[English Translation by Lawyers for LGBT and Allies Network (LLAN: llanjapan.org).
Original Japanese judgment available athttps://www.call4.jp/file/pdf/202211/4a8629d74409d0e9f4a874008c629f9d.pdf]
Judgment delivered on November 30, 2022, original received on the same day - Court clerk
Case No. (Wa) 3465 of 2019, Claim for Damages Against the State.
Date of conclusion of oral argument: May 30, 2022.
Judgment
The list of parties is contained in the appendix. The terms used in the judgment shall have themeanings ascribed to them in the appendix.
Main Text of Judgment
1.

The Plaintiffs' claims are dismissed.

2.

The costs of the litigation shall be borne by the Plaintiffs.
Facts and Reasons

I.

Plaintiffs' Claim
The Plaintiffs request that the Defendant pays each of the Plaintiffs 1,000,000 yen andinterest thereon at a rate of 5% per annum from March 4, 2019 until payment is madein full.

II.

Summary of Facts etc

1

Summary of Facts
In this case, the Plaintiffs, who wish to marry a person of the same sex, argue that therelevant provisions of the Civil Code and the Family Register Act, which limit
marriage to opposite-sex couples and do not permit marriage between persons of thesame sex, violate Paragraph 1 of Article 14, and Paragraphs 1 and 2 of Article 24 of
the Constitution, and that the failure of the Diet to take legislative measures to enablemarriage as provided by the Civil Code and the Family Registration Law between
persons of the same sex (despite having the obligation to do so) is unlawful under
Article 1.1 of the State Redress Act. The Plaintiffs each claim 1,000,000 yen incompensation for non-pecuniary loss and delay damages at a rate of 5% per annum asprovided for by the Civil Code before the amendment by Law No. 44 of 2017, for theperiod from February 28, 2019, which is the date of the service of the complaint, until
payment has been made in full.

2

Undisputed Facts
The facts which are not in dispute between the parties and the facts which are readily
recognizable from the evidence are listed below (references to evidence numbers
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which do not specify a particular sub-section includes all sub-sections - the same shallapply hereinafter) and the overall import of oral arguments are as follows.
(1)

Sexual orientation, sexual minorities
Sexual orientation refers to the attraction that a person feels towards another person ina sensual, emotional or sexual sense. Heterosexuality is where one has such feelingsof love and sexual attraction towards a person of the opposite sex. Homosexuality (gay,lesbian) is where one has such feelings towards a person of the same sex . Bisexuality
is where one has such feelings towards both sexes (hereinafter, people with aheterosexual orientation are referred to as "heterosexual individuals," people with ahomosexual orientation are referred to as "homosexual individuals," and homosexual
individuals and people with a bisexual orientation are collectively referred to as"homosexual individuals, etc."). In addition, people whose gender identity is notaligned with their biological sex are transgender people (hereinafter, homosexual
individuals, etc. and transgender people are collectively referred to as "sexual
minorities").

(2)

Plaintiffs[redacted in the Japanese original]

3

Relevant Provisions of Law
The Civil Code in Part 4, Chapter 2, "Marriage", sets forth various provisions
concerning marriage (Article 731 and onward), which provide the requirements for theestablishment of marriage and the validity, etc. of marriage. These provisions state thatmarriage shall become effective through a marriage notification made pursuant to theprovisions of the Family Register Act (Paragraph 1, Article 7-39), and the parties to amarriage shall be referred to as "husband and wife," with one party being the "husband"and the other being the "wife" (Articles 750, 767, etc.).
In addition, the Family Register Act requires that people who intend to marry must
include in the marriage notification matters such as the surname that the husband andwife will use and submit the notification accordingly (Article 74). Upon the receipt ofa marriage notification, a new family register shall be established for the husband andwife (main text of Paragraph 1, Article 16). The family register shall state for each
person in the family register whether the person is the husband or wife (Paragraph 6,
Article 13).
As such, while Part 4, Chapter 2 of the Civil Code and the relevant provisions of the
Family Register Act concerning the institution of marriage (hereafter collectively
referred to as the "Provisions") do not explicitly prohibit marriage between personsof the same sex, they provide that marriage is between a "husband" and a "wife" (i.e.,
between individuals of the opposite sex). In other words, marriage between individualsof the same sex is not permitted.

2ASIA\VTANG\246495557.01

4

Issues(1)

Constitutionality of the Provisions that do not permit marriage between individuals of
the same sex;

(2)

Whether the failure of the Diet to take legislative measures to enable marriage between
individuals of the same sex is assessed as illegal under Article 1, Paragraph 1 of theState Redress Act;

(3)

Whether there has been any loss, and if so, the amount; and(4)

Whether there is a mutual guarantee under Article 6 of the State Redress Act (inrelation to Plaintiff [redacted]).

5

The Parties' Submissions(1)

Constitutionality of the Provisions that do not permit marriage between
individuals of the same sex (Issue (1))(Plaintiffs’ Submissions)(i)

The Provisions are in violation of Article 24, Paragraph 1 of theConstitution(a)Living a communal life with a certain degree of permanence which is built
on an intimate relationship, and forming a family, brings fulfillment topeople's lives through the sharing of the joys and sadness of life. This
process plays an important role in enabling a person to live their own life
and achieve their own happiness. Marriage is a system in which the law
stipulates the requirements and effects of the formation of such a family,
approves and certifies it, recognizes it as a unit of the society, and grants
rights and obligations. However, marriage is not only for fulfilling one's
life, but also an opportunity to formally recognize the parties to a marriage
as a unit of society through the granting of various rights and obligations
and the accompanying social recognition under the legal system.
Marriage is thus deeply intertwined with a person's life and personality,
and indispensable to an individual's personal existence. Therefore, theright to determine whether or not to marry and whom to marry(hereinafter referred to as the "freedom of marriage") should be regarded
as an important part of the right to self-determination, pursuant to thefundamental principle of the Constitution that all persons are respected as
individuals (Article 13 of the Constitution).
Further, the legal intent of Article 24 of the Constitution, which is aprovision concerning marriage and family system, is to deny the modalityof the marriage system under the Civil Code before its amendment by
Law No. 222 of 1947, in which the freedom of marriage was restricted byholding the "family" to be superior over the individual, and to order that,
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in light of the fact that marriage is an important aspect of the right to selfdetermination, it is necessary under the new marriage system to ensurethat a marriage can only be made autonomously between partners bycomplying with the mutual intentions of the persons who wish to marry.
Thus, on the premise of the existence of the legal system, Article 24,
Paragraph 1 of the Constitution guarantees the freedom of marriage itself
as a right for a person to marry their desired partner autonomously only
when their intention to marry coincides with that of their partner.
(b)This freedom of marriage is premised on the existence of a legal systemthat provides for legal marriage. However, the system in which a society
approves of persons seeking to live together under certain conditions andconnects various interests and responsibilities to that situation, is a systemthat has been in place since before the existence of the State, and the legal
system concerning marriage merely influences the rules and order ofmarriage by law. Therefore, Article 24, Paragraph 1 of the Constitution
should not be construed as guaranteeing the freedom of marriage only
within the framework of the legal system concerning marriage, but asguaranteeing the freedom of marriage as a freedom directly derived fromthe dignity of individuals before the existence of the State. Therefore, if
the legal system concerning marriage restricts without justification a core
part of the marriage system which was assumed and postulated by theConstitution, then such law is unconstitutional.
Considering that Article 24, Paragraph 1 of the Constitution provides thatmarriage shall be effected by free and equal decision-making between theparties, provided that: (a) marriage shall be established only on the basisof the agreement of both sexes; (b) that Paragraph 2 of the same article
requires that the choice of a spouse be based on the dignity of anindividual and the essential equality of both sexes; and (c) that marriage
is deeply related to the personal autonomy of an individual and has themost important meaning in the pursuit of individual happiness, it should
be construed that the core part of the Constitution, which is assumed andpostulated in relation to the marriage system, is that marriage shall beestablished only on the basis of the agreement between the parties
concerned.

(c)Same-sex couples are able to live a communal life with the essence ofmarriage, in exactly the same manner as opposite-sex couples, and thePlaintiffs, exactly like opposite-sex couples, have built relationships
based on trust with their partners. For homosexual persons, etc., it isindispensable for their personal survival to receive legal protection bymarriage, which is nothing different than that required by heterosexual
persons. This is evident from the fact that the Plaintiffs cannot obtainrecognition as spouses from the people around them because they cannot
marry their partners, and that they have suffered specific disadvantages
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as a result. Furthermore, guaranteeing the freedom of marriage toheterosexual persons while removing such a freedom from homosexual
persons stigmatizes homosexual persons, etc. as inferior to heterosexual
persons and excludes them from being formal members of society. This
also leads to a weakening of the foundations of a democratic society.
Accordingly, the purpose of the Constitution guaranteeing the freedom ofmarriage is naturally appropriate to be extended to same-sex couples, andthere are no constitutional grounds to treat them differently. Therefore,
Article 24, Paragraph 1 of the Constitution should be construed toguarantee the freedom of marriage not only to heterosexual persons but
also to homosexual persons etc., and the freedom of marriage in the same
paragraph extends to marriage between individuals of the same sex.
(d)

On the other hand, Article 24, Paragraph 1 of the Constitution uses theterm "both sexes," and it can be seen that only marriage between the
opposite sexes was assumed in its enactment.
However, it is not the case that in the constitutional process, the restrictionof the parties to a marriage to a "man" and a "woman" was discussed, northat the wording "both sexes" was used for that purpose. The purpose of
Article 24 of the Constitution is to exclude the restriction on the familysystem under the old Constitution from the legal system of marriage andfamily, and to eliminate that system which required the approval of thehead of the household, etc. in order for a marriage to occur and instead toreplace that approval with the free will of equal parties. The phrase "bothsexes" in the said article was not used for the purpose of preventing
marriage between individuals of the same sex.
Furthermore, Article 24 of the Constitution used the term "both sexes"
because, when the Constitution was enacted, homosexuality wasrecognized as a mental disorder, and intimate relationships and thecommunity life of individuals of same sex were not recognized as an
object of legal protection. Subsequently, however, there has been
empirical evidence in the field of psychiatry that there is no reasonablebasis for considering homosexuality as a mental disorder, and it has long
been established that homosexuality is not a psychiatric disorder. As aresult, the recognition that restrictions on human rights based on sexual
orientation are not permissible has spread internationally, and in many
countries, the legalization of the marriage of same-sex couples has beenrealized, one country after another. In Japan, too, many local governments
are introducing of partnership certification systems, which are systems forrecognizing same-sex couples. In addition, about 60% of Japanesecitizens agree that Japan should introduce a marriage system applicableto same-sex couples. Thus, there is a growing awareness that same-sex
couples should be protected by the institution of marriage in the samemanner as heterosexual couples.
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As discussed above, in line with the principles of the Constitution and inlight of changes in society, the agreement between the parties that theConstitution provides for is a core part of the requirement and assumptionof the marriage system, and the interpretation of "Parties" in the case of
marriage being effected to include persons of the same sex should beconstrued as appropriate for today's interpretation. There are many cases
where rights not envisaged at the time of the enactment of the Constitution
were later recognized as constitutional rights in response to subsequentsocial changes, and it is not unreasonable to think the same of the rights
described above.
It is clear from this inquiry that the freedom of marriage is guaranteed asa constitutional right, and the ultimate ground is that it is indispensablefor the dignity of an individual, which is the basic value set out in theConstitution. The importance of the legal and factual value of marriage,
the choice whether or not to marry, and the fact that it is possible to decide
who to marry autonomously does not differ in any way between
heterosexual persons and homosexual persons, and an interpretation
guaranteeing the freedom of marriage between members of the opposite
sex, but not for marriage between members of the same sex is clearly
unreasonable.
Therefore, the term "both sexes" in Article 24, Paragraph 1 of theConstitution should be construed to mean "both parties." It should beconcluded that the said paragraph guarantees the freedom of marriage tohomosexual persons etc., as well as to heterosexual persons in equal terms.
(e)

The Defendant argues that since the purpose of the provision is legal
protection for reproduction and the rearing of children, the interpretationof the purpose of this legislative provision which entitles only
heterosexual couples to marriage is reasonable. However, reproduction
and the rearing of children are not the purposes of marriage, but only one
function and role of marriage, as evidenced by the fact that fertility andwillingness to procreate are not requirements for marriage under the Civil
Code. On the other hand, to live a communal life while giving birth to andraising a child is possible for same-sex couples as well as for opposite sex
couples. Accordingly, if legal protection for procreation and the rearingof children is raised as a purpose of marriage, then the need for protectionof same-sex couples is even greater.
There are no grounds for justifying the exclusion of homosexual persons
etc., from marriage. Rather, the legislative facts that served as the basisof the provisions, the idea that heterosexuality is itself the normal humancondition, whereas homosexuality is not normal (i.e., heteronormativity),
which was the legislative fact underlying the provisions in question, has
now been lost. Therefore, the various provisions in this case, which do
6ASIA\VTANG\246495557.01

not recognize marriage between persons of the same sex, violate
Article 24, Paragraph 1 of the Constitution.
(ii)

The Provisions are in violation of Article 24.2 of the Constitution(a)Article 24.2 of the Constitution is a provision which provides guidance
for the enactment of legislation concerning marriage and family, and at
the same time, it is a provision having the effect of nullifying legislationthat is against "the dignity of individuals and the essential equality of both
sexes."
Incidentally, decisions on whether or not to marry, when and with whom
to marry, and especially, decisions on the choice of spouse, i.e., withwhom to marry, are deeply related to an individual's personality, and are
one of the most important decisions among those that an individual makesin the pursuit of individual happiness. If marriage, especially the choiceof spouse, cannot be freely made, it cannot be said that an individual has
been respected as a dignified being. Therefore, the freedom of marriage,
especially the freedom of choice of spouse, should be regarded as one of
the most important aspects of "the dignity of the individuals and theessential equality of both sexes" as provided in Article 24, Paragraph 2 of
the Constitution, and it can be construed that the reason why the said
provision explicitly provides for "the choice of spouse" and Article 24,
Paragraph 1 specifically provides for freedom of marriage is to positively
embody the above mentioned aspects in law. In light of the importance ofthe freedom of marriage, especially the freedom of choice of spouse, incases where laws directly deny the freedom of marriage, especially the
freedom of choice of spouse, or restrict the freedom of decision making
by imposing conditions which deny the personality of an individual in theformation of marriage or selection of a spouse, it is necessary to closely
examine whether there are truly unavoidable reasons for such restrictions,and unless such reasons are found to exist, such laws should be construed
to be in violation of Article 24, Paragraph 2 of the Constitution.
The Defendant argues that Article 24, Paragraph 2 of the Constitution
gives broad discretion to the legislature. However, since that Article
directly restricts the legislature by providing that the laws on marriage
and family must be enacted from the standpoint of "the individual dignity
and the essential equality of both sexes”, the legislature may not without
justifiable reason enact laws which do not accord with the above
restriction and therefore has is restricted in exercising its legislative
discretion. The Defendant's argument is therefore not pertinent.

