martí y The Cuban American Voice. Conferenciante y comentarista en los medios. Natural de Cuba, vive actualmente en EE UU.