[English Translation by Lawyers for LGBT and Allies Network (LLAN: llanjapan.org).
Original Japanese judgment available at [URL]]

Judgment delivered on May 30, 2023, original received on the same day - Court Clerk XXX
5Case No. (Wa) 597 of 2019, Claims for Damages against the State
Date of conclusion of oral argument: December 2, 2022
Judgment

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Parties: As indicated in Exhibit 1 (List of Parties).
Main text of Judgment

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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 pay each of the Plaintiffs 1,000,000 yen andinterest thereon at the rate of 5% per annum for the period from March 6, 2019, until20

the completion of payment.
II.

Summary of the Facts

1

In this case, the Plaintiffs, who are same-sex couples, allege that they are not allowed
to marry because the Defendant has not taken necessary legislative measures, despite

25

that provisions of the Civil Code and the Family Register Act, which do not permit
marriage between individuals of the same sex, are in a violation of Article 24 andArticle 14, Paragraph 1 of the Constitution. Based on Article 1, Paragraph 1 of the State
Redress Act, the Plaintiffs seek from the Defendant, compensation for non-pecuniary
damages of 1,000,000 yen each and delay damages thereon at the rate of 5% per annum

30

as provided by the Civil Code prior to the revision by Act No.44 of 2017 from March
6, 2019, the date of service of the complaint, until the completion of payment.
2
35

Undisputed facts (the facts that are not in dispute between the parties, or the facts
that are readily recognizable from the evidence listed below (references to1

evidence numbers includes all sub-sections unless otherwise specified and thesame shall apply hereinafter) and the overall import of the oral arguments)(1)

Sexual Orientation and Gender Identity
Sexual orientation is a term that refers to a person’s attraction to another person in asensual, emotional, or sexual manner. Sexual orientation in favor of a person of the5other sex is called heterosexuality, while sexual orientation in favor of a person of thesame sex is called homosexuality (hereinafter “heterosexual person” means a person
who has heterosexual orientation, and “homosexual person” means a person who has
homosexual orientation). In contrast, gender identity refers to each individual’s
intrinsic sensation of a person’s sex and is sometimes referred to as SOGI in

10

conjunction with sexual orientation. When gender identity differs from the sex
assigned at birth, the person is called transgender. Such persons are sometimes referred
to as LGBT in conjunction with homosexual women (Lesbian), homosexual men(Gay) and those who are homosexual and heterosexual at the same time (Bisexual). In
addition, LGBT is sometimes referred to as LGBTI in conjunction with Inter Sex, a15term used to describe certain characteristics of sexual differentiation in the body(hereinafter, minorities in sexual orientation and gender identity such as LGBTI, etc.
are collectively referred to as “sexual minority”) (Undisputed facts, Plaintiffs’
Evidence A2, 5, 114, the entire import of the argument).
The size of the LGBT population in Japan is not necessarily clear. However, a survey

20

conducted in April 2015 by private corporations etc. targeting 20- to 59-year-olds
found that 7.6% out of the 70,000 people surveyed were LGBT; a survey conducted in
May 2016 found that approximately 5.9% out of the approximately 100,000 people
surveyed were LGBT; and a survey conducted in June 2016 found that 4.9% out of theapproximately 1,000 people surveyed were LGBT (Plaintiffs’ Evidence A237).

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(2)

The Plaintiffs
The Plaintiffs are both male and homosexual persons (the overall import of theargument).

30

The Plaintiffs [redacted in the Japanese original] prepared a notarial instrument of amarriage contract for the purpose that both parties establish the relationship equivalent
to a marriage under socially accepted ideas, and a notarial instrument of a voluntary
guardianship contract (Plaintiffs’ Evidence B l, 2).
On February 3, 2019, the Plaintiffs submitted a notification of marriage, under which

35

the two persons were parties of marriage, at their place of residence. On February 7,
2

2019 however, the notification of marriage was not accepted on the ground that the
notification of marriage, under which two men were the parties of marriage, was notlegal (Plaintiffs’ Evidence B3).
5

3

Provisions Concerning the Marriage System(1)

Provisions of the Civil Code and the Family Register Act
Part IV, Chapter 2, Section 1 of the Civil Code provides that a marriage shall become
effective by notification as provided by the Family Register Act (Article 739,
Paragraph 1), and also provides the requirements of a marriage. The Family Register
Act provides that, in light of Article 739, Paragraph 1 of the Civil Code, persons who

10wish to marry shall notify the surname that the husband and wife will use (Article 74,
Item 1 of the Family Register Act) (hereinafter, with regard to the provisions of the
Civil Code, the portion of family law of the Civil Code revised by Act No. 222 of 1947
may be collectively referred to as the “Current Civil Code”; the provisions of the
portion of family law before the said revision are referred to as the “Meiji Civil Code”;

15

and the said revision shall be referred to as the “Amendment to the Civil Code of1947”).
Concerning the effect of marriage, the Civil Code contains provisions for the important
effects of a marriage, such as the unification of surnames (Article 750), the obligationof living together, cooperation and assistance of a husband and wife (Article 752) in

20

relation to the legal effect of marriage, the sharing of expenses of marriage (Article760) in relation to the property of the husband and wife, the division of property(Article 768) in relation to divorce, the presumption of a child in wedlock of a husband
and wife (Article 772, Paragraph 1) and parental authority (Article 818, Paragraph 3)
in relation to relationship between parents and children, and the spousal right of

25

inheritance (Article 890) in relation to inheritance. In addition, under the Family
Register Act, a new family register shall be created for a husband and wife upon
notification of marriage (main text of Article 16, Paragraph 1). The said family registershall describe the husband and wife as husband or wife (Article 13, Item 6). If a childis born, a notification must be submitted (Article 49, Paragraph 1), and the child shall30

enter the family register of the parent (Article 18). The original of the family registershall be kept at the city office, etc., and notarized (Article 8, Paragraph 2).
(2)
35Interpretation of Marriage between Individuals of the Same Sex
The provisions of the Civil Code and the Family Register Act do not explicitly prohibit3marriage between individuals of the same sex, but it is construed that marriage between
individuals of the same sex is not permitted in current practice because the Civil Codeand the Family Register Act refer to couples who marry as “husband and wife” and theparties as “husband” or “wife” (hereinafter the provisions of the Civil Code and theFamily Register Act that do not permit marriage between the individuals of the same5

sex are referred to as the “Provisions”).
4Issues and the Parties’ Assertions
The points at issue in this case are as follows, and the assertions of the parties
concerning this are as shown in Exhibit 2.