(b)

The Provisions prohibit marriage between individuals of the same sex,
and thereby make it impossible for homosexuals to marry the person theywish to marry. Therefore, the Provisions directly and severely restrict the
freedom of marriage of homosexual persons. Marriage is a legal act where
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family relationships are publicly certified by the family register, where aset of various rights and duties arises, and where social recognition
corresponding to such legal status is given. By virtue of marriage,
cohabitation will be protected as a legal family and socially recognized.
By not being able to marry, homosexuals incur significant handicaps suchas not being able to enjoy such rights and duties as spouses, and notreceiving social recognition as married couples.
In addition, sexual orientation is an important component of humansexuality. It is deeply rooted in the personal character, and it is difficult
to change by one's own will. Having said so, imposing on homosexuals amarriage system that presupposes that marriage is between opposite sex
individuals results in the exclusion of homosexual persons from importantsocial systems based on their sexual orientation and gender identity, and
it is their personalities which is denied.
Moreover, the existence of the Provisions in itself encourages social
discrimination and prejudice against homosexual persons and is sociallydivisive.
For the reasons stated above, the Provisions are extremely and seriously
damaging to the dignity of homosexual persons and cannot be construed
as being based on "the dignity of individuals and the essential equality ofboth sexes". There are no grounds for justifying them.
Therefore, the Provisions contravene Article 24, Paragraph 2 of theConstitution.
(c)

Furthermore, even setting aside whether the guarantee of freedom ofmarriage under Article 24, Paragraph 1 of the Constitution extends tomarriage between individuals of the same sex, the Provisions are against
Article 24, Paragraph 2.
That is to say, Article 24, Paragraph 2 of the Constitution requires thatlegislation on marriage and family be based on "the dignity of theindividual and the essential equality of both sexes" which not only meansthat such legislation should not unjustly infringe the personal rights which
are guaranteed by the Constitution and that the formal equality of both
sexes shall be maintained, but it also means that legislation should give
sufficient consideration in particular to the respect of personal rights thatare not directly guaranteed under the Constitution, to try to ensure that
substantial equality of both sexes is maintained and that marriage is notin effect unjustly restricted by the marriage system. Therefore, even if thelaw does not directly restrict the freedom of marriage, if it in effectrestricts the freedom of marriage, it is still against Article 24, Paragraph 2of the Constitution.

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Because there is no doubt that decisions on whether or not to marry andwhom to marry are indispensable interests to an individual's existence,such personal interests should be respected when applying Article 24,
Paragraph 2 of the Constitution. Furthermore, it is obvious that theProvisions violate the essential equality of same-sex couples andopposite-sex couples in that same-sex couples are excluded from themarriage system despite the fact that same-sex couples live together in amanner that does not differ from that of opposite-sex couples. The
Provisions therefore constitute an unreasonable restriction on marriage
for homosexual persons.
(d)

(iii)

In addition, and as mentioned above, the term "both sexes" in Article 24,
Paragraph 1 of the Constitution does not deny or exclude marriage otherthan that between the opposite sexes. Furthermore, even if said paragraphpresupposed marriage between opposite sexes at the time of enactment,
Article 24, Paragraph 2 provides that the "choice of spouse" must be basedon the "dignity of individuals" and does not limit marriage to one between
a man and a woman. Rather, Article 24, Paragraph 1 stipulates those items
which particularly important for the "dignity of individuals and essential
equality of both sexes" stipulated in Article 24, Paragraph 2, andArticle 24, Paragraph 2 cannot be construed as restricting Article 24,
Paragraph 1. The interpretation that the scope of protection of the"marriage and other matters concerning family" of Article 24,
Paragraph 2 does not extend to families other than opposite-sex couples
does not stand.

The Provisions are in violation of Article 14, Paragraph 1 of theConstitution(a)

Under the Provisions, while heterosexual persons can marry a partner ofthe opposite sex in accordance with their own sexual orientation,homosexual persons cannot marry a partner of the same sex in accordancewith their sexual orientation. This difference in treatment concerning thepermissibility of marriage itself depends on whether sexual orientation is
towards individuals of the opposite sex or same sex, namely sexual
orientation. "Sexual orientation" is not listed in the requirements ofmarriage under the Provisions, however, if marriage is only for oppositesex couples, naturally, it results in homosexual persons being excluded
from marriage. Denying said difference because sexual orientation is notdirectly a marriage requirement is not permissible.
In addition, under the Provisions, a heterosexual couple can marry whilea homosexual couple cannot. This means that the possibility of marriage
is different depending on one's own gender or the gender of the person
whom one wishes to marry.

9
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(b)The above difference directly and entirely restricts the marriage ofhomosexual persons, and they are not only unable to obtain the important
legal status of "spouse" under the Civil Code, but are also unable to enjoy
the wide variety of legal and de facto effects and benefits of marriage.
They are also unable to obtain the same social approval as married
opposite-sex couples. Therefore, their disadvantages are enormous, andthis is obvious from the fact that the Plaintiffs have suffered a wide rangeof legal and de facto disadvantages due to the current situation where they
are unable to get married. In addition, since such difference is based on areason beyond an individual's own control, such as sexual orientation orsex, this is a discrimination based on social status or sex which is listed
in the second sentence of Article 14, Paragraph 1 of the Constitution.
Since the number of individuals with a sexual orientation other thanheterosexuality is at most 10%, such difference cannot be expected to berelieved through the democratic process, which means that a close
examination of the justifications for such treatment is required.

(c)

As mentioned, it is clear that the difference in the permissibility ofmarriage between opposite-sex couples and same-sex couples cannot bejustified. Considering that the above difference is based on grounds outof one's own control, the right violated and the disadvantages are serious
and very significant as it is a legal and direct restriction on the freedomof marriage. Further there is no reason not to allow homosexual persons
to marry given that the purpose of the marriage system is to protect
intimate life led together, there is no theoretical basis for not granting tosame-sex couples the same legal effects in light of the purpose of theindividual legal effects associated with marriage, and the existence of theProvisions that exclude homosexual persons from marriage plays a rolein maintaining and reproducing social prejudice against homosexual
persons.

(d)

The Defendant argues that the purpose of the marriage system is to protect
reproduction. However, some opposite-sex couples do not intend or havethe ability to reproduce in the first place, and it is obvious that suchcouples are not generally regarded as incompatible with the marriage
system's original purpose. The purpose of the marriage system is toprotect intimate relationships (intimate lives led together), and it isappropriate that the protection of reproduction is positioned as one of theimportant functions or roles derived from it. Therefore, the above
argument made by the Defendant lacks a reasonable basis.

(Defendant's Submissions)(i)

The Provisions do not violate Article 24, Paragraph 1 of the Constitution(a)

In interpreting the Constitution, it is important to focus on the wording of
the articles. Article 24, Paragraph 1 of the Constitution refers to "both10

ASIA\VTANG\246495557.01

sexes" and "husband and wife" and Article 24, Paragraph 2 refers to "theessential equality of both sexes". From the general meaning of thesewords, the words used in the Constitution in the process of its enactment,
and the circumstances of discussions held during the constitutional
deliberations, etc., it is clear that "both sexes" in Article 24, Paragraph 1of the Constitution means a man and a woman, and that the Constitution
does not envisage marriage between same sex individuals.
(b)

In addition, behind marriage as the institutionalization of the human union
between opposite sexes is the social reality that the human union between
opposite sexes, one man and one woman, forming a family, a natural andfundamental group unit that constitutes and supports society while
producing and raising the next generation of children who will support
the future society. There is a social recognition that has historically been
formed based on this. In contrast, personal unions between same sex
individuals does not have the possibility of natural reproduction, and how
to place the human union between same sex individuals in relation to aform of marriage is still under discussion by Japanese society. Thus, it isdifficult to say that personal unions between same sex individuals issocially recognized in the same manner as that between opposite sex
individuals. Therefore, it is appropriate to interpret that Article 24,
Paragraph 1 of the Constitution still only protects marriage between
opposite sex individuals.

(c)

As marriage necessarily presupposes the existence of a certain legal
system, even if the right to self-determination on marriage (freedom ofmarriage), as the Plaintiffs submit, can be assumed, the right to selfdetermination is only guaranteed within the framework of the legal
system established in accordance with the requirements of theConstitution, and it is not guaranteed by the Constitution as an inherent
or natural right or benefit apart from the legal system. Article 24,
Paragraph 1 of the Constitution only covers unions between opposite sex
individuals and does not envisage unions between same sex individuals.
Therefore, the Plaintiffs' argument is nothing more than a request for theDiet to establish a legal system that allows the same positive protection
and the provision of legal bases in the case of union between same sex
individuals as in the case of union between opposite sex individuals andcannot be construed to be based on the right of self-determination. This
does not change even if the inclusion of unions between same sex
individuals in marriage contributes to the pursuit of the happiness of theparties who intend to do so.

(d)

In addition, the Plaintiffs argue that the recognition that homosexuality isa mental illness has been rejected. However, the marriage systemstipulated by the Civil Code is merely a legislative enactment of the
tradition and customs of Japan that marriage is a union between a man
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and a woman for the purpose of reproduction and child-rearing both
before and after the amendment of the Civil Code by Act No. 222 of 1947(" 1947 Civil Code Amendment"), and in that process there is no evidence
that the former recognition of homosexuality as a mental illness was
actively reflected in the legislation. Therefore, the rejection of theconception of homosexuality as a mental illness does not affect thereasonableness of the Provisions.
(e)

(ii)

Article 24., Paragraph 1 of the Constitution guarantees the freedom ofmarriage only between opposite sex individuals, and the Provisions do
not violate Article 24, Paragraph 1 of the Constitution since the Provisions
merely embody the purport of said Article.

The Provisions do not violate Article 24, Paragraph 2 of the Constitution(a)Article 24, Paragraph 2 of the Constitution refers to matters concerning
marriage and family, taking into account various factors in the social
situation, including the traditions of the nation and the sentiment of thepeople.
From the viewpoint that it should be determined bycomprehensively making judgments with an eye on the overallmanagement of the relationship between husbands and wives, parents andchildren, the establishment of a specific system shall be left primarily tothe reasonable legislative discretion of the Diet, and in the enactment ofsuch a system, the limitation of the discretion shall be defined byproviding a guideline that the Diet should be based on the dignity of
individuals and the intrinsic equality of both sexes.
As mentioned in (i) above, Article 24, Paragraph 1 of the Constitution
guarantees the freedom of marriage only through personal connections
between the opposite sexes. Paragraph 2 of said Article requests thelegislature to develop a system to embody the state of marriage under thispremise, and it cannot be construed as requesting the legislature to adopt
legislative measures to allow marriage even for personal relations
between the same sex.
The meaning of the "dignity of the individual" as referred to in the said
paragraph should be construed in accordance with the modality of the said
provision, but since the said provisions are nothing other than the resultof legislation in accordance with the request mentioned above, there is noroom to raise any problem of unconstitutionality.
Furthermore, the Diet has broad legislative discretion on whether or not
to enact legislation enabling marriage between the same sex beyond thescope of the requirement of Article 24, Paragraph 2 of the Constitution,
but it cannot be said that there is a deviation from the legislative discretion
granted to the Diet by not enacting legislation enabling marriage between
individuals of the same sex.
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(b)The Plaintiffs argue that the existence of the Provisions themselves
seriously impair the "individual dignity" of homosexual persons, etc. on
the grounds that the Provisions discriminate on the basis of gender
identity and sexual orientation, and that the Provisions foster stigma
toward homosexuals.
However, as the Provisions neither establish criteria for access to themarriage system that are framed in terms of the gender identity and sexual
orientation of the specific and individual parties to marriage, nor provide
for legal discriminatory treatment based on based on an individual’sLGBT identity, it cannot be concluded that the Provisions constitutediscrimination based on gender identity or sexual orientation.
Furthermore, as mentioned in (a) above, among a wide variety anddiversity of interpersonal relationships, in which personal unions between
individuals of the opposite sex have been institutionalized as marriage,
there is a social reality that the relationship between a man and a woman,
which is premised on the possibility of natural reproduction, forms afamily unit that is the natural and fundamental group that underpins ournation's society. While social acceptance of this situation has developed
historically over time, there is still no similar social acceptance withregard to personal unions between individuals of the same sex. Therefore,
there is a reasonable basis for restricting the legal system of marriage topersonal unions between individuals of the opposite sex. In addition,
considering that, notwithstanding the existence of the Provisions,individuals of the same sex are not prevented from entering into personal
unions which are similar to marriage, it is inappropriate to conclude that
the Provisions fostering stigma toward LGBT people.

