In Japan, there is no law which entitles members of the same sex to marry each other. This is something that infringes upon the rights of an individual, which the Constitution should protect, and is a violation of human rights and equality. In response to this, ten same-sex couples living in Japan have taken action and filed a lawsuit to have the court determine that it is unconstitutional to deny the right to marry to same-sex couples.
Why a lawsuit?
In order to legalize same-sex marriage, amendments need to be made to Civil Law and Family Registration Law. For this, the Diet (the legislature) where laws are passed, needs to take action and this is the most direct way to make them do so.
However, Diet members are elected by the public and represent the majority view, and they do not appear to be interested in amending the law for so-called “sexual minorities” anytime soon. If we are just waiting for the Diet to take action, there is no telling when they will actually do so.
This is where the cour, the judiciary, comes into play. The role of the court is to say “even if it is something decided by the majority, when it infringes upon the rights of the minority we cannot allow it.” One can say the judiciary is the last line of defense for individual rights.
We have filed lawsuit in the hopes that the court will fulfil its role and determine that it is an “unconstitutional violation of human rights” to deny marriage to same-sex couples.
Why a national compensation claim?
In this lawsuit, we are making a claim that “the fact that the Diet is not amending the law to allow same-sex marriage is a violation of human rights based on the constitution, and the country should make compensations.” The lawsuit’s legal terminology for this is called “a charge of legislative inaction or omission,” and this inaction of Diet members is illegal.
You may be wondering why we are asking as a formality for reparations of 1 million yen in this case. What we are really demanding is a law that recognizes same-sex marriage. It is not money that we are seeking.
Why are we asking for money then?
The Japanese judiciary system is not able to pass judgements solely regarding interpretations of the Constitution itself. The court must decide first among many lawsuits that might have a concrete violation of rights against a defendant. Then among those determine if an examination of the Constitution is necessary. Only these latter cases decided as such shall be reviewed.
It is not permitted to file an abstract lawsuit requesting a judgement on the constitutionality of equal marriage. We need to give specific cases of how same-sex couples’ rights have been violated. Therefore we will first make a claim for compensation then also add a claim that this is a constitutional violation.
The steps in the lawsuit
Submitting a petition
The Japanese judicial system has three tiers: the District Court, the High Court, and the Supreme Court. We will first start by submitting a petition to the District Court.
Providing documental evidence
In a trial, both parties will first submit documentation to support their claims. We will make a legal argument that same-sex couples are being subject to inequality and a violation of rights by providing evidence of the disadvantages faced by them.
The trial will be public, so please feel free to attend the hearing; we also plan on sharing the progress of the lawsuit after the hearing.
Questioning of the couples who filed the lawsuit and witnesses
The questioning of the lawsuit’s couples and witnesses is the most crucial point of the trial. The parties of the lawsuit (plaintiffs) and their witnesses will speak to the judge directly in this stage. The defendant may also be accompanied by their own witnesses. Having attendants during this questioning and hearing is great support. We can let the judges know that there are many people interested in the case.
Once the plaintiffs and defendants have made their cases, the court will make a ruling. Unless the Diet decides to revise or amend the law at some point during the trial, we will continue to fight the case all the way up to the Supreme Court.