10(1) Whether the Provisions violate Article 24 and Article 14, Paragraph 1 of theConstitution (“Issue 1”).
(2) Whether it is illegal under the State Redress Act not to amend or abolish theProvisions (“Issue 2”).
(3) The damages incurred by the Plaintiffs and the amount thereof (“Issue 3”).

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III.

The Court’s Judgment

1

Findings of Fact
The following facts can be found in light of the evidence and the overall import of theoral arguments mentioned below.

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(1)

Perception of sexual orientation(i)

The current perception
The causes of sexual orientation or of homosexuality have not been found. However,majority of professional associations involved in mental health believe that sexual

25

orientation is, in most cases, determined in the early years of life or before birth andnot chosen by individuals. In the field of psychology, it is largely understood that it is
not possible to change a sexual orientation at will. The field of psychiatry has also
largely come to the conclusion that while some homosexual people may be able to alter
their sexual behavior, this does not mean a change in sexual orientation itself, and that30

sexual orientation will not change according to an individual’s own will or withpsychiatric therapy. (Plaintiffs’ Evidence A2, 3, 7, 242, 244)

35

(ii)

Changing Perceptions in Europe and the USA(a)Perception up to around the Middle of the 20th century
4

In the West, the view that homosexuality is a psychological pathology was asserted in
the field of psychiatry around the end of the 19th century, and the American Psychiatric
Association considered “homosexuality” as a form of “sexual deviations” in “the firstedition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-I)”
published in 1952, and, from its second edition (DSM-II) published in 1968, came to5treat homosexuality as an individual diagnosis. The World Health Organization(“WHO”)’s “ninth edition of the International Statistical Classification of Diseases andRelated Health Problems (ICD-9)” published in 1975 also listed the diagnosis of“homosexuality” in the section of “Sexual deviations and disorders” (Plaintiffs’
Evidence A24, 27, 29, 48, 273).

10

(b)

Perception since around the Middle of the 20th century
In contrast, in the field of sexual science and psychology, the view that homosexuality
is a psychological pathology came to be questioned around the middle of the 20th
century. The American Psychiatric Association adopted a resolution in 1973 not to treat

15

homosexuality itself as a psychiatric disorder and to newly establish a section of“sexual orientation disturbance” for homosexual individuals who “are either disturbed
by, in conflict with, or wish to change their own sexual orientation” in lieu of thediagnosis of “homosexuality” in DSM-II. Thereafter, the diagnosis was amended to“ego-dystonic homosexuality” in DSM-III and has come to be eliminated in DSM-III-20

R published in 1987. Major associations related to mental health such as the American
Psychological Association and the Association for Advancement of Behavior Therapy
in America also endorsed the same resolution since 1975. In addition, WHO adopted
the classification of “ego-dystonic sexual orientation” in lieu of “homosexuality” in
ICD-10 published in 1992 and clarified that the sexual orientation itself should not be

25

considered as a disorder (Plaintiffs’ Evidence A1, 24, 27 to 30, 48).

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(iii)

Changing perceptions in Japan(a)

Perception since around 1887
From 1887, the perception in the West that homosexuality is a psychological pathology
was introduced in Japan. In 1906, the view that regards homosexuality as either a formof sexual perversion or congenital disease, somewhere between being healthy andpsychotic was introduced, and in the Taisho era, the view that homosexuality is a formof “perverted sexual desire” and is a kind of infectious disease was also introduced.

35

Even in 1993, homosexuality was categorized as a “sexual abnormality” in major
5psychiatric textbooks. (Plaintiffs’ Evidence A24, 266, 279, Defendant’ Evidence 24 to
26)
In addition, in 1936, homosexuality in adolescence was considered to not cause any
concern as long as it remained within certain limits, but that a deepening affection
between persons of the same sex would lead to impure homosexuality and should

5

therefore be treated with extreme caution and should be completely prohibited.
Moreover, in 1979, the “Basic Material on Problematic Behavior of Students”
published by Japan’s Ministry of Education considered that homosexuality is generally
likely to impede the development of healthy heterosexual love and is not acceptablebecause it is socially contrary to sound social morality and is likely to result in sexual

10

disorders (Plaintiffs’ Evidence A26, Defendant’s Evidence 27).
(b)

Perception since around 1995
The Japanese Society of Psychiatry and Neurology released in 1995 a view that sexual
orientation to same-sex itself is not regarded as a mental disorder in accordance with

15

the ICD-10 in response to a request from a citizen group (Plaintiffs’ Evidence A48, 279).
(2)

Marriage Systems(i)

Traditional Understanding of the Marriage Systems
Mankind has preserved itself through relationships between men and women, and20

marriage was devised as a system to regulate said relationships by norms. In any society,legal norms affirm relationships typical to that society and strive to maintain them.
Although the forms of such legal norms vary across the ages and regions dependingon the economic and political conditions or moral philosophy of the society, they haveexisted as an acknowledgement of the legitimate relationships between men and25

women. Traditionally, such legal norm recognize not simple sexual relationships
between men and women, but rather, what forms the core of the family as a communityof a man and a woman through functions such as protecting and nurturing children
born therebetween and maintaining cohabitation by division of labor (Plaintiffs’
Evidence A247, Defendant’s Evidence 1, 2, 21, 22).

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(ii)

Marriage System under the Meiji Civil Code(a)History of Enactment of the Meiji Civil Code
Before the Meiji Period, Japan had certain customs on marriage while any unified legal

35

systems did not exist. Accordingly, Act No. 98 of 1890 (hereinafter referred to as the6“Old Civil Code”) was promulgated in 1890. Although the Old Civil Code was notenforced afterwards, after partial amendments, the Meiji Civil Code was enforced in
1898 as the law to supplement harmful matters and ambiguous matters while keeping
existing customs. Under the Meiji Civil Code, marriage was regarded as a legal
relationship between one man and one woman for the purpose of cohabitation for life

5

(Plaintiffs’ Evidence A173, 178, 180, 181, Defendant’s Evidence 3).
(b)

Discussions in the Enactment Phase
In the drafting phase of the first draft of the Old Civil Code, since marriage is aconnection of men and women, it was naturally regarded that marriage between

10

individuals of the same sex should be invalid, and it is unnecessary to dare to include
it as a ground for invalidity of marriage. The Meiji Civil Code also kept this position(Plaintiffs’ Evidence A165, 166).
Furthermore, in the first draft of the Old Civil Code, marriage was characterized by theunion of the two minds and the ability of reproduction is not an indispensable

15

requirement for marriage, thus the inability to reproduce due to old age or other reasons
was not listed as a ground for impediment to marriage. The Meiji Civil Code adopted
the same position as well and did not list the inability of reproduction as a ground ofinvalidation or revocation of marriage or as a ground of divorce (Plaintiffs’ Evidence A
172, 173, 178, 179).