(c)

(iii)

For the reasons stated above, the Provisions do not violate Article 24,
Paragraph 2 of the Constitution.

The Provisions do not violate Article 14, Paragraph 1 of the Constitution(a)

The Plaintiffs argue that since the Provisions prevent homosexual persons,etc. from marrying a person who matches their sexual orientation, theProvisions institute differential treatment based on whether or notmarriage is possible for a person in light of their sexual orientation.
However, whether or not a provision of law provides for differential
treatment based on a specific reason should be objectively judged fromthe purpose, content, and underlying premise of the provision; it is not
appropriate to make such a judgement from the actual or possible
consequences arising from the existence of the provision. The Provisions
merely stipulate the marriage between a man and a woman, but do not
require either person to have a particular sexual orientation as arequirement for marriage, nor do they prohibit marriage on the grounds
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that either person has a particular sexual orientation. Therefore, theProvisions do not determine the availability of marriage on the basis ofsexual orientation. Similarly, even though homosexual persons, etc. areunable to marry persons who match their sexual orientation, which createsa difference in the possibility of marriage between homosexual persons,etc. and heterosexual persons, that is nothing more than a de facto
consequence or indirect effect arising from the Provisions. The Provisions
uniformly allow all persons to use the marriage system, and do notthemselves give rise to formal inequality based on sexual orientation.
The Plaintiffs also argue that the Provisions provide for differential
treatment based on gender. However, as both men and women are able tomarry a person of the opposite sex under the Provisions, it cannot be said
that the Provisions stipulate a difference in treatment based on gender.
(b)

When examining whether or not the Provisions conform with Article 14,
Paragraph 1 of the Constitution, it is appropriate to review the premise of
the Diet’s extensive legislative discretion. This is because, as the marriage
system stipulated in the Provisions is a system established based on therequirement in Article 24, Paragraph 2 of the Constitution, the same
paragraph of the Constitution primarily entrusts the establishment of a
specific system to the reasonable legislative discretion of the Diet, on thebasis that matters concerning marriage and family should be determinedby a comprehensive judgment, taking into account various factors insociety, including national traditions and sentiments.
As such, it is essential to consider the Diet’s extensive legislative
discretion granted by Article 24, Paragraph 2 of the Constitution when
examining whether or not the Provisions conform with Article 14,
Paragraph 1 of the Constitution. In addition to this, the Constitution
guarantees the freedom of marriage only to personal unions between
individuals of the opposite sex, and does not guarantee the freedom ofmarriage to personal unions between individuals of the same sex. Given
that there is no legislation allowing marriage between individuals of thesame sex, and this does not prevent individuals of the same sex fromforming and maintaining and interpersonal relationship similar to
marriage or living together, an argument that the Provisions violate
Article 14, Paragraph 1 of the Constitution can only be made where there
are no reasonable grounds for the legislative purpose of the Provisions, orthe contents of the Provisions are not a reasonable means or method ofgiving effect to the legislative purpose, and the legislature clearly exceeds
or abuses its extensive discretion.

(c)

On top of that, even before the personal union between individuals of the
opposite sex was legislated as marriage, there had existed customs underwhich marriage was between a man and a woman. Therefore, given theprovisions of the Civil Code concerning the effect of marriage, in
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particular the presumption of legitimacy of children born to married
couples (Article 772, Paragraph 1 of the Civil Code) and the use of theparents’ surname by their child (Article 790 of the Civil Code), it isappropriate to construe that the purpose of the Provisions is to provide
legal protection in particular to a relationship between a man and a woman
who together raise a child and live a common life. Considering that, inJapan, the personal union between a man and a woman in which children
are born and raised has functioned as a fundamental group unit which
underpins our society, and social recognition of this has been fosteredthroughout history, it is obvious that the legislative purpose of theProvisions is reasonable.
Furthermore, there is no possibility of procreation in a same-sex personal
union, and it cannot be said that there is social recognition in Japan thatsame-sex personal unions can be equated with heterosexual marriage. On
the other hand, even if marriage between individuals of the same sex is
not permitted, such individuals are not prevented in any way fromestablishing, maintaining, or living together in a close personal
relationship similar to a same-sex marriage, and the practical
disadvantages of not being married are substantially eliminated throughthe use of contracts, wills, etc. Given this, the exclusion of same-sex
personal unions from the scope of marriage cannot be regarded as
irrational in relation to the legislative purposes of the Provisions.
It should be noted that, under the Provisions, even men and women who
have no intention or possibility (ability) to have children are permitted tomarry. However, since the legislative purposes of the Provisions assume
an abstract and typical pair of men and women as the target party, it is not
irrational as a standard to allow marriage, whether or not the couple isactually fertile. In addition, there is no change in the social recognition offamily relationships based on a union of husband and wife, even if there
are no children between them, and even if there is no intention or
possibility of having children. Therefore, it cannot be said that theProvisions, which allow marriage between men and women regardless of
their intention or possibility (ability) to have children, lack rationality inlight of the above legislative purposes.
(d)Considering the above, the Provisions do not violate Article 14,
Paragraph 1 of the Constitution.

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(2)Whether the failure of the Diet to take legislative measures to enable marriage
between individuals of the same sex is assessed as illegal under Article 1,
Paragraph 1 of the State Redress Act (Issue (2))(Plaintiffs' Submissions)(a)Where the Diet, for a long period of time without justifiable reason, fails
to enact any legislative measures such as revising or abolishinglegislative provisions that clearly restrict rights or interests guaranteed orprotected under the Constitution, the Diet members’ actions are regarded
as having violated their legal obligations and such legislative omission
may exceptionally be regarded as illegal under Article 1, Paragraph 1 of
the State Redress Act.
As described below, even though it became clear by 2008 at the latest that
the Provisions violate Article 14, Paragraph 1 and Article 24,
Paragraphs 1 and 2 of the Constitution, the Diet has failed to takelegislative measures that allow marriage between individuals of the samesex as stipulated in the Provisions (hereinafter referred to as "legislative
measures to enable marriage between individuals of the same sex") for along period of time without justifiable reason. Therefore, such a failure toact is illegal under the State Redress Act.

(b)

In the late 20th century, various fields including psychiatry and others
began to reject the long-held belief that homosexuality was a mental
disorder. In addition, in 1994, the United Nations Human Rights
Committee determined that "sex" under Articles 2(1) and 26 of theInternational Covenant on Civil and Political Rights (hereinafter referred
to as the "ICCPR") included "sexual orientation", and positioned
homosexuality as a human rights issue for the first time. Subsequently,
through the adoption in 2006 of the Yogyakarta Principles on the
Application of International Human Rights Laws on Sexual Orientation
and Gender Identity, the legal norms that prohibit restrictions on rights
and interests based on sexual orientation and gender identity, as well as
discrimination, became widespread internationally. By 2006, fivecountries had legalized same-sex marriage.
In Japan, the Act on the Promotion of Human Rights Education and
Human Rights Awareness-Raising was enacted in 2000, and therecognition that discrimination based on sexual orientation and gender
identity was a violation of human rights became gradually established. In
May 2008, Japan received a recommendation from the United Nations
Human Rights Council in the course of its regular review. Since then, it
has received several recommendations from convention bodies on theprotection of human rights related to sexual orientation and gender
identity, and has repeatedly stated to the international community that
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discrimination based on sexual orientation and gender identity is not
permitted.
In addition to the above, in light of various domestic and international
trends toward eliminating discrimination based on sexual orientation andgender identity, it can be said that it was naturally recognizable to the Dietat the latest in 2008 that restrictions on rights and interests based on sexual
orientation and gender identity, as well as discrimination, were notallowed in relation to marriage.
On the other hand, it is obvious from the time the Constitution wasestablished that marriage is an essential form of self-determination, whichis indispensable to respect for individuals. Naturally, this is also
recognizable to the Diet.
Based on the above, it should be said that it became obvious to the Dietby 2008 at the latest that the provisions that do not permit marriage
between individuals of the same sex are in violation of Article 14,
Paragraph 1 and Article 24, Paragraphs 1 and 2 of the Constitution.
(c)Since there are no legislative and technical difficulties in taking
legislative measures to enable marriage between individuals of the same
sex, Plaintiffs [redacted in the Japanese original] submit that by that timeat the latest, a sufficient period of time had elapsed to conclude that theDiet had failed to take such legislative measures for a long time without
justifiable reason. Furthermore, to date, the Diet has not taken any
legislative measures to enable marriage between individuals of the same
sex.
Therefore, as the Provisions are clearly in violation of Article 14,
Paragraph 1, and Article 24, Paragraphs 1 and 2 of the Constitution, thefailure of the Diet to take legislative measures to enable marriage between
individuals of the same sex is illegal for the purpose of applying Article 1,
Paragraph 1 of the State Redress Act.

(The Defendant's Submissions)
Legislative omissions shall be deemed to be illegal for the purpose of applying
Article 1, Paragraph 1 of the State Redress Act only in exceptional cases where, eventhough it is clear that the provision of law shall violate the Constitution because it
restricts the rights and interests guaranteed or protected by the Constitution without
reasonable grounds, the Diet fails to take legislative measures such as revision or
abolition for a long period of time without justifiable reason.
However, since it cannot be said that there is clearly a violation of Article 14,
Paragraph 1, or Article 24, Paragraph 1 or 2 of the Constitution, there is no clear
violation of the Constitution and therefore no room to consider that the Diet's failure
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to legalize same-sex marriage is illegal under Article 1, Paragraph 1 of the State
Redress Act.
(3)

Whether there has been any loss, and if so, the amount (Issue (3))(The Plaintiffs' Submissions)Due to the Defendant's legislative omission or inaction, the Plaintiffs' constitutionally
guaranteed freedom of marriage has been infringed. They were unable to receive thepsychological and social benefits that accompany the social approval granted tomarriage, or the legal and economic rights, interests, and de facto benefits associatedwith marriage. Furthermore, in being unable to marry their partners, the Plaintiffs havebeen subjected to stigma, as if their relationship with their respective partners was a"relationship that is not approved by society," and their dignity has been severely
tarnished.
The monetary valuation of the mental distress suffered by the Plaintiffs is at least one
million yen per Plaintiff.
(The Defendant's Submissions)
The Defendant denies and disputes the Plaintiffs' submissions.

(4)

Whether there is a mutual guarantee under Article 6 of the State Redress Act (inrelation to Plaintiff (redacted)) (Issue (4))(Plaintiff (redacted)'s Submissions)
Article 17 of the Constitution provides for the right to claim compensation from theState, and Articles 1(1) and 2(1) of the State Redress Act directly found a right to claim
compensation from the state. On their face, these provisions do not appear to limit the
party entitled to the claim, and Article 6 of said Act only provides that a "mutual
guarantee" is required where the party entitled to the claim is a foreign national. In
light of the structure of such provisions, it is appropriate to conclude that the absenceof a mutual guarantee would not bar the claim.
However, since the Defendant does not demonstrate or substantiate the absence of themutual guarantee, Plaintiff (redacted) is entitled to make the claim against the
Defendant on the grounds that they are unable to accept the absence of the mutual
guarantee.
Setting this point aside, in (redacted), which is Plaintiff (redacted)'s country ofnationality, the (redacted) Act and the Civil Code provide that the state or an
organization must provide compensation for any damage caused to a third party due toa public official's wilful misconduct or negligence. Further, in a notice of the
responsibility that the nation of (redacted) owes to Japanese citizens (dated (redacted)),it clearly states that where the victim is a Japanese citizen, there is a mutual guarantee
as to the liability for compensation incurred by (redacted) under Japan's legislation;
therefore, there exists a mutual guarantee between Japan and (redacted). Accordingly,
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Plaintiff (redacted) is entitled to make the claim, assuming that such mutual guarantee
exists.
(The Defendant's Submissions)
Having regard to its purpose, Article 6 of the State Redress Act is interpreted as
granting foreign nationals the right to claim compensation from the state, subject to thepresence of a "mutual guarantee". Therefore, the presence of the mutual guarantee
constitutes the basis of the claim for state compensation by a foreign national.
Accordingly, Plaintiff (redacted) should demonstrate and substantiate the presence ofthe mutual guarantee.
III.

The Court's Judgment

1

Findings of Fact by the Court
The Court accepts the following facts based on the undisputed facts referred to above,evidence referred to below and overall import of the oral arguments.

(1)

Sexual orientation, knowledge of sexual minorities, etc.
(i)

Knowledge of determination of sexual orientation
Though the causes of determination of sexual orientation and homosexuality are
not always well understood, mental health professionals consider that in mostcases, sexual orientation is determined at an early stage of our lives or before
birth, and is not something we choose. There are no research findings available
to demonstrate that a homosexual orientation is attributable to any family
circumstances, sexual experiences, or any particular environment in which one
is brought up (Plaintiffs' Evidence A2, 7 and 345 through 347).
Further, psychiatric professionals consider that no psychiatric therapy would
alter a person's sexual orientation (Plaintiffs' Evidence A2).