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(c)

Details of the Marriage System under the Meiji Civil Code
Under the Meiji Civil Code, based on the concept of the family system (kazoku shugi),
which centers around the household (ie), the head of the household (koshu) was given
the power to control the household (koshu-ken), and based on the idea that marriage is25

for the benefit of the household, the consent of the head of the household or parents
was required for marriage of a child under a certain age (30 years old for males and 25
years old for females). In addition, based on the feudal samurai morality with respectfor male and male line, dominance of a husband over a wife was accepted in themarriage relationship, and even regarding inheritance, succession to a family by a sole

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male was considered to be primary and female was placed in a subordinate position tomale in the inheritance order (Plaintiffs’ Evidence A19, 142, 179, 180, 181).

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(iii)

Enactment of the Constitution of Japan(a)

Process of Enactment of the Constitution of Japan
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The Constitution of the Empire of Japan did not stipulate any provisions concerning
marriage and family. In February 1946, the General Headquarters of Supreme
Commander for the Allied Powers (the “GHQ”) proposed to the government Article
23 of the MacArthur draft, which stated that “Family is the basis of human society andits tradition is rooted in nations for good or bad. Marriage stands on the undisputed

5

legal and social equality of both sexes, it is based on the mutual agreement instead ofenforcement by parents, it is maintained by mutual cooperation instead of dominanceby the man. Any laws that contradict these principles should be abolished and, withregard to choice of spouse, property rights, inheritance, domicile, divorce and othermatters pertaining to marriage and the family, alternative laws shall be enacted based10

on respect for the individual and the inherent equality of the sexes.” (Plaintiffs’
Evidence A144, 146 to 148, overall import of the argument).
In response to Article 23 of the MacArthur Draft, in March 2 [AMT: Using a databaseof court precedents, we added the date although the date is not shown in the word fileof the Japanese version.]1946, the Japanese government prepared a draft amendment,

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which stated that “Marriage shall come into effect only based on the mutual consent
between man and woman, and it shall be maintained through mutual cooperation on
the basis that husband and wife have equal rights”, and on March 5 [1946?], a draft
was prepared which was composed of Paragraph 1 of the same draft and an added
Paragraph 2 which stated that “With regard to the choice of spouse, property rights,

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inheritance, domicile, divorce and other matters pertaining to marriage and the family,
laws shall be enacted based in respect of the individual and inherent equality of thesexes”. The draft was changed into a colloquial form in April 1946, and after
deliberation in the Imperial Diet and revisions based thereon, Article 24 of theConstitution was enacted in November 1946 (Plaintiffs’ Evidence A 146 to 148, 151,

25

entire import of the argument).
(b)

Discussions arising from the enaction process
In the process of enacting Article 24 of the Constitution, the issue before the Imperial

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Diet was whether the traditional family system would be maintained. Concerning thepoint that paragraph 1 of the same Article provides that "marriage shall be based only
on the mutual consent of both sexes", the Minister of Justice explained that the objectof the Meiji Civil Code was to eliminate marriages of children who had not reached acertain age through the consent of the head of their family or their parents, and to only

35

permit marriages based on the mutual consent of both sexes. There does not appear to8

be any evidence that marriage between people of the same sex was discussed.
(Plaintiffs’ Evidence A146, 152, entirety of Plaintiffs’ submissions)

5

(iv)

Marriage system under the current Civil Code(a)

Amendment to the Civil Code in 1947
In the amendment to the Civil Code in 1947, the provisions concerning the rights ofheads of households and the household system were abolished, and the provisions
concerning the right heads of households and parents to consent to a marriage wereabolished. The consent of parents was only required for the marriage of minors. In
addition, husbands and wives were each granted the ability to manage property, and10

spouses (wives) were granted the right of inheritance as a matter of course. (Plaintiffs’
Evidence A19, 180, 181)(b)

Discussions in the amendment process
In the explanation for the proposal for the amendment to the Meiji Civil Code, it was

15

pointed out that there were many provisions in the Meiji Civil Code, especially thesections concerning the family and succession, which conflicted with the basic
principles of Articles 13, 14, and 24 of the Constitution, and it was therefore necessary
to amend them. Amendments were focused on the provisions of the Civil Code thatconflicted with the Constitution of Japan, and the provisions that did not conflict with20

them were maintained as they were. In the course of that process, there does not appear
to be any evidence that marriage between people of the same sex was debated.
(Plaintiffs’ Evidence A180, 181, Defendant’s Evidence 7, 8, entirety of Plaintiffs’
submissions)25(3)

Trends in International Organizations Concerning the Protection of the Rights of
Sexual Minorities

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(i)

Trends in UN Treaty Organizations(a)Relief based on the individual reporting system
In 1994, the Committee on the International Covenant on Civil and Political Rights(the “ICCPR”) determined that laws punishing sexual behavior between men violated
Article 17 of the ICCPR, which secures the “right to respect for private life”, and thatthe prohibition on discrimination on the basis of “sex” referred to in Article 2(1) and
Article 26 of the ICCPR includes discrimination on the basis of sexual orientation, and35such laws therefore violated Article 2(1) of the ICCPR. In 2003, the Committee
9determined that the failure to grant a same-sex partner a survivor’s pension, on the basisthat they are the same sex as their partner, violated Article 26 of the ICCPR. (Plaintiffs’
Evidence A31, 32, 49)
5(b)Interpretation of the Covenant
In 2009, the Committee on the International Covenant on Economic, Social andCultural Rights (the “ICESCR”) revealed in its general opinion on the interpretation of
the ICESCR that prohibition on discrimination on the basis of “other status” stipulated
by Article 2(2) of the ICESCR includes discrimination on the basis of sexual
orientation, and that sexual orientation was not an obstacle to the realization of rights

10

under the ICESCR, such as the right to receive survivor’s pensions (Plaintiffs’
Evidence A50, 216).
(c)

Recommendations in relation to JapanIn October 2008, the Committee on the ICCPR recommended that the Government of

15

Japan consider revising laws such as the Public Housing Act and the Act on thePrevention of Spousal Violence and the Protection of Victims (hereinafter referred toas the “DV Prevention Act”) on the basis that same-sex couples were excluded fromtheir operation. In August 2014, the Committee made recommendations including theenactment of a comprehensive anti-discrimination law prohibiting discrimination on

20

all grounds, including sexual orientation and gender identity (Plaintiffs’ Evidence A38,
95, 96, 192).