(ii)

Changes in knowledge of homosexuality(a)

In Western countries, since the Middle Ages there have been those who
denounced homosexuality due to the influence of Christianity. Even in
the 19th century, sexual activities between individuals of the same sex
were subject to punishment, and homosexuality was regarded as a
psychiatric disorder requiring treatment.
In the Meiji era, in Japan, too, there was a widespread belief thathomosexuality was a perverted sexual desire which ought to be treated,
and there was a period of time when sexual activities between men werecriminalized (Plaintiffs' Evidence A24, 26, 48, 335 and 337 for theforegoing).

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(b)After World War II, the European Convention on Human Rights cameinto force, and whether or not the sodomy laws in Germany and Austria
conformed to said Convention became a matter of dispute. Further, inToonen v. Australia, whether or not sodomy laws in Tasmania, Australia
conformed to the ICCPR also became a matter of dispute. The United
Nations Human Rights Committee read "sex" and "other status" in
Articles 2(1) and 26 of the ICCPR as including the concept of sexual
orientation for the purposes of non-discrimination, and took the view that
repeal of those sodomy laws was exactly the effective remedy. Thereafter,in Western countries, laws that punished sexual activities between
individuals of the same sex were gradually abolished (Plaintiffs' Evidence
A24 and 31).

(c)

In its DSM (Diagnostic and Statistical Manual of Mental Disorders)-I
published in 1952, the American Psychiatric Association recognizedhomosexuality as a type of sexual deviation, and classified the same into
the large category of sociopathic personality disturbances. Thereafter, in
DSM-II (1968), the association established homosexuality as anindependent diagnosis, and classified the same into the small category of"sexual deviation" in the large category of "personality disturbance andother nonpsychotic mental disorders" (Plaintiffs' Evidence A48 and 335).
However, in 1973, the American Psychiatric Association decided toremove homosexuality from the DSM, and announced that it would
eliminate discrimination against homosexual persons and guarantee theirrights. In DSM-III published in 1980, homosexuality was excluded frommental disorders and replaced by a more restrictive "ego-dystonic
homosexuality" (roughly meaning cases where patients, who arehomosexual but do not wish to feel arousal towards individuals of thesame sex, complain of distress and desire to change). The association later
also excluded this "ego-dystonic homosexuality" from its DSM-III-R
published in 1987 (Plaintiffs' Evidence A7, 24, 27, 28, 48 and 335).
The World Health Organization (WHO) defined homosexuality as adisease up until the publication of its ICD (International Classification of
Diseases)-9, but stated in ICD-10 (1992) that homosexuality alone was
not considered a disorder (Plaintiffs' Evidence A29 and 30).
In Japan, too, it was previously thought that homosexuality should betreated, but in 1995, in response to requests from a public interest group,
the Japanese Society of Psychiatry and Neurology expressed its view that"sexual orientation towards a person of the same sex is not considered amental disorder in accordance with ICD-10" (Plaintiffs' Evidence A48,
335 and 342).

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(d)

(iii)

(2)

Currently, the general view of psychiatric and psychologicalprofessionals is that homosexuality itself is not an illness (Plaintiffs'
Evidence A48, 335 and 343).

Survey of the situation of sexual minorities(a)

According to an epidemiological survey conducted in the United Statesin 2009, the percentage of men and women who considered themselves
to be homosexual was 6.8% and 4.5%, respectively. Other surveys
conducted in the United States, Canada and elsewhere revealed that thepercentage of adults who identify as "lesbian" or "gay" was 0.7~2.5%(Plaintiffs' Evidence A8 and 335).

(b)

According to a survey conducted by Nagoya City in 2018, 1.6% of people
responded that they belonged to a sexual minority (Plaintiffs' Evidence
A9).

(c)

According to NHK's survey of sexual minorities in 2015, 82.4% of the
respondents answered "I want to apply for partner certification systems
offered by local governments" (including those who answered that theywanted to apply when they have partners), 65.4% answered "I want a law
to recognize same-sex marriage", 25.3% answered "I want the
government to establish a registration system for partner relationships
rather than marriage", and 2.9% answered "I am happy with the statusquo" (Plaintiffs' Evidence A103).

(d)

According to a survey of more than 10,000 sexual minorities conducted
in 2019 by Lifenet Insurance Company and Professor Yasuharu Hidaka
of Takarazuka University, 60.4% of the respondents to the question"What do you think about a system that offers public recognition of samesex relationships such as same-sex marriage and partnership?" answered"I want the legality of marriage between individuals of the opposite sex
to be applied to same-sex marriage", 16.2% responded "I want greater
understanding in society but do not feel any necessity for an official
system", and most of the others answered either "I want a national
partnership system to be established" or "I want a local government-level
partnership system to be established" (Plaintiffs' Evidence A320 and 321).

Marriage system(i)

Modern marriage systems
Historically, the marriage system (legal marriage system) was born from theattempt to set norms for sexual relationships between men and women, so as toleave descendants and preserve the species. Although the types of unions
recognized as marriages vary according to the society and time period, marriage
exists as a social institution and a personal union recognized by society, notmerely a union based on the parties' sexuality. In most societies, therefore, there
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are certain requirements for a valid marriage. Traditionally, marriage has been
seen not as a mere sexual relationship between men and women, but ascommunal living between men and women, forming a key part of family life
through custody and care of children and the maintenance of cohabitation
through shared roles and the like.
In the Middle Ages in Europe, religious marriage was conducted under thecontrol of churches, but with the transition to modern civil society after the
French Revolution, modern marriage systems were gradually establishedwhereby states gave approval to marriage based on the consent of both sexes
under certain conditions. The modern marriage system was regarded as adeparture from the control of the patriarchal family community in premodern
society, and as marriage came to be viewed as a relationship of rights andobligations between equal and independent persons (Plaintiffs' Evidence A22125 and 27 through 29, and Defendant's Evidence 22 for the foregoing).
(ii)

Civil Code in the Meiji era(a)In the first year of Meiji era in Japan, the substantive requirements ofmarriage were left to custom, and there was no unified substantive law.
The substantive requirements were first established in Act No. 98 of 1890
(the former Civil Code), but ultimately never took effect. Instead, they
were passed on to the Civil Code (Act No. 9 of 1898) (which, until its
amendment in 1947, we refer to as the "Meiji Civil Code") (Plaintiffs'
Evidence A211-25 and 28).

(b)

In the Meiji Civil Code, marriage was a legal marriage by notification to
the state. It was based on the conventional household system (ie seido)
with the head of the household (koshu) having the power to control thehousehold (koshu-ken). Marriage was for the benefit of the household,and therefore required the consent of the head of household or anindividual's parents. Further, as the husband and wife had to share thehousehold, one of them (normally the wife) was required to become amember of the family of the other (normally the husband) after marriage.
The concubine system was abolished, but the husband had dominanceover his wife, and was deemed to have the right to manage her property
and to earn income from it.
Though some foreign laws at that time explicitly prohibited same-sex
marriage, the Meiji Civil Code had no explicit provision prohibiting thesame, on the ground that it was obvious that individuals of the same sex
could not marry as marriage was a relationship between a man and awoman. In scholarly thought, it was considered that one party to amarriage must be a man, and the other a woman, so no marriage could
arise between individuals of the same sex even if they were to make acommitment to live together for life (Plaintiffs' Evidence A211-18, 26, 28
and 38 for the foregoing).
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Moreover, marriage was not necessarily for the purpose of procreation
under the Meiji Civil Code. In scholarly thought, marriage was for thejoint life of husband and wife, and was not necessarily for the purpose of
having heirs, and while it was generally understood that marital partners
should be able to reproduce, reproductive incapacity was no barrier tomarriage, nor grounds for divorce, annulment or invalidation (Plaintiffs'
Evidence A210, 211-18, 33 through 35, 38 and 41).
(iii)

Enactment of the Constitution (Constitution of Japan)(a)Under the direction of the General Headquarters of the Allied Forces("GHQ"), the Constitutional Problems Investigation Committee
proceeded with amendments to the Constitution of the Empire of Japan.
Beate Sirota Gordon of the Government Section of GHQ was in chargeof drafting the human rights provisions. As Sirota was aware of issues
such as the low status of women during her stay in Japan, Article 18 ofher draft, which corresponds to Article 24 of the current Constitution,
provided: "… marriage and family stand on the undisputed legal andsocial equality of both sexes, it is based on mutual agreement instead ofenforcement by parents, and it is maintained by mutual cooperation
instead of dominance by the man … with regard to the choice of spouse,property rights, inheritance, choice of domicile, divorce and other matterspertaining to marriage and the family, laws shall be enacted based on
respect for the individual and the inherent equality of the sexes."
Article 23 of the GHQ's draft was prepared in February 1946 based on
Sirota's draft. This draft went through multiple iterations before passing
deliberation in the Imperial Diet and becoming Article 24 of the current
Constitution. These iterations include: Article 37 of the "draft as of March
2" prepared by the Government of Japan based on the above GHQ's draft;
Article 22 of the "draft as of March 5" prepared through negotiations with
GHQ; Article 22 of the draft amendment to the Constitution of the Empireof Japan for conversion into colloquial Japanese; and Article 22 of thedraft amendment to the Constitution of the Empire of Japan submitted to
the Imperial Diet on June 20 of the same year. Article 23 of the GHQ's
draft stated that "marriage stands on the undisputed legal and social
equality of both sexes," and Article 37 of the "draft as of March 2" andArticle 22 of the "draft as of May 5" stated that "marriage shall come into
effect only based on the mutual consent between a man and a woman".
However, "mutual consent between a man and a woman" was eventuallyreplaced with "mutual consent of both sexes." In addition, as theGovernment of Japan was reluctant to incorporate provisions on family
relationships in the Constitution, Article 37 of the "draft as of March 2"
was revised to correspond only to Article 24(1) of the current Constitution;
however, a provision corresponding to Article 24(2) of the current
Constitution was added to Article 22 of the "draft as of March 5".
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Through these processes, family-related provisions, which did not exist
in the Constitution of the Empire of Japan, were incorporated into theConstitution. (Plaintiffs' Evidence A156 through 161, and 211-22, 23, 29,
241 and 427 for the foregoing)(b)

At its 90th session, the Imperial Diet deliberated on a bill to amend theConstitution. The main issue was whether the existing household systemshould be maintained, but it became clear that it had to be rejected, inparticular through deliberation in the House of Peers. Regarding themeaning of "only" in the provision that "marriage shall be based only on
the mutual consent of both sexes" in Article 24, Paragraph 1 of the current
Constitution, the then-Minister of Justice stated that the purpose of this
"only" was to eliminate the restriction that marriage required the consent
of the head of the household (koshu) or any person with parental authority,and to enact marriage solely by mutual consent of both sexes.
No evidence was found that there was any discussion of marriage between
individuals of the same sex in this deliberation; rather, discussions were
held on the premise that marriage is between a man and a woman, that"marriage is absolutely founded in a place where a man and a woman
form a union and help each other". (Plaintiffs' Evidence A156, 157, 159161, 241, Defendant's Evidence 18)

(c)

(iv)

Under Article 24 of the Constitution, the "Act Concerning Emergency
Measures of the Civil Code upon Enforcement of the Constitution ofJapan" (Law No. 74 of 1947) was enacted and application of theprovisions concerning the household system under the Meiji Civil Codeceased. Thereafter, Parts IV and V of the Civil Code were wholly
amended (the amendment of the Civil Code in 1947 – the Civil Code after
the amendment is sometimes referred to as the "Current Civil Code")and enacted on January 1, 1948. (Plaintiffs' Evidence A19, 211-28, 546)

Amendment of the Civil Code in 1947(a)With the amendment of the Civil Code in 1947, (i) the right of parents toconsent to their children's marriage was limited to when those children
are minors, (ii) the right of the head of the household to consent tomarriage by their of-age children was abolished, and (iii) the prohibitionof marriage for the head of the household or any person presumed underapplicable law to succeed the household to enter into another family wasabolished as well. Thus, the restrictions imposed by the household systemwere removed. Additionally, the inequality between husband and wife
was resolved, such as by enabling mutual management of their property.
(Plaintiffs' Evidence A16, 19, 211-21/28)
In the Diet deliberations, it was explained that the reason to propose theamendment of the Civil Code was to amend the Meiji Civil Code since
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Part IV (Relatives) and Part V (Inheritance) in particular contained
provisions that conflicted with the basic principles set forth in Articles 13,
14 and 24 of the Constitution. Therefore, the conflicting provisions weredeleted while maintaining the remaining provisions. There is no evidence
that there was any debate on marriage between individuals of the samesex. (Plaintiffs' Evidence A16, 211-21).
(b)

(3)

After the amendment of the Civil Code in 1947, with regard to marriage
as provided by the Current Civil Code, academics expressed their views
that the purpose of marriage is to form a relationship that is regarded as
being in accordance with socially accepted ideas of the time, and thus that"marriage" between individuals of the same sex is not marriage.
(Plaintiffs' Evidence A211-27 and 28)

Legislation concerning personal unions between individuals of the same sex inother countries(i)

Institutions other than marriage systems concerning personal unions
between individuals of the same sex(a)

In 1989, the registered partnership system was introduced in Denmark asa system that legally records the relationship between two persons of thesame sex and confers a certain position and legal effects. Similar systems(with different names and specific system details, hereinafter collectively
referred to as "Registered Partnership Systems" and together with thesystems referred to in the following paragraph (b), "RegisteredPartnerships and Other Systems") were introduced mainly in Europe,
including Norway (1993), the Netherlands (1998), Germany and Finland(2001), Luxembourg and New Zealand (2004), the United Kingdom(2004-2005), Austria (2009), and Ireland (2011). The RegisteredPartnership Systems in many of these countries cover not only personal
unions between individuals of the same sex, but also those of the opposite
sex (e.g., the Netherlands, Portugal). (Plaintiffs' Evidence A98, 169, 205,
211-7/29, G8)(b)

For couples who do not wish to be subject to such strong legal effects as
those arising under Registered Partnership Systems, Belgium and Sweden
have systems called legal cohabitation, which primarily gives legal effectrelated to property laws to certain cohabitation relationships, while France
has a civil solidarity pact system (PACS), under which rights andobligations are established under the contracts of the parties andregistered with public bodies to enable them to be treated as couples by
third parties or the country itself. Both heterosexual and same-sex couples
can use these systems. (Plaintiffs' Evidence A98, 169, 205, 211-7/29)(c)

In Italy, the Constitutional Court decided in 2010 that marriage isrestricted to unions of individuals of different sexes. In 2014, the Court
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affirmed its decision, but further decided that having no other form of
personal union under Italian law that appropriately determines the rights
and obligations of same-sex couples is a violation of the Constitution. In
response, the "Regulations of Civil Unions between Persons of the SameSex and Discipline of Cohabitation" were enacted in 2016. The civil
union described therein is formed when both parties of the same sex
mutually declare their union in the presence of witnesses and an
identification administration officer.
As to the rights and obligations arising from these civil unions, theprovisions concerning marriage shall be applied mutatis mutandis, except
for those concerning the adoption of children. (Plaintiffs' Evidence A98)
(ii)

Marriage systems between individuals of the same sex(a)

In 2001, the Netherlands introduced its system for marriage between
individuals of the same sex, becoming the first country in the world tolegally recognize such marriages. Marriage systems permitting marriage
between individuals of the same sex have since continued to be
introduced worldwide: Belgium (2003); Spain and Canada (2005); South
Africa (2006); Norway and Sweden (2009); Portugal, Iceland andArgentina (2010); Denmark (2012); Brazil, France, Uruguay and New
Zealand (2013); the United Kingdom (excluding Northern Ireland) (2014);
Luxembourg and Ireland (2015); Colombia (2016); Finland, Malta,
Germany and Australia (2017); Austria, Taiwan and Ecuador (2019);
Costa Rica and the United Kingdom (Northern Ireland) (2020); and Chileand Switzerland (2022) (all the year of enactment).
In many of these countries and regions, the systems for marriage between
individuals of the same sex were introduced after the introduction ofRegistered Partnerships and Other Systems. It has been indicated that the
introduction of Registered Partnerships and Other Systems advanced thesocial recognition of, and thereby made it possible to introduce, systems
for marriage between individuals of the same sex. Some countries
abolished their pre-existing Registered Partnerships and Other Systems
when introducing their same-sex marriage systems, while other countries
have maintained theirs. In some of the latter cases, the details of theRegistered Partnerships and Other Systems have been revised repeatedly
to include not only proprietary integration but also personal obligations,making them similar to conventional marriage systems.
(For the foregoing, Plaintiffs' Evidence A98, 145-148, 169, 205, 210, 2117·29, 319, 417, 533, 534, AG8)(b)

In addition, judicial decisions have been made on the constitutionality oflaws that permit marriage between individuals of the same sex, and on theunconstitutionality of laws that do not permit it, as follows:
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(4)

a.

On November 6, 2012, the Constitutional Court of Spain held thatthe provisions of the Civil Code providing for marriage between
individuals of the same sex do not violate the Spanish Constitution.
(Plaintiffs' Evidence A169)b.

On June 26, 2015, the U.S. Supreme Court held in the Obergefellcase that the provisions of the state laws of Ohio, Michigan,
Kentucky and Tennessee, which did not permit marriage between
individuals of the same sex, while limiting the requirements formarriage of opposite-sex couples, violate the due process and equal
protection provisions of the U.S. Constitution. (Plaintiffs' Evidence
A98, 99, 164)c.

On May 24, 2017, the Judicial Yuan of Taiwan (the equivalent to a
constitutional court) ruled that the provisions of the Civil Code that
did not allow marriage between individuals of the same sex violated
the Taiwanese Constitution. (Plaintiffs' Evidence A98, 101)d.

On December 4, 2017, the Constitutional Court of Austria held that,with regard to the Registered Partnership System that had been
introduced and amended as mentioned in section (3)(i)(a) above,even if the legal structure is the same as that of the conventional
marriage system, distinguishing between opposite-sex and samesex relationships by using two legal systems violates the principleof equality that prohibits discrimination on the grounds ofindividual attributes such as sexual orientation. (Plaintiffs' Evidence
A98)

(c)

Even in countries where marriage between individuals of the same sex isallowed, there are cases where such marriages are viewed as being
different to those between opposite-sex couples (or where suchdifferences existed upon introduction). The main reasons for suchdifferences are whether or not (i) the presumption of legitimacy is applied,(ii) the adoption of children is allowed, and (iii) the use of assisted
reproductive technology is available. (Plaintiffs' Evidence A169, 211-29)(d)

In 2016, a district court in the Republic of Korea held that marriage
between individuals of the same sex should be resolved by legislativedecision, and that it was not an issue that could be resolved by the
judiciary. (Plaintiffs' Evidence A98)

The situation concerning sexual minorities in Japan(i)

State of local government efforts(a)

In October 2015, Shibuya Ward, Tokyo, and in November of the same
year, Setagaya Ward, Tokyo, respectively introduced partnershipcertification systems at the local government level, paving the way for
27

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more local governments to introduce similar systems that are alreadybeing used by many same-sex couples. In addition, some local
governments have concluded agreements to allow the mutual recognitionof partnership certification systems among themselves, and there are yetothers that now allow the inclusion of children of same-sex partners intheir family certification. According to a survey conducted in Shibuya
Ward and other local governments, 209 local governments haveintroduced partnership certification systems as of April 1, 2022, coveringroughly 52.1% of the Japanese population. (Plaintiffs' Evidence A75-91,
119-134, 266-302, 352-391, 445-519)
The Shibuya Ward system is based on the "Shibuya City Ordinance toPromote a Society in which Members Respect Gender Equality andDiversity," with the Ward mayor certifying the partnerships. A 2017
survey conducted by the Ward of those who had obtained partnershipcertification found that they viewed the certificate as representing
acceptance and recognition by society (Plaintiffs' Evidence A75, 434).
(b)

(ii)

In addition to the above, local governments are making efforts such as
including partners of the same sex that have registered their partnershipas recipients of benefits granted to bereaved families of crime victims andto allow employees who have a partner of the same sex to use marriage
leave and parental leave (Plaintiffs' Evidence A307-309, 392, 393).

Current State of Efforts by Corporations
On May 16, 2017, the Japan Business Federation presented a proposal entitled"Toward the Realization of a Diverse and Inclusive Society" calling for thepromotion of the understanding of and the elimination of discrimination against
sexual minorities (Plaintiffs' Evidence A94).
In order to eliminate the difficulties that sexual minorities are facing, a large
number of corporations are expanding the scope of their welfare packages toinclude same-sex couples and their children, such as the application ofcongratulatory and bereavement leave or family allowances to partners of thesame sex and the introduction of a system by which children of partners of thesame sex are treated as "children" in the corporations' internal systems(Plaintiffs' Evidence A314, 315, 318, 399).
In addition, some financial institutions are making efforts such as expanding thescope of housing loans to permit partners of the same sex to be joint borrowers,
when previously this had been limited to opposite sex couples (Plaintiffs'
Evidence A312, 313).

28
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(iii)Act on Special Cases in Handling Gender Status for Persons with Gender
Identity Disorder
The Act on Special Cases in Handling Gender Status for Persons with Gender
Identity Disorder (Act No. 111 of 2003) entered into force on July 16, 2004.
Article 3, Paragraph 1 of that Act provides that only a person with gender
identity disorder who "is not currently married" (Item 2) may be subject to aruling to change the recognition of their gender status. The Supreme Court has
ruled that this provision does not exceed the scope of the discretionary powers
granted to the Diet and is not in violation of Article 13, Article 14, Paragraph 1
or Article 24 of the Constitution, stating that the provision is based on theconsideration that if a person who is currently married were allowed to change
the recognition of their gender status, it could bring confusion to the current
order of marriage which is only allowed between individuals of opposite sex,
and thus the provision cannot be concluded to be unreasonable (Case no. 2019
(KU) 791, Supreme Court Second Petty Bench decision of March 11, 2020).

(5)

Public Surveys on Same-sex Marriage and Legal Guarantees for Same-sex
Couples(i)

According to a 2014 survey conducted by the Japan Association for Public
Opinion Research, 42.3% of respondents (35.4% of men and 48.7% of women)
agreed (including "somewhat agree") and 52.4% opposed (including "somewhat
oppose") the legal recognition of same-sex marriages (Plaintiffs' EvidenceA104).

(ii)

According to a 2015 nationwide survey of people aged 20 to 79 conducted by agroup led by Professor Kazuya Kawaguchi of Hiroshima Shudo University,
51.2% of respondents (44.8% of men and 56.7% of women) supported(including "somewhat support") the legal recognition of same-sex marriage,
while 41.3% (50.0% of men and 33.8% of women) opposed (including"somewhat oppose") it (Plaintiffs' Evidence A104).

(iii)

According to a 2015 public opinion poll (of 1,018 respondents) conducted by
the Mainichi Newspapers Co., Ltd., 44% of respondents (38% of men and 50%
of women) supported same-sex marriage, and 39% (49% of men and 30% of
women) opposed it (Plaintiffs' Evidence A104, 105).

(iv)

According to a 2017 public opinion poll of citizens aged 18 or older (2643 valid
responses) conducted by NHK, 50.9% of respondents answered "yes" whereas
40.7% answered "no" to the question of whether marriage between two men or
two women should be recognized (Plaintiffs' Evidence A106, 107).

(v)

According to a 2017 public opinion poll conducted by the Asahi Shimbun
Company, 49% of respondents (44% of men and 54% of women) responded"yes" and 39% responded "no" to the question of whether same-sex marriage
should be legally recognized. More than 70% of respondents from 18 to 29 andin their 30s responded "yes"; however, the percentage of responses of "yes" and29

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"no" were almost equal in respondents aged in their 60s, and 63% of respondents
aged in their 70s responded "no" (Plaintiffs' Evidence A108, 109).
(vi)

According to a 2018 survey of 60,000 people aged 20 to 79 conducted by Dentsu
Inc., the percentage of those who identify as a sexual minority was 8.9%. Out of
the 6,229 respondents extracted from that 60,000, 78.4% of respondents
responded "agree" or "somewhat agree" and 87.9% of women and 69.2% of menof the 5,640 respondents who did not identify as a sexual minority responded"agree" or "somewhat agree" with the legalization of same-sex marriage(Plaintiffs' Evidence A 110, 57 of 211).

(vii) According to the Sixth National Survey on the Family conducted by the National
Institute of Population and Social Security Research in 2018, of the 6,142
married female respondents, (a) 69.5% completely or somewhat agreed thatmarriage between men or women (same-sex marriage) should be legally
recognized, while 30.5% completely or somewhat disagreed, (b) 75.1%
completely or somewhat agreed that some kind of legal guarantee should be
granted to male or female couples as well, while 25.0% completely or somewhat
disagreed, and (c) 69.4% completely or somewhat agreed that same-sex couples
have the ability to raise children as well as opposite-sex couples, while 30.6%
completely or somewhat disagreed (Plaintiffs' Evidence A149, 165, 166, 226).
(viii) According to a survey of 2,053 voters nationwide conducted from March to
April 2020 by Asahi Shimbun Company and Masaki Taniguchi of University ofTokyo, 46% of respondents responded that they "support" or "somewhat
support" same-sex marriage, while 31% responded "I don't know," and 23%"oppose" or "somewhat oppose" it. Compared with a 2005 survey of voters,
positive opinions on same-sex marriage increased by 14%. The percentage of
positive opinions increased even among supporters of the Liberal Democratic
Party to exceed the percentage of negative opinions (Plaintiffs' Evidence A 224).
(6)

Surveys on Marriage(i)

According to the Cabinet Office's 2005 White Paper on the National Lifestyle,with respect to a survey question on the pros/benefits of marriage, 63.5% of
married individuals and 58.2% of single individuals responded "having a family
and children," 61.9% of married individuals and 54.3% of single individuals
responded "gaining psychological stability" and 58.0% of married individuals
and 57.7% of single individuals responded "being with the person you like."With respect to a survey question on the meaning of "home", 63.8% of married
individuals and 54.9% of single individuals responded "a gathering place forfamily," 57.3% of married individuals and 55.4% of single individuals
responded "a place to rest and relax," 50.6% of married individuals and 37.6%
of single individuals responded "a place to strengthen family bonds" and 27.0%
of married individuals and 19.5% of single individuals responded "a place togive birth to and raise children" (Plaintiffs' Evidence A211-54).
30

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(ii)

(a)

According to the Cabinet Office's Survey on Marriage and Family
Formation conducted between 2010 and 2011, among married individuals,
61.0% got married "to be with the person they like," 44.2% got married"to have a family" and 32.5% got married "to have children."Among single individuals (who wish to marry in the future), 61.0% wantto get married "to be with the person they like," 59.2% want to get married"to have a family" and 57.1% want to get married "to have children"(Plaintiffs' Evidence A211-55-1).

(b)

(iii)

(iv)

According to the Cabinet Office's Survey on Marriage and Family
Formation conducted between 2014 and 2015, among single individuals(who wish to marry in the future), 70.0% want to get married "to have afamily" and "to have children" and 68.9% want to get married "to be withthe person they like" (Plaintiffs' Evidence A211-55-2).

The results of the 15th National Fertility Survey conducted in 2015 by the
National Institute of Population and Social Security Research based on
respondents between 18 and 34 who had never been married were as follows(Plaintiffs' Evidence A211-52, 544).
(a)64.7% of men and 58.2% of women agreed that "it is not desirable toremain single for one's entire life."(b)85.7% of men and 89.3% of women responded that they "intend to marrysomeday," showing a slight downward trend while remaining at a highlevel.

(c)

64.3% of men and 77.8% of women responded that "marriage has somemerits." Specifically, "having one's own children and family" was themost common reason among 35.8% of men and 49.8% of women, and"psychological relief" was the second most common reason among 31.1%
of men and 28.1% of women.

(d)On the reason for having children, 66.5% of men and 73.3% of women
responded that "life will be fun and rich with children" and 48.4% of men
and 39.0% of women responded that "it is natural to marry and havechildren."

According to a national survey conducted by NHK in 2018 among 5,400 persons
aged 16 or older (50.9% response rate), 68% responded that they "do notnecessarily have to marry," an increase compared to the results of previous
surveys. Conversely, 27% responded that "it is natural for people to marry," adecrease compared to the results of previous surveys. In addition, 60% of
respondents answered that they "do not necessarily need to have children even
if they get married," an increase compared to the results of previous surveys.
33% responded that they "naturally should have children if they get married," a31

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decrease compared to the results of previous surveys (Plaintiffs' Evidence A21150).
(v)

According to the Sixth National Survey on Family conducted by the National
Institute of Population and Social Security Research in 2018, with respect to asurvey item on the statement that "married couples are socially accepted only
after they have children," of 6,142 married women 24.7% responded that they"completely agree" or "somewhat agree" and 75.4% responded that they"completely disagree" or "somewhat disagree." Positive responses showed adecline as compared to 35.8% and 32.1% in the National Institute's surveys
conducted in 2008 and 2013, respectively (Plaintiffs' Evidence A211-51).

2

Issue (1) (Constitutionality of the Provisions which Disallow Same-Sex Marriage)(1)

Compliance with Article 24, Paragraph 1 of the Constitution(i)

The Plaintiffs argue that Article 24, Paragraph 1 of the Constitution should beinterpreted as guaranteeing the freedom of marriage, which is a freedom directly
derived from the dignity of the individual (which must come before the country)
and that such freedom of marriage extends to same-sex marriage, and that
therefore the Provisions are in violation of Article 24, Paragraph 1 of theConstitution by restricting without justifiable grounds the core part of themarriage system required by and intended by the Constitution.

(ii)

Article 24, Paragraph 1 of the Constitution provides that "Marriage shall bebased 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 abasis." This can be interpreted as making clear the intent that whether to marry
and when and with whom to marry must be left to the free and equal decision of
the individual parties. Marriage is considered to have significant legal effects,
including a spouse's right of inheritance (Article 890 of the Civil Code) and achild born between husband and wife being a legitimate child (Article 772,
Paragraph 1 of the Civil Code, etc.). Furthermore, while the public's views on
family etc. has been said to have diversified in recent years, considering that thegeneral public continues to place great importance on legal marriage, thefreedom of marriage as noted above can be construed to deserve full respect inlight of the intent of Article 24, Paragraph 1 of the Constitution.
Article 24, Paragraph 2 of the Constitution provides that "With regard to choiceof spouse, property rights, inheritance, choice of domicile, divorce and othermatters pertaining to marriage and the family, laws shall be enacted from thestandpoint of individual dignity and the essential equality of the sexes." Mattersconcerning marriage and the family should be determined holistically based on
the overall discipline of spousal and parent-child relationships under social
conditions (including national customs and public sentiment). Accordingly, it isappropriate for the details of such matters to be specified pursuant to law, rather
than primarily in the Constitution. From this perspective, Article 24, Paragraph
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2 of the Constitution delegates the establishment of a specific system regarding
matters concerning marriage and the family to the Diet's reasonable legislative
discretion in the first instance, and at the same time requires, and provides
guidance that, such laws must be enacted from the standpoint of individual
dignity and the essential equality of the sexes, thereby placing a clear limitation
on such discretion (see Case number 2013 (O) 1079, Supreme Court Grand
Bench judgment of December 16, 2015, Minshu Vol. 69, No. 8, p. 2427
(hereinafter referred to as the "2015 Saikon Kinshi Kikan Grand Bench
Judgment"), and Case number 2014 (O) 1023, Supreme Court Grand Bench
judgment of December 16, 2015, Minshu Vol. 69, No. 8, p. 2586 (hereinafterreferred to as the "2015 Fufu Doushi-sei Grand Bench Judgment")).
According to the above, Article 24, Paragraph 2 of the Constitution delegates
the establishment of a specific system regarding matters concerning marriage
and the family to the Diet's reasonable legislative discretion, and at the sametime requires, and provides guidance that, such laws must be enacted from thestandpoint of individual dignity and the essential equality of the sexes, thereby
placing a clear limitation on such discretion, and Article 24, Paragraph 1 of theConstitution requires that, among such matters, with respect to lawmaking
regarding marriage and the establishment of a legal marriage system, thelegislative branch defer to the free and equal decision of the individual parties
whether, when and with whom to marry.
(iii)

Based on the above understanding, we consider whether "marriage" under
Article 24, Paragraph 1 of the Constitution, which requires the establishment ofa legal marriage system, can be interpreted to include not only heterosexual
marriage but also same-sex marriage.
First, Article 24, Paragraph 1 of the Constitution uses the words "both sexes"and "husband and wife" both of which indicate the male sex and female sex. In
this regard, reviewing the legislative history of Article 24 of the Constitution,
terms referring to both the male sex and female sex were consistently used. For
example, Article 23 of the GHQ draft uses the term "both sexes," while Article
37 of the "March 2 Draft" and Article 22 of the "March 5 Draft" prepared by theJapanese-side in response to the GHQ draft use the term "both male and female."
Based on this, it can be established that the wording "mutual agreement of both
sexes" was ultimately used in lieu of "mutual agreement of a man and a woman"(Findings of Fact (2)(iii) above). Therefore, from such wordings, it is natural toconstrue that "marriage" as referred to in the Article refers to heterosexual
marriage.
Furthermore, as noted in Findings of Fact (2)(iii) above, there is no evidence
that there were any discussions on same-sex marriage during the process ofdeliberation in the Imperial Diet when the Constitution was enacted, and it canbe surmised that it was assumed marriage referred to that between the opposite
sex. The same can be said of the deliberation process of the current Civil Code,33

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which was revised in accordance with the enactment of Article 24 of theConstitution, etc. (Findings of Fact (2)(ii), (iv) above).
Accordingly, it is appropriate to construe that "marriage" as referred to in Article
24 of the Constitution refers to marriage between the opposite sex and does notinclude same-sex marriage.
(iv)

However, the Plaintiffs argue that even if the term "marriage" in Article 24 of
the Constitution at the time of its enactment referred to marriage between the
opposite sex, in light of the principle of the Constitution and subsequent societal
changes, it should be construed that same-sex marriage should be included intoday's interpretation. We will therefore consider this issue.
(a)Based on the foregoing facts, as noted in Findings of Fact (2)(i) above,
marriage has been construed as a relationship that can be viewed as amarriage under the social norms of the time (or a socially approved
personal union) rather than an intimate personal union between two
individuals and, as noted in (iii) above, it was assumed as a matter of fact
at the time the Constitution was enacted that marriage was the union of a
man and a woman, and whether same-sex marriage was included in theconcept of marriage was not even discussed. In addition, as mentioned in
Findings of Fact (2)(i) and (3)(ii) above, there were no laws approving
same-sex marriage at that time, whether domestically or internationally.
Therefore, it can be concluded that, at the time the Constitution wasenacted, there were no social norms or social approval in this country to
the effect that personal unions between couples of the same sex was
considered marriage, and accordingly, it can be concluded that theConstitution which only recognizes personal unions between couples ofthe opposite sex as "marriage" was enacted as noted above pursuant tosocial norms recognizing marriage as that between a man and a woman.
While social norms and the public's mindset and values regarding
marriage and family may change, in recent years, social acceptancetowards sexual minorities (including homosexual persons) has advanced,
and misconceptions that homosexuality is abnormal or a medical
condition are being improved in many countries. We recognize that there
are movements to overcome discrimination and prejudice against
homosexuality, including, as noted above in Findings of Fact, the fact thatthe view that homosexuality is a disease has been rejected by mental
health professionals (Findings of Fact (1)(ii)(c) above), the fact that
progress is being made to repeal laws penalizing sexual intercourse
between individuals of the same sex in countries that previously had suchlaws (Findings of Fact (1)(ii)(b) above), the fact that many countries haveadopted Registered Partnership Systems that provide same-sex couples
with a certain status as well as legal protections and certification(Findings of Fact (3)(i) above), that approximately 30 countries andregions have legalized same-sex marriage since 2001 (Findings of Fact
34

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(3)(ii)(a), (b) above) and the fact that there are movements in Japan toprovide same-sex couples with certain legal protections, including the
adoption of Registered Partnership Systems by many local governments(Findings of Fact (4)(i) above). It therefore follows that the Plaintiffs'
argument that "marriage" under Article 24 of the Constitution should beinterpreted to include same-sex marriage cannot be immediately denied
given these major changes in social conditions surrounding homosexual
persons etc.
(b)

However, as discussed in Findings of Fact above, throughout history
humans have procreated and preserved our species through the sexual
union between a man and a woman. The marriage system (the legal
marriage system) was created in order to regulate such relations with
common rules, and it can be said that marriage has traditionally beenrecognized as the core of a family by maintaining childbearing andcohabitation etc. communally between a man and a woman (Findings ofFact (2)(i) above). Until same-sex marriage laws were adopted in the
Netherlands in 2001, such views of marriage were common across nations
and marriage was considered as the union between a man and a woman(Findings of Fact (2)(i), (3)(ii) above). Based on these facts, it cannot bedenied that the background and basis behind the fact that the personal
union between a man and a woman has traditionally been given social
approval as marriage is due to the important and fundamental societal
function of a man and a woman becoming husband and wife, having andraising children, and living and cohabiting as a family connecting on to
the next generation.
As discussed above, social norms and the public's mindset and values
regarding marriage and family change over time. In Japan as well, views
on marriage have become more diverse than before, and it goes without
saying that the choice not to marry or the choice not to have children even
if married is part of individual freedom. However, we recognize that there
are survey results showing, for example, that responses that it is notdesirable to remain single for one's entire life or that having children as
the reason for getting married constituted a majority (Findings of Fact (6)above), and that therefore there remains a certain portion of the populationthat place great value on legal marriage or that connect marriage withhaving children.
In this regard, even despite the changes in social conditions surrounding
homosexual persons and the importance of abolishing discrimination andprejudice against homosexuality, it needs to be considered further andcarefully whether there exist social norms or social approval that samesex couples who are clearly not capable of natural reproduction between
themselves should, in addition to being granted certain legal protections
with respect to their personal union, be treated as being in the same kind
35

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of "marriage" as that between individuals of the opposite sex that is the
subject of the Provisions (note that this is not to deny that female samesex couples can give birth to children through assisted reproductive
technology etc., or that same-sex couples can raise children; rather, thisis simply to say that the long-standing practice of a man and a woman
living together and having and raising children does not apply to samesex couples).
As noted in Findings of Fact (5) above, according to the results of public
surveys in Japan, while the percentage of people who are opposed to theintroduction of same-sex marriage is shown to be declining, there
continues to be a certain percentage of people who are opposed andaccordingly we recognize there are conflicting values that exist withinsociety. Although most of such views are likely to be attributable totraditional values that view marriage as a personal union between a man
and a woman, given that such traditional values are based on the longstanding human practice of a man and a woman becoming husband andwife, having and raising children, and living and cohabiting as a family
connecting on to the next generation, it is difficult to unilaterally rejectsuch values.
(c)Based on the above, despite movements in Japan to overcome
discrimination and prejudice against homosexuality and to grant certain
legal protections for same-sex couples as previously discussed, we areunable to conclude that there currently exists social approval of treating
the personal union between individuals of the same sex as the same"marriage" as that between a man and a woman.
Therefore, even in light of changes in social conditions since theenactment of the Constitution, we are unable to conclude at this time thatthe interpretation in (iii) above that "marriage" under Article 24 of theConstitution does not include same-sex marriage is unjust and that
therefore such interpretation must be changed.

(v)

The Plaintiffs further argue that the core part of the marriage system required by
the Constitution is the freedom to marry the person of one's choice based solely
upon the mutual agreement of both parties, and that therefore the freedom ofmarriage is also protected with respect to same-sex marriage.
The Plaintiffs are correct that at the time of the enactment of the Constitution,
the abolition of the family system was discussed and it was decided that amarriage could be formed based solely upon the mutual agreement of bothparties, without the need for approval of the head of household or others.
However, this is based on the understanding that such marriage must mean apersonal union that is socially approved by a given society as "marriage," and it
cannot be said at this time that there exists social approval of same-sex marriage
36

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within society, as discussed above. Accordingly, the Plaintiffs' argument lacks
any basis, and cannot be upheld.
(vi)

Based on the foregoing, "marriage" under Article 24 of the Constitution cannot
be interpreted to include marriage between same-sex couples, and Article 24,
Paragraph 1 of the Constitution cannot be interpreted to require that legislation
regarding marriage must defer to the free and equal decision of the individual
parties.
Therefore, it cannot be said that the Provisions, which limit marriages toheterosexual ones and do not allow same-sex marriages are in violation of
Article 24, Paragraph 1 of the Constitution.

(2)

Compliance with Article 14, Paragraph 1 of the Constitution(i)

Article 14, Paragraph 1 of the Constitution provides for equality under the law,and this provision should be construed to prohibit discriminatory legal treatment
unless it is based on reasonable grounds in accordance with the nature of thematter (see Case number 1962 (O) 1472, Supreme Court Grand Bench judgmentof May 27, 1964, Minshu Vol. 18, No. 4, p. 676, Case number 1970 (A) 1310,
Supreme Court Grand Bench judgment of April 4, 1973, Keishu Vol. 27, No. 3,
p. 265, the 2015 Saikon Kinshi Kikan Grand Bench Judgment and the 2015 Fufu
Doushi-sei Grand Bench Judgment).
Furthermore, as discussed above in (1)(ii), Article 24, Paragraph 2 of theConstitution delegates the establishment of a specific system regarding mattersconcerning marriage and the family to the Diet's reasonable legislative
discretion in the first instance, and at the same time requires, and provides
guidance that, such laws must be enacted from the standpoint of individual
dignity and the essential equality of the sexes, thereby placing a clear limitation
on such discretion. Therefore, with respect to differential treatment on mattersconcerning marriage and the family, even in light of the above discretionary
power granted to the legislative branch, it can be said that such differential
treatment is in violation of Article 14, Paragraph 1 of the Constitution if there
are no reasonable grounds for such treatment (see Case number 2012 (Ku) 984,
985, Supreme Court Grand Bench judgment of September 4, 2013, Minshu Vol.
67, No. 6, p. 1320).

(ii)

(a)

The Plaintiffs argue that the Provisions employ differential treatment withrespect to the availability of marriage based on sexual orientation.
The Provisions do not make heterosexual sexual orientation a requirement
for marriage, but they effectively result in making same-sex marriage
impossible by limiting marriage to that between members of the opposite
sex, and therefore they can be said to constitute differential treatment
based on sexual orientation.

37
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(b)In contrast, the Defendant argues that as the Provisions merely definemarriage as being between one man and one woman, and the wording of
the Provisions do not make a particular sexual orientation a requirement
for marriage, there is no formal inequality based on sexual orientation.
However, as the true essence of marriage is that in which the parties live
a communal life with a sincere intention of a lasting mental and physicalpartnership, and since homosexual persons marrying the opposite sex
cannot achieve this true essence of marriage - even if the system ofmarriage with the opposite sex can be used formally by homosexual
persons - it is the equivalent of a situation where homosexual persons areunable to marry. Consequently, though the Provisions themselves do not
set any requirements for sexual orientation and sexual orientation istreated in a neutral manner, it is practically impossible for homosexual
persons to marry, and such effect can be regarded as a result of the factthat the Provisions limit marriage to that between members of the
opposite sex. Therefore, it can be regarded as differential treatment basedon sexual orientation. The Defendant’s argument on this point is without
merit.

(iii)

As described above, the Provisions treat the possibility of marriage differently
based on sexual orientation, and as a result, homosexual persons are placed in asituation where they cannot utilize the entire marriage (legal marriage) system,
and unlike heterosexual persons, it can be said that such parties are
disadvantaged by being unable to access the various legal effects of marriages.
However, as mentioned above, Article 24, Paragraph 1 of the Constitution
should be construed as requiring legislation regarding legal marriage between
the opposite sexes. Behind the socially accepted idea of marriage as being
between those of the opposite sex is the concept in which a man and a woman
become husband and wife, give birth to a child, raise the child, and live
communally as a family, leading to the next generation. Consequently, the factthat the Provisions do not permit marriage between members of the same sex,
limiting marriage to that between those of the opposite sex, is based on anecessity for the establishment of a legal marriage system set forth in Article 24,
Paragraph 1 of the Constitution on the premise of the above-mentioned sociallyaccepted idea. It can be regarded that there are reasonable grounds for the above
differential treatment.
Therefore, it cannot be said that Article 14, Paragraph 1 of the Constitution
limiting marriage to that between heterosexual persons and not recognizing
marriage between homosexual persons exceeds the scope of the legislative
discretion and constitutes discrimination based on sexual orientation.

(iv)

On the other hand, the Plaintiffs argue that a rigorous examination should be
conducted to determine whether reasonable grounds for the above-mentioned
differential treatment can be found, arguing further that that it is obvious there
38

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are no reasonable grounds for the above differential treatment, given that thedisadvantage to homosexual persons is enormous and that the purpose of themarriage system is to protect common living based on intimacy.
However, as mentioned above, “marriage” in Article 24 of the Constitution
refers to marriage between two sexes, and Paragraph 1 of the same article
requires the establishment of a legal marriage system for marriage between thetwo sexes. On the other hand, it cannot be construed that marriage between thoseof the same sex provides equal securities to marriage between members of the
opposite sex. Even if the purpose of the marriage system is considered to be theprotection of communal living of those in personal unions, it is difficult to saythat the Provisions limiting marriage to that between heterosexual persons andnot recognizing marriage between homosexual persons exceeds the scope oflegislative discretion and are in violation of Article 14, Paragraph 1 of theConstitution.
(v)

The Plaintiffs also argue that the Provisions demonstrate a discriminatory
treatment based on gender. However, under the Provisions, both men andwomen can marry a member of the opposite sex, while neither men nor womencan marry a member of the same sex, and neither men nor women are treateddisadvantageously by reason of sex. Therefore, the Provisions cannot be
regarded as discriminating based on sex.
Therefore, the Plaintiffs’ argument in this respect cannot be accepted.

(3)

Conformity to Article 24, Paragraph 2 of the Constitution
(i)

(a)

As mentioned above, if it is construed that “marriage” under Article 24 of
the Constitution refers to marriage between members of the opposite sex,
it cannot be said that the fact the Provisions do not allow marriage
between members of the same sex is in violation of Article 24, Paragraph
1 and Article 14, Paragraph 1 of the Constitution.

(b)

However, as mentioned above, Article 24, Paragraph 1 of the Constitution
provides that with respect to the legislation of “marriage” between
members of the opposite sex, the legislature should entrust the decisionof whether or not to marry, and whom to marry, to the free and equal
decision-making of the parties. It does not mention the inclusion of
marriage between members of the same sex in the legal marriage system.
Considering the discussions at the time of its enactment, it isacknowledged that the main purpose of the said article was to abolish thepower of the head of the household attached to the family system under
the Meiji Civil Code, and enable marriage based solely on the agreementof both parties. While the article assumes opposite-sex marriages, it does
not proactively attempt to eliminate or prohibit same-sex marriages(Findings of Fact (2)(iii) above).

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It is understood that the essence of marriage is for the parties concerned
to live a communal life with the sincere intention of a lasting mental andphysical union. However, such a purpose and intention to live acommunal life is equally applicable to same-sex couples, and regardlessof their sexual orientation, this is regarded as an important right for the
personal survival of the individual.
Therefore, Article 24 of the Constitution provides for legislation thatallows marriage between members of the same sex as provided in theProvisions, and it does not prohibit the establishment of a system for the
personal union of same-sex couples that is akin to marriage. Suchlegislation does not violate Article 24 of the Constitution unless its
content deviates from the scope of discretionary power granted to thelegislature regarding the dignity of the individual and the intrinsic
equality of both sexes.
(c)

In accordance with the Provisions, homosexual individuals are unable toutilize the marriage system due to their sexual orientation, a reason that isbeyond their personal intention. As mentioned in Findings of Fact (4)(i)above, several local governments have introduced partnershipcertification systems which socially recognizes same-sex couples aspartners or families. However, this is an initiative by each local
government, and such a system does not exist at the national government
level. As a result, homosexual individuals are unable to receive legal
protection and social recognition when living communally with theirpartners.
Article 24, Paragraph 2 of the Constitution deals not only with mattersconcerning marriage but also matters concerning families, and indicatesthat legislation should be based on the dignity of individuals and theessential equality of both sexes. We examine the conformity of theProvisions with Article 24, Paragraph 2 of the Constitution, taking into
consideration whether this situation lacks rationality in light of the dignityof individuals as set forth in Article 24, Paragraph 2 of the Constitution,
and whether we have to deem it outside the scope of legislative discretion.

(ii)

As mentioned in (1)(ii) above, Article 24, Paragraph 2 of the Constitution
primarily entrusts the Diet with reasonable legislative discretion to establish a
specific system and defines the limitation of its discretion with a demand andprovides guidelines that the legislation should be based on individual dignity
and the essential equality of the sexes, based on Paragraph 1 of the same article.
Furthermore, in light of the fact that Article 24 of the Constitution clearly andintentionally states the legislative demand and guidelines for legislative action
to be carried out by considering various elements in substance, the requirements
and guidelines do not merely require that legislation should not infringe on
personal rights guaranteed as constitutional rights, and it is not sufficient that
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legislation that secures the formal equality of both sexes is enacted. Therefore,that Article calls for the enactment of legislation with due consideration torespect personal interests, which may not be directly guaranteed under theConstitution, and to ensure the substantial equality of both sexes. In this regard,
the Article also creates a limited requirement for legislative discretion andprovides guidance for it.
On the other hand, matters concerning marriage and family should bedetermined by a comprehensive consideration of the overall norms of thefamilial relationship in each historical era, taking into account various factors insociety, including national traditions and national sentiments. In particular,
personal interests and substantial equality, which cannot be considered to be
directly guaranteed under the Constitution, can be diverse in their content, andtheir realization should be determined in relation to social circumstances, theliving conditions of people and the circumstances surrounding family life at therelevant times. Under the circumstance that the provisions of the law which
provide for the legal system concerning marriage and family conform with
Article 14, paragraph 1 of the Constitution, whether or not such provisions of
the law conform with Article 24 of the Constitution, should be judged from theviewpoint of examining the purpose of the legal system and the impact of
adopting the system, and whether or not the provisions are unreasonable in lightof the requirements of individual dignity and essential equality of the sexes andare beyond the scope of the Diet’s legislative discretion (See the 2015 Grand
Bench Judgment on the common surname system of husband and wife.)
(iii)

(a)

The system of (legal) marriage has been established as a package ofvarious laws, and a variety of legal effects arise from marrying. For
example, the Civil Code stipulates the obligation of husband and wife tolive together, cooperate and support each other (Article 752), to share theexpenses of marriage (Article 760), the presumption of joint ownershipof property (Article 762, Paragraph 2), the distribution of property in caseof divorce (Article 768), the presumption of legitimate marriage (Article
817-3), the joint parental authority of husband and wife (Article 818), theright of inheritance of spouses (Article 890), the right of residence of
spouses (Article 1028), the right of short-term residence of spouses(Article 1037), and the legally reserved portion (of inheritance) (Article1042), etc. The Family Register Act stipulates when a marriage
notification is filed, a new family register shall be created for the married
couple (Article 16, Paragraph 1 (main text)) and, if a child is born, thechild shall be entered in the family register of its parents (Article 18). In
addition, in the fields of tax, social security, immigration control, etc.,
there are many cases in which marriage (being a spouse) is a requirement
for individual laws and regulations to have legal effect. Many of theseprovisions are intended to legally protect the family relationship when
husband and wife live a joint life and, in some cases, give birth to andraise a child.
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Further to the legal effects of such provisions, marriage also has the effectof enabling the parties to be publicly recognized as a family in society andto thereby live a stable communal life.
(b)

As such, marriage provides legal protection and social recognition tocommunal life built upon an intimate personal union. It can be said that
establishing such an intimate personal union, leading a communal life
with a certain degree of perpetuity, and forming a family are extremely
significant factors in the enrichment of the lives of the persons concernedand one of the most important matters in their lives, and therefore,
obtaining legal protection and social recognition of marriage can be
regarded as having extremely high significance.
As mentioned in the Findings of Fact (6)(iii) above, approximately 60%of unmarried men and women answered that they agreed with the survey
prompt “it is not desirable to remain single for one's entire life”, while
nearly 90% responded that they agreed with the survey prompt “I intend
to marry someday”. Amid the diversification of people’s attitudes andvalues concerning marriage and family, the pervasiveness of respect for
legal marriage is evidence that the legal effect of social recognition
through marriage is significant and valuable.
If this is the case, the benefit obtained through marriage, becoming afamily with a partner, enjoying legal protection as a family living together,and receiving social recognition is an important personal benefit related
to the dignity of individuals.

(c)According to the results of the examination of the Plaintiffs and the entire
import of the oral argument, homosexual individuals also live as membersof society by building close personal unions, living together with partners,
and even raising children in some cases; the actual situation is no different
from that of married men and women, and it can be said that becoming afamily legally with their partner has extremely important significance for
their personal survival.
Thus, the benefit obtained from being legally protected as a family,
receiving social recognition in terms of becoming a family with theirpartner, and living a communal life can be regarded as a significant
personal benefit related to the dignity of individuals.

(iv)

(a)

Among the legal effects of marriage mentioned in (iii)(a) above, there aresome that can be realized to a certain extent by contracts between parties
even in a personal union between same-sex persons. These can be realized
to a certain extent by using contracts and other systems under the Civil
Code; for example, with regard to the obligation to live together andprovide mutual cooperation and mutual assistance (Article 752 of the
Civil Code), it can be said that a similar effect can be generated by a42

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contract, and it is possible to vest the property of one of the parties withthe other after their death, like inheritance by contract or will.
However, there are some cases, such as joint parental authority andpreferential treatments under the tax laws, where it is impossible ordifficult to realize the same benefits through contract that are obtainablethrough the marriage system. And, in the case of contracts, it is necessary
to conclude an individual contract in advance, unlike in the case of amarriage.
(b)

In addition, same-sex couples can freely live a communal life, which theProvisions do not restrict. However, as mentioned above, there is still adeep-rooted ideal in our country that emphasizes legal marriage, and it
has been found that, in practice, it is only through marriage that a couple
is really acknowledged and recognized as a family in society and thereby
able to live a stable social life; however, since there is no such means ofsocial recognition under the law for personal unions between members of
the same sex, members of such unions experience the disadvantage of not
being treated as families in their daily social lives. According to theresults of the examination of the Plaintiffs in this regard, it is found that
there may be persons who have suffered disadvantages, such as that s/he
could not receive an explanation of the medical condition of their partner
or could not become a guarantor at the time of hospitalization becauses/he was not recognized as a family member when their partner received
medical treatment at a medical institution.
As mentioned above, sexual orientation is not altered by the efforts ortreatment of the person (Findings of Fact (1)(a) above), and it ispractically impossible for homosexual persons to marry under the existing
law.

(c)

In this way, homosexual people do not currently have a legal system thatenables them to form a family with their partner, and it is extremely
difficult under the law for them to have a family and build a home together
throughout their lives. It goes without saying that individuals are free tochoose not to have a family, but it can be said that it is a serious threat or
impediment to their personal survival that, even if they wish to create afamily with a particular partner, it is impossible for them to do sothroughout their lives because they are homosexual. In addition, it seems
that there are cases in which one member of a same-sex couple adopts theother to circumnavigate the prohibition on same-sex marriage. The use of
adoption to create a parent-child relationship for the purpose of
establishing a family union in a personal bond similar to that of a man anda woman is an alternative that is unavoidable due to a lack of othersystems, and it cannot be said that that is comparable with the actual
situation and conditions of their personal unions.
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(v)

(a)

Taking the above into account, we examine whether or not the Provisions
are in compliance with Article 24, Paragraph 2 of the Constitution, giventhat the current law, including the Provisions, does not provide a legal
system for becoming a partner or family, or social recognition of
cohabitation arrangements (hereinafter referred to collectively as a "Legal
System for Becoming a Partner and Family"), which is unreasonable inlight of the dignity of the individual and is beyond the scope of thelegislative discretion of the Diet.)(b)

As mentioned in Section (1)(iv) above, the social circumstances
surrounding homosexual individuals has recently undergone majorchanges, and the past conclusion that homosexuality is an aberration or an
illness is undergoing revision. In many countries, Registered Partnership
Systems, which provide certain status and legal effect to personal unions
between individuals of the same sex, have been introduced. Furthermore,
it is recognized that since 2001, legislation that allows marriage between
individuals of the same sex has been enacted in approximately 30
countries. Many municipal governments in Japan have introduced
partnership certification systems, and there are examples of privatecompanies that treat personal unions between individuals of the same sex
the same as that of husband and wife. Thus, there is a movement to provide
a certain level of protection to same-sex couples.
In addition, according to a survey of sexual minorities, it is recognizedthat 80 – 90% of respondents desire a system of marriage between
individuals of the same sex or a national-level partnership certification
system (Findings of Fact (1)(i)(c) and (d) above).
Furthermore, although according to the results of a public opinion poll
conducted in 2014, the number of people who opposed the legal
recognition of marriage between individuals of the same sex exceeded thenumber of those in favor, since 2015, the number of those in favor exceeds
the number of those opposed, and in a survey conducted in 2020 targeting
voters nationwide, the number of those in favor was 46%, and the numberof those opposed was 23%. It is noted that the number of those in favor
increased by 14% from a survey conducted in 2005, and it is also notedthat in a survey conducted in 2018, more than 75% of respondents statedthat some legal guarantees should be granted to same-sex couples(Findings of Fact (5) above).

(c)

In light of the above, the fact that there is no Legal System for Becominga Partner and Family is largely due to the fact that marriage has
traditionally been regarded as heterosexual, as mentioned above.
However, for purposes of establishing a Legal System for Becoming a
Partner and Family, in addition to a system of marriage between
individuals of the same sex, there are also systems similar to marriage,
such as those introduced in Italy and other foreign countries (Findings of
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Fact (3)(i) above), and it is considered that such systems are at leastcapable of being compatible with the traditional values of marriage
mentioned above.
In addition, many local governments have introduced and begun using
partnership certification systems as mentioned above, and the use of such
systems has expanded. Furthermore, there is nothing that suggests that
there would be any major obstacle to the establishment of a national-levelsystem similar to marriage in respect of personal unions between
individuals of the same sex. Rather, the establishment of such a system
would strengthen personal unions between individuals of the same sex andwould contribute to the stability of cohabitation arrangements, includingthat of children raised in such households, and this would strengthen thesocial base and lead to greater stability of society as a whole, including forheterosexuals.
(d)On the other hand, with regards to how to establish a Legal System for
Becoming a Partner and Family between individuals of the same sex, in
addition to including same-sex marriage in the current marriage system asrequested by the Plaintiffs, it is also possible to establish a separate system
similar to marriage that can be used between individuals of the same sex,
such as the systems introduced in other countries (Findings of Fact (3)(i)above), and to provide the partners with the same legal protections as
spouses in a marriage.
Furthermore, in the case of foreign legislation that allows marriage
between individuals of the same sex, as mentioned in (3)(ii)(e) above,
there are cases where the legal effect of "marriage" between individualsof the opposite sex and "marriage" between individuals of the same sex
differ (or where there were differences at the time of introduction). The
main reasons for this are whether or not the presumption of legitimacy isapplicable, whether or not adoption is permitted, and whether the use of
assisted reproductive technology is acceptable. It can be said that thelegislature should fully discuss and consider what kind of legal systemshould be adopted in the event that a Legal System for Becoming a Partnerand Family in regard to personal unions between individuals of the samesex is introduced, taking into account various social factors, including thenational tradition and public sentiment, as well as the welfare of children.

(e)Taking the above points into consideration comprehensively, it can be said
that the absence under the existing law of a Legal System for Becoming a
Partner and Family for homosexual individuals presents a serious threat
and disability to the personal survival of homosexual individuals, andthere are no reasonable grounds for such absence in light of the dignity of
individuals, and therefore such absence is in violation of Article 24,
Paragraph 2 of the Constitution. However, there are various ways toconstruct such a legal system, which are left to legislative discretion, and45

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it is not necessarily limited to the inclusion of same-sex marriage in thecurrent marriage system that is stipulated in the Provisions (for example,
a system that applies a slightly altered version of the existing marriage
system to personal unions between individuals of the same sex, or asystem similar to marriage that can be applied to individuals of the same
sex, etc., could be established).
It is possible to adopt another method. Therefore, it cannot be concluded
that the Provisions are in violation of Article 24, Paragraph 2 of theConstitution because they do not recognize marriage between individualsof the same sex.
(vi)

(a)

Considering the above, the Plaintiffs argue that the Provisions are inviolation of Article 24, Paragraph 2 of the Constitution because theyexclude same-sex couples from marriage and they promote social
discrimination and prejudice against the existence of same-sex couples,etc. and they divide society even though such couples have a communal
life that is not in any way different from heterosexual couples.

(b)

In this respect, it is noted above that the Provisions exclude homosexual
individuals from the legal framework of the family, and as a result, it is aviolation of Article 24, Paragraph 2 of the Constitution that there is no
Legal System for Becoming a Partner and Family with respect tohomosexual individuals under the current law. However, legislation by thelegislature, including the addition of marriage between individuals of thesame sex in the present marriage system, is an option to solve the abovementioned situation (as mentioned above, Article 24 of the Constitution is
not construed to prohibit legislation on marriage between individuals of
the same sex).
Furthermore, despite recent improvements, given that homosexuality has
long been considered unusual and has been the subject of discriminationand prejudice, the Plaintiffs' argument that including marriage between
individuals of the same sex in the current marriage system, or theestablishment of an identical system to marriage between individuals of
the same sex would contribute to the elimination of discrimination andprejudice is also acknowledged.

(c)However, matters related to marriage and family should be determined bythorough consideration that takes into account various social factors,
including national traditions and public sentiment, as well as the overall
discipline of family relations in each era. Therefore, it can be construed
that the legislature has reasonable legislative discretion.Even in countries
where a system of marriage between individuals of the same sex has been
introduced, many such countries introduced a partner registration system
in advance of the introduction of the marriage system (Finding of Facts(3)(i) and (ii) above), and the process of the introduction of such system
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varies. In addition, as mentioned above, it is noted that even in countries
where same-sex marriage has been introduced, discussions have been heldon whether the presumption of legitimacy is applicable, whether or not
adoption should be permitted, whether or not the use of assisted
reproductive technology should be used, and so on. It is inevitable thatthese points should be examined in Japan as well from the viewpoint of
the welfare of children and bioethics, and that we consider thecompatibility of these points with other systems, and this work should
primarily be left to legislative discretion. The Plaintiffs' submission thatthe exclusion of personal unions between individuals of the same sex fromthe marriage system would promote discrimination and prejudice can beconsidered a matter to be considered in the legislative body's examination
as well. However, it is difficult to conclude that the only option of thelegislature is to adopt legislation that would add marriage between
individuals of the same sex into the present marriage system. As
mentioned in (5) of the Findings of Fact above, it is not unrealistic to leave
the discussion and consideration of the above-mentioned points to thelegislature in a gradual manner, given that there has been a widespread
positive shift in opinion in recent years regarding the recognition of
marriage between the same sex and the recognition of legal guarantees forsame-sex couples.
(vi)

3

For the reasons stated above, the Provisions in the present case, which do not
permit marriage between individuals of the same sex but are limited to marriage
between individuals of the opposite sex, are not in violation of Article 24,
Paragraph 2 of the Constitution.

Concerning the point at Issue (2) (whether the failure of the Diet to take legislative
measures to enable marriage between members of the same sex is consideredillegal for purposes of the application of Article 1, Paragraph 1 of the State Redress
Act)
(1)

Article 1, Paragraph 1 of the State Redress Act provides that the national
government or a public entity shall be liable for any damage incurred as a resultof a public official exercising the public authority of the national government orof a public entity in violation of a legal obligation in the course of his/her duties
owed to an individual citizen. Whether legislation or omission by a member ofthe Diet is illegal in the application of this clause is a question of whether or notaction taken by a member of the Diet during the legislative process has violated
the legal obligations owed to individual citizens, and should be distinguishedfrom the issue of the constitutionality of the legislation.
In principle, the evaluation of the above-mentioned actions should be left to thepolitical judgment of the people, and even if the contents of the legislation
violate the provisions of the Constitution, legislative acts or legislativeomissions of Diet members are not immediately deemed to be illegal for the
purpose of applying Article 1, Paragraph 1 of the State Redress Act.
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However, in cases where the Diet fails to enact legislative measures, such asrevision or abolishment, for a long period of time without justification, despite
the fact that it is clear that the provisions of the law are unconstitutional in thatit restricts the rights and interests guaranteed or protected under the Constitution
without reasonable grounds, such legislative omission is an exception because
the Diet members' actions in the legislative process violated the abovementioned legal obligation in the performance of their duties, and such
legislative omission is subject to Article 1, Paragraph 1 of the State Redress Act.
(See Case no. 1978 (O) 1240, Supreme Court First Petty Bench decision ofNovember 21, 1985, Minshu Vol. 39, No. 7, at 1512, 2001 (Gyo-Tsu) No. 82,
No. 83, 2001 (Gyo-Hi) No. 76, 77, Supreme Court Grand Bench decision of
September 14, 2005, Minshu Vol. 59, No. 7, at 2087, decision of the Grand
Bench concerning the Prohibition Period of Re-marriage of 2015).
(2)

The Plaintiffs argue that, despite the fact that the Provisions are in violation of
Article 14, Paragraph 1, and Article 24, Paragraphs 1 and 2 of the Constitution,
the Diet has neglected to pass legislative measures to make marriage as provided
in the Provisions equally possible between homosexual individuals (legislative
measures enabling marriage between individuals of the same sex) for a long
period of time.
However, since the Provisions do not violate Article 14, Paragraph 1 or Article
24, Paragraphs 1 or 2 of the Constitution as stated in 2 above, it must be said
that the argument of the Plaintiffs is without merit. As mentioned in 2(3) above,
the absence of a Legal System to Become a Partner and Family for homosexual
individuals under the current law presents a serious threat and disability to thepersonal survival of homosexual individuals, and there are no reasonablegrounds for such absence in light of the dignity of individuals, and therefore,such absence is in violation of Article 24 Paragraph 2 of the Constitution.
However, as also mentioned above, because it is possible to establish two legal
systems in lieu of enacting legislation to include marriage between individualsof the same sex in the existing marriage system, no obligation to take legislative
measures to enable marriage between the same sex arises.
Therefore, the failure of the Diet to take legislative measures to enable marriage
between individuals of the same sex cannot be regarded as illegal for the
purpose of Article 1 Paragraph 1 of the State Redress Act.

IV

Conclusion

For the reasons stated above, the Plaintiffs' claims should be dismissed on the grounds that theylack a legal basis. Judgment is rendered as per the Main Text above.

Civil Department No. 16 of the Tokyo District Court
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Presiding Judge Momoko Ikehara
Judge Tatsuya Mashitomi
Judge Reitaro Yokoyama

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