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(ii)

Trends in the United Nations Human Rights Council(a)

Adoption of the SOGI Resolution
In 2011, with the agreement of 23 countries including Japan, the United Nations
Human Rights Council adopted the SOGI Resolution (Human Rights, Sexual
Orientation and Gender Identity), whereby it expressed grave concerns about violenceand discrimination on the grounds of sexual orientation and gender identity in various

30

parts of the world and requested that reports on the status of human rights be submitted
by the United Nations High Commissioner for Human Rights. In 2014, it again
adopted a resolution to the same effect with the agreement of 25 countries, including
Japan. In the report submitted by the United Nations High Commissioner for Human
Rights in 2015, it was recommended that same-sex couples and their children be

35

legally recognized and that benefits which were granted to married partners, such as
10

financial benefits, pensions, taxation and inheritance, should also be given to same-sex
couples and their children without discrimination. (Plaintiffs’ Evidence A31, 34, 199,
208)
5

(b)

Recommendations in relation to Japan
Pursuant to the Universal Periodic Review (“UPR”) regime by the United Nations
Human Rights Council, in the process of the first review in 2008 and the second review
in 2012, the UNHCR recommended that several countries (including Japan) takemeasures to eliminate discrimination on the basis of sexual orientation and gender
identity. In the process of the third review in 2017, it recommended that Switzerland

10

and Canada take actions such as expanding the official recognition of same-sex
marriage nationally, and that local governments and private companies take action topromote efforts to eliminate discrimination on the basis of sexual orientation andgender identity. (Plaintiffs’ Evidence A 38, 192, 193, 196 through 198)
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(iii)

Other trends
In 2006, at a meeting of international experts on international human rights law as well
as sexual orientation and gender identity, the “Principles Related to the Application ofInternational Human Rights Law on Sexual Orientation and Gender Identity” (the“Yogyakarta Principles”) was adopted. The Yogyakarta Principles are not official

20

documents of the United Nations or an intergovernmental agreement, and therefore do
not form part of the norms of international human rights law. However, all 29 principles
embody the right not to be discriminated against on the basis of sexual orientation orgender identity based on existing human rights treaties. Among those, it is clear that
there is the right to form families, regardless of sexual orientation or gender. (Plaintiffs’

25

Evidence A31, 33, 192)

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(4)

Trends in Other Countries Concerning the Protection of Same-sex Couples(i)Protection by way of registered partnership system(a)Countries that have introduced registered partnership systems
In 1989, Denmark introduced the world’s first registered partnership system (together
with the system described in (ii) below, hereinafter referred to as the “RegisteredPartnership System, Etc.”), a framework to legally protect the relationshipbetween same-sex couples. Although there were differences in the names and details

35of systems, various countries followed suit, with Norway in 1993, Sweden in 1994,
11

Iceland in 1996, the Netherlands in 1998, Finland and Germany in 2001, Luxembourg,
the United Kingdom, Switzerland and New Zealand in 2004, Austria in 2009, Irelandin 2010 and Malta in 2014, respectively introduced similar systems. (Plaintiffs’
Evidence A98, 140, 141, 249 through 251)5(b)Details of the systems
Except for countries such as the Netherlands and Luxembourg, many countries that
adopted such a registered partnership system provided the system only for same-sex
couples. Generally speaking, these systems granted same-sex couples largely the samelegal effects as marriage, and in the foreign countries mentioned in (a) above,10

inheritance, social security, and tax incentives were granted to same-sex couples whoenter into a registered partnership. (Plaintiffs’ Evidence A98, 140, 141)
On the other hand, with regard to the adoption system, in countries such as Austria, theUnited Kingdom and Sweden, adoption by same-sex couples was permitted very
similarly to opposite-sex couples, while in Germany, although several amendments

15

were made to the law, same-sex partners were not permitted to both adopt the child of
a third party. In countries such as Ireland and Norway, adoption by same-sex couples
was not permitted. Furthermore, in New Zealand, adoption was only permitted by the“spouses” under the Adoption Act 1955, so registered partnership couples were notgranted the right to use the adoption in the first place. In addition, the Status of Children

20

Act 1969 limited the application of the legitimacy provisions to married women, andtherefore, the presumption of legitimacy was not extended to children born to couples
in a registered partnership. (Plaintiffs’ Evidence A98, 140, 141)
Further, in some countries there were differences between heterosexual andhomosexual marriages. For example, in the United Kingdom, marriage is a sexual and25

religious system, whereas the registered partnership system is a non-sexual and secularsystem, so adultery did not constitute a reason for divorce. In Denmark, registeredpartners are unable to choose to have a religious wedding. (Plaintiffs’ Evidence A98,
140, 141)
30(ii)

Protection by way of legal cohabitation and PACS(a)

Legal cohabitation
The registered partnership system provides for a package of broad legal rights andobligations, including those under property law, personal status law, social security law,35

and tax law. However, for couples who do not want something with such mandatory12

legal effect, Belgium and Sweden have introduced a system called legal cohabitation,
primarily to confer a legal effect under property law. This system is not limited to samesex couples but also available to opposite-sex couples. In Belgium, it was alsoavailable to siblings, and inheritance rights and adoption were also allowed under thesystem. (Plaintiffs’ Evidence A98, 140, 141, 249)

5

(b)

PACS
In France, a system called PACS has been introduced. PACS allows two people to berecognized as a couple by the country and other parties, by setting their rights andobligations in a contract and registering such contract with the public authorities. The

10system can be used not only by same-sex couples but also by opposite sex couples. The
registration and publication under PACS provides a couple full rights under not only
the civil code, but also the labor law, tax law, and social security law. On the other hand,
there is no right of inheritance between a PACS couple, and there is no right of adoption
or right to assisted reproductive technology offered to PACS couples. Moreover,15

children born between a PACS couple shall be treated as illegitimate children.
(Plaintiffs’ Evidence A98, 140, 141, 249)(c)

Civil union and de facto communal living
In Italy, the Constitutional Court stated in 2014 that “marriage” refers only to the union

20

between individuals of the opposite sex, and that the union between individuals of thesame sex cannot be regarded as comparable to marriage. At the same time, theConstitutional Court stated that “it is unconstitutional that there is not “a different form
(altra forma) of marriage,” and that legally protected couples are not allowed tomaintain their relationships. In response, in 2016, the Regulations on Civil Union25

between the Same Sexes and Regulations on Communal Living was enacted. In therules on civil union, there are differences from marriage such as the absence of a dutyof fidelity and the absence of provisions on adoption, but they basically follow the rules
on marriage. In the rules on de facto communal living, certain rights are recognized
regarding the treatment of partners, assistance in the event of illness or hospitalization,

30

and the continuation of residence in shared housing. (Plaintiffs’ Evidence A98, 140,
141)

35

(iii)

Protection by way of marriage(a)Countries that allow same-sex marriage
13

The Netherlands introduced the world’s first same-sex marriage system in 2000;
Belgium in 2003; Spain and Canada in 2005, South Africa in 2006; Norway in 2008;
Sweden in 2009; Portugal, Iceland and Argentina in 2010; Denmark in 2012; France,
Uruguay, New Zealand, Brazil and the United Kingdom (England and Wales) in 2013;
Luxembourg and Ireland in 2015; Colombia in 2016; Finland, Malta, Germany and5Australia in 2017; Taiwan, Austria and Ecuador in 2019; Costa Rica in 2020 introduced
same-sex marriage (Plaintiffs’ Evidence A98 135 to 138, 140, 141, 249 through 251).
In the United States, the Supreme Court ruled in Obergefell v. Hodges in 2015 that the
failure to issue a marriage certificate to same-sex couples and the failure to recognize
same-sex marriage violated the Fourteenth Amendment to the Constitution. As a10

result, all states accepted same-sex marriage without distinction from opposite-sex
couples, and all states are obligated to recognize marriage lawfully established in otherstates (Plaintiffs’ Evidence A98, 99, 141).
15(b)Nature of same-sex marriage
In the countries mentioned in (a) above, although there is little difference between
same-sex marriage and opposite-sex marriage, the legislations differ in some places.
For example, the presumption of legitimacy does not apply in the case of same-sex
couples in Spain or male couples in the Netherlands. In addition, assisted reproductive
technology is not available to same-sex couples in France and male couples in Spain.

20

Furthermore, countries such as Canada, South Africa, Norway, and Denmark recognize
the rights of religious entities to refuse to marry same-sex couples on the basis ofreligious considerations. Moreover, the Netherlands, Belgium, and Portugal originally
did not allow same-sex couples to adopt children, but subsequently recognized suchright after amendments to laws. (Plaintiffs’ Evidence A98, 140, 141)

25

30

(5)

Trends in Japan Toward the Protection of the Rights of Sexual Minorities(i)

National policy(a)Measures to eliminate bias and discrimination based on sexual orientation
The Government has adopted the Basic Plan for Human Rights Education and Human
Rights Awareness during the Third Basic Plan for Gender Equality and the Fourth
Basic Plan for Gender Equality, in December 2010 and December 2015, respectively.
These basic plans call for awareness-raising activities aimed at eliminating
discrimination and prejudice on the grounds of sexual orientation. Treating this as one

35of the major human rights topics, the Human Rights Bureau of the Ministry of Justice14

has conducted awareness-raising activities. (Plaintiffs’ Evidence A57 to 59, 211, 212,
514 through 516, entire import of arguments)(b)

Enactment of Act on Special Measures Concerning Gender Identity Disorder
In July 2004, the Act on Special Cases in Handling Gender Status for Persons with

5

Gender Identity Disorder (“Act on Special Measures Concerning Gender Identity
Disorder”; Act No. 111 of 2003) came into force, and persons with gender identity
disorders who meet certain conditions are allowed to change their gender in theirfamily registers. In June 2008, one of such conditions for changing one’s gender was
relaxed from “the absence of a child at present” to “the absence of an underage child10

at present,” through the amendment to Article 3, Paragraph 1, Item 3 of the Act (ActNo. 70 of 2008).
(c)

Revision of the Public Housing Act and Domestic Violence Prevention Act
Article 23, Paragraph 1, Item 1 of the Public Housing Act prior to the revision by Act

15

No. 37 of 2011 required tenants of public housings to have relatives who they currently
live with or intend to live together with (including persons who have not submitted
notification of marriage but are in a de facto marital relationship or fiancés). The
revision deleted the said Item. However, some commented that the deletion was
inadvertent due to the decentralization reforms. (Plaintiffs’ Evidence A192)

20

In addition, Article 1, Paragraph 3 of the Domestic Violence Prevention Act provided
that “a spouse” subject to protection includes “a person who has not filed a notificationof marriage but is in a de facto marital relationship.” In accordance with the amendmentby Act No. 72 of 2013, the law applies mutatis mutandis to violence by a person who
is in a “relationship that shares the base of living (excluding those who do not live

25

together in a way similar to living together in a marriage relationship” (Article 28-2).
However, there are opinions that whether the law applies to same-sex couples should
be carefully examined (Plaintiffs’ Evidence A40).
30

(ii)

Efforts of political parties
In June 2019, the members of the Constitutional Democratic Party, the Japan
Communist Party, and the Social Democratic Party submitted to the House ofRepresentatives the “Outline of a Bill for the Partial Amendment to the Civil Code,”which proposed to change Article 739, Paragraph 1 of the Civil Code to “a marriage

35

shall become effective when two persons of the opposite or same sex notify of the15marriage pursuant to the provisions of the Family Register Act.” (Plaintiffs’ Evidence
A115, 116, and 509).,

5

(iii)

Measures taken by local municipalities(a)Enactment of plans and guidance
In November 2000, the Tokyo Metropolitan Government announced the Guidelines
for the Promotion of Human Rights Policies, which pointed out the necessity of further
discussing the resolutions of human rights issues concerning persons with gender
identity disorder and homosexual persons. Subsequently, several local municipalities
have established plans/guidelines regarding sexual orientation and sexual recognition

10(Plaintiffs’ Evidence A66, 67).
(b)

Enactment of ordinances
Several local governments have enacted ordinances that stipulate respect for sexual
orientation or prohibition of discrimination and in April 2015, a registered partnership

15

system was established in the Shibuya ward of Tokyo. Similar systems were later
established by other local governments and as of January 2022, 147 local governments
had a registered partnership system. Some local governments that have introduced aregistered partnership system are adopting measures to allow the mutual use of theirrespective partnership registrations (Petitioners' evidence A67 to 91, 303 to 355, 395

20

to 436, 477).
Since April 1, 2020, the Setagaya ward of Tokyo is letting ward civil servants with apartner of the same sex benefit from the same benefits as those with a partner of theother sex, such as marriage leave, maternity support leave, nursing leave, etc. Similar
efforts have been made in Tottori Prefecture. In June of the same year, Setagaya ward

25

announced that it would apply the special measures for national health adopted in
response to COVID-19 by paying a sickness and injury allowance to the bereaved
family of a same-sex partner in the event of the death of the insured person (Petitioners'
evidence A356 to 358).
30(c)Requests to the StateIn July 2018, the Association of the Mayors of Designated Cities made a request to the
Cabinet Office to issue a policy to reinforce the promotion of an understanding of
sexual minorities, in order to realize a society in which diversity is recognized and to35

take into account the examples and opinions of local governments, in particular by16

reinforcing state efforts through the establishment of a centralized organization and by
adjusting comprehensively measures adopted by each administration with regard tosexual minorities. In December 2020, the Yamato-Koriyama City Assembly and theKiyose City Assembly of Tokyo submitted written opinions requesting the Speaker ofthe House of Representatives, the Prime Minister, and the Minister of Justice to5promote discussions on same-sex marriage legislation (Petitioners' evidence A92, 93,359, 360).

10

(iv)

Suggestions and initiatives from other organizations(a)Private companies
On May 16, 2017, the Japan Business Federation for the first time put the focus on how
the business community is dealing with LGBT persons to realize diversity andinclusion in society. The Federation reported on the situation of each company's efforts,
made suggestions on how to address this issue and presented a number of initiatives byleading Japanese companies to expand welfare programs to same-sex couples by

15

applying condolence leave and family allowance to same sex couples. Further, the CSREnterprise General Survey published by Toyo Keizai Inc. reports that the number ofcompanies with a basic LGBT policy (respect for rights, prohibition of discrimination,etc.) increased from 173 (out of a total of 1325 surveyed, i.e., approximately 13%) asof January 4, 2016 to 364 (out of 1593 surveyed, i.e., approximately 22.8%) as of20

December 3, 2019 (Petitioners' evidence A94, 291, 292).
(b)

Bar associations
In July 2018, the Hokkaido Federation of Bar Associations adopted a resolution thatdemands the government and the Diet to develop a legal system that permits marriage

25

between individuals of same sex. In February 2019, the Japan In-House Lawyers
Association proposed that same-sex couples should be granted the right to marriage.
In July 2019, the Japan Federation of Bar Associations also proposed to the Ministerof Justice, the Prime Minister, and the Speaker of the House of Representatives and theHouse of Councilors to promptly amend relevant laws and regulations to allow same-30

sex marriage. Since March 2021, multiple bar associations have issued statements fromtheir chairmen calling for immediate legislation to allow marriage between individualsof same sex (Petitioners' evidence A l13, 134, 153, 154, 383 through 393).
35(c)Foreign organizations in Japan17

In September 2018, the American Chamber of Commerce in Japan issued a proposal
to the government that obstacles to recruitment and retention of human resources could
be removed and diverse employees could be fairly treated if LGBT couples were
granted the right to marry. The Australian and New Zealand Chamber of Commerce inJapan, the British Chamber of Commerce in Japan, the Canadian Chamber of5

Commerce in Japan, and the Ireland Japan Chamber of Commerce, as well as theDanish Chamber of Commerce in Japan supported this proposal (Petitioners' evidence
A112, 131 through 133).
10(d)Science Council of JapanIn September 2017, the Committee on Law of the Science Council of Japan, issued arecommendation that amending the Civil Code to make marriage neutral from a sexual
point of view was essential in light of the remarkable diversification of families inJapan and the trends in Western countries (Petitioners' evidence A1l4).

15

(6)

Surveys on same-sex marriage(i)Surveys targeting the entire population(a)Surveys until 2017
An opinion poll conducted by the Japan Association for Public Opinion Research in2014 found that 42.3% of the respondents were in favor of same-sex marriage being

20

legally recognized (in favor or somewhat in favor; the same hereinafter) and 52.4% of
the respondents against (against or somewhat against; the same hereinafter). In a survey
conducted by the Mainichi Newspapers Co., Ltd. in 2015, 44% were in favor and 39%
against. In a survey conducted by Professor Kazuya Kawaguchi of Hiroshima Shudo
University and others in the same year, 51.2% were in favor and 41.3% against. Further,25

in a survey conducted by NHK in 2017, 50.9% were in favor and 40.7% against andin a survey conducted by the Asahi Shimbun Company in the same year, 49% were infavor and 39% against (Petitioners' evidence A104 through 109).
30(b)Surveys since 2018
In a survey conducted by Dentsu Inc. in 2018 on awareness toward the legal
recognition of same-sex marriage among non-LGBT men and women in their 20s to
50s across Japan, 69.2% of men and 87.9% of women were in favor. In a survey
conducted by Professor Kawaguchi and others in 2019, 64.8% were in favor and 30.0%

35against; in a survey conducted by the Asahi Shimbun and Professor Masaki Taniguchi's
18Research Laboratory at the University of Tokyo in 2020, 46% were in favor and 23%
against; and in a survey conducted by NHK in 2021, 56.7% were in favor and 36.6%
against (Petitioners' evidence A110, 368, 441, 479).
5(ii)

Surveys targeting sexual minorities(a)

Survey in 2015
In a survey targeting sexual minorities conducted by NHK in 2015, NHK asked the
respondents if they wanted to apply for partnership registration (including if they would
like to do so once having a partner), 82.4% answered yes and 17.6% no. More thanhalf the respondents answered that they wanted to apply because "we want to be

10

recognized as a family in the future and it could be the first step in that direction". In
addition, 65.4% of the respondents agreed with the legal recognition of same-sex
marriage, and 25.3% answered that they would like the government to introduce a
registered partnership system rather than same-sex marriage (Petitioners' evidenceA103).

15(b)

Survey in 2019In a survey targeting sexual minorities conducted in 2019 by Professor Yasuharu
Hidaka of Takarazuka University School of Nursing, 60.4% of the respondents said
that they want the same legal marriage as heterosexual marriage to apply to same sex

20

relationships, and 16.2% answered that there is no need to have a public system butthat they want social understanding to become more widespread. The remaining
respondents generally answered that they want the registered partnership system to beestablished at the national or municipal level (Petitioners' evidence A369).
25(7)Surveys on opinion and statistics towards marriage(i)Surveys on opinion towards marriage(a)Surveys on opinion conducted by the Cabinet Office
In the 2005 White Paper on National Lifestyle issued by the Cabinet Office, the most

30

common response on the benefits of marriage was having a family and children (63.5%
of married respondents and 58.2% of unmarried respondents), followed by emotional
stability (response chosen by 61.9% of married respondents) and being with a loved
person (response chosen by 57.7% of unmarried respondents). On the value of "family"
most strongly felt when married, married respondents indicated first (68.3%) "a place35

for family gatherings" and second (57.3%) "a place for rest and comfort". Unmarried
19respondents indicated first (55.4%) "a place for rest and comfort", and second (54.9%)"a place for family gatherings" (Plaintiffs’ Evidence A232).
In the Survey on Marriage and Family Formation published by the Cabinet Office in2011, on the question on why people marry, 61.0% responded that it is to be together
with a loved person, 44.2% to have a family, and 32.5% to have children. Further, in5

the 2015 survey report, 70.0% of unmarried persons who were asked why they may
want to get married in the future responded that they want to have a family and children,and 68.9% responded that they wanted to marry a loved person (Plaintiffs’ Evidences
A 233, 234).
10(b)Surveys on opinion conducted by the Ministry of Health, Labor and Welfare
In the Annual Health, Labor and Welfare Report, the number of persons who agreed
with the idea that because marriage is a personal choice, both marrying and notmarrying are fine, increased from 62.7 % in 1992 to 70.9 % in 2009, while those who
disagreed decreased from 31.0 % to 28.0 % (Plaintiffs’ Evidence A 223).

15

(c)

NHK's attitudes survey
In the Japanese People Attitudes Survey conducted by NHK, the number of persons
who responded that it is normal to get married decreased from 45% in 1993 to 27% in
2018, while those who responded that it is not necessary to get married increased from

20

51% to 68%. The number of persons who responded that it is normal for a married
opposite-sex couple to have a child declined from 54% in 1993 to 33% in 2018, while
the number of persons who responded that it was not necessary for a married oppositesex couple to have a child rose from 40% in 1993 to 60% in 2018 (Petitioners' evidenceA228).

25(d)

Attitudes survey conducted by the National Institute of Population and Social
Security Research
In the National Survey on Family conducted by the National Institute of Population

30

and Social Security Research ("IPSS"), the number of married women in favor of theidea that a married couple becomes socially recognized only when it bears a childdecreased from 35.8% in 2008 to 24.7% in 2018, while the number of married women
against the idea decreased from 64.2% to 75.4% in the same period. (Petitioners'
evidence A229).

35

In the survey conducted by IPSS in 2015, 85.7% of unmarried men and 89.3% of20unmarried women (in each case aged 18 to 34; the same applies hereinafter) answeredthat they intended to marry in due course; 64.7% of men and 58.2% of women werein favor of the idea that remaining single for life is not a desirable way of living and32.8% of men and 40.2% of women disagreed. In addition, the general trend since1987 has been that around 60% to 70% of unmarried men and around 70% to 80% of

5unmarried women feel that there are advantages to being married. As of 2015, the top
response on the specific advantage of marriage among both men and women (35.8%
of males and 49.8% of females) was to have their own children or families, and thesecond response (31.1% of males and 28.1% of females) was that it provides a place
for mental comfort. Asked for the reason why people have children, 48.4 % of

10

unmarried men and 39.0% of unmarried women responded that getting married andhaving children are just natural. Further, 75.4% of unmarried men, 67.4% of
unmarried women and 66.6% of married women responded that those who get marriedshould have children (Petitioners' evidence A 226, 230).
15

(ii)

Statistics on marriage(a)Number of marriages and marriage rate
A survey of the Ministry of Health, Labor and Welfare showed that the number ofmarriages reached 620,531 in 2008 although the number has been declining since apeak of 1.1 million marriage was reached in 1972. The marriage rate (calculated by20

dividing the total number of marriages by the total population and multiplied by 1000)
still exceeded the rates in European countries (excluding Russia and Sweden), although
it decreased from approximately 12% in 1947 to 5% in 2016. Statistical data (1920 to2017) showed that the percentage of children born out of wedlock to the total annual
number of births in Japan was at its peak (8.25%) in 1919, at its lowest (0.78%) in 1976

25

and was 2.23% in 2017 (Petitioners' evidence A224, 227-3).
The percentage of persons having reached the age of 50 without ever having married
was 23.4% for male and 14.1% for female in 2015 (Petitioners' evidence A226).
30(b)

Status of households
A survey by the Ministry of Health, Labor and Welfare showed that the proportion of
single households in the total number of all households rose from 18.2% in 1986 to
27.7% in 2018 and that the share of households with a married couple living withoutchildren also rose from 14.4% in 1986 to 24.1% in 2018. On the other hand, the share

35

of households with a married couple living with unmarried children decreased from21

41.4% in 1986 to 29.1% in 2018 (Petitioners' evidence A225).
2

Whether the provisions violate Article 24, and Article 14.1 of the Constitution(Issue 1)

5(1)

The Petitioners argue that Article 24.1 of the Constitution guarantees the freedom ofmarriage, i.e., the freedom to marry only by consent of the two persons who wish to
marry, without interference from the state or a third party and that said freedom ofmarriage assumes the existence of a legal marriage system which provides protection,
approval and public authentication by stipulating legal requirements and effects toperpetual cohabitation based on intimate relationship with another person. The

10Petitioners argue that such freedom of marriage should be extended to same-sex
couples, and the provisions which do not permit marriage between individuals of thesame sex impair their personal dignity. Because such impairment of personal dignity
cannot be found reasonable or necessary, the provisions also violate Article 24.2 of theConstitution. The Petitioners further argue that, even if the right and interest to seek

15

marriage between individuals of the same sex is not guaranteed by said articles, theright to enjoy the legal benefits arising from marriage is a significant legal interest
which cannot be unreasonably discriminated due to sexual orientation or gender
without this violating Article 14.1 of the Constitution.
On February 3, 2019, the Petitioners submitted a marriage notification which was

20

refused on the 7th (Undisputed Fact (2)) but the Petitioners have also presented facts
on the increase in social demand to admit same-sex marriage which take place after
said date and said facts are interpreted as an argument on the illegality of the present
situation where same-sex marriage is not recognized. The Petitioners can re-submit amarriage notification but it should be assumed that in the present situation said

25

submission would not be accepted. Therefore, considering that an appeal trial is also a
trial on facts, it is appropriate to render a judgment on the constitutionality of theprovisions based on circumstances up to the conclusion of the oral proceedings in this
case.
30

(2)

Whether the provisions violate Article 24.1 of the Constitution(i)

Article 24.1 of the Constitution provides that "marriage shall be based only on themutual consent of both sexes and it shall be maintained through mutual cooperation
with the equal rights of husband and wife as a basis". This article is interpreted as a

35

clarification that the decision to marry and the decision when and whom to marry22

should be made freely and equally by the parties. The freedom of marriage, as
mentioned above, deserves full respect in light of the purposes of Article 24.1 of theConstitution, considering that marital status grants important legal effects, such as
spousal inheritance rights (Article 890 of the Civil Code) and the legitimation ofchildren of spouses (Article 772.1, et al.), and that respect for legal marriage is

5widespread among Japanese nationals, even though public awareness toward families
has diversified in recent years. Article 24.2 provides that "with regard to choice of
spouse, property rights, inheritance, choice of domicile, divorce and other matterspertaining to marriage and the family, laws shall be enacted from the standpoint of
individual dignity and the essential equality of the sexes". Matters concerning marriage

10

and family should be determined by making judgments that comprehensively take into
account various social factors, including national traditions and public sentiment, andshould focus on the overall rules of marital and parental relationships in each period. It
is therefore for details to be decided by law rather than being defined uniformly by theConstitution. From this point of view, Article 24.2 delegates the establishment of

15

specific institutions on matters regarding marriage and family first to the reasonablelegislative discretion of the Diet but said Article, based on the premises of Article 24.1,
also sets out limits to said discretion by stipulating guidelines and the requirement of
the dignity of individuals and the essential equality of the two sexes (See Case No.
(O)1079 of 2013, judgment of the Grand Bench of the Supreme Court of December

20

16, 2015, Minshu Vol. 69, No. 8, at 2427 ("Remarriage Prohibition Period Grand
Bench Judgment"), Case No. (O) 1023 of 2014, judgment of the Grand Bench of theSupreme Court of December 16, 2015, Minshu Vol. 6, No. 8, at 2586 ("Married
Couples Last Name System Grand Bench Judgment").).
Consequently, “marriage” used in Paragraph 1 of the same article should be embodied

25

in the marriage system under the Civil Code, the Family Register Act and other laws
through Paragraph 2 of the same article, and it is appropriate to examine whether or
not the freedom to marry also extends to same-sex couples from the perspective thatthe legal marriage system that is embodied by law is required to extend to same-sex
couples in light of the purpose of Paragraph 1 of the same article. The Plaintiffs are not30

disputing the substance of the existing legal marriage system that is embodied by law,
but they are rather disputing the applicable scope of the legal marriage system, namely,
the applicability of the system to same-sex couples.
35

(ii)

In this respect, Article 24, Paragraph 1 of the Constitution provides that marriage shall23

be based only on the mutual consent of “both sexes” and refers to a married couple as“husband and wife,” and the term “both sexes” is also used in Paragraph 2 of the same
article. Further, the terms “both sexes” and “husband and wife” are usually used to refer
to both men and women, and there are no cases, either in the Constitution or in otherlaws and regulations, in which these terms are used to also include same-sex couples.

5

In addition, marriage was created as a system to regulate unions between men andwomen in order to preserve the species. The marriage system has been traditionallyregarded as existing to recognize a legitimate union between a man and a woman(Findings of Fact (2)(i)). In Japan, a uniform legal marriage system was enforced forthe first time under the Meiji Civil Code, under which marriage was regarded as a legal

10

union of a man and a woman for the purpose of life-long cohabitation (Findings ofFact (2)(ii)(a)), and marriage of same-sex couples was viewed as invalid as a matter ofcourse (Findings of Fact (2)(ii)(b)). Further, there is no indication that, during thedrafting process of Article 24 of the Constitution, there was any discussion on whether
marriage covers a union of same-sex individuals (Findings of Fact (2)(iii)(b)). The

15

term “both sexes” was used in the GHQ’s draft, and the term “both man and woman”
was also used in Japan’s draft (Findings of Fact (2)(iii)(a)). There is also no indication
that, during the process of amending the Civil Code in 1947 to meet the requirementsof Article 24 of the Constitution, there was a discussion on whether a union of samesex individuals is covered by marriage (Findings of Fact (2)(iv)(b)).

20

According to the abovementioned wording of Article 24 of the Constitution and thehistory of its enactment, and having regard to the purpose of Paragraph 1, it is difficult
to conclude that the legal marriage system (as embodied in the Civil Code, Family
Register Act and other laws) required application to same-sex couples, at least as at thetime Article 24 was enacted.

25

(iii)

In response, the Plaintiffs allege that, in light of the purpose of Article 24, Paragraph 1of the Constitution, even if (at the time Article 24 was enacted) the legal marriage
system (as embodied in laws such as the Civil Code and Family Register Act) did not30

require application be extended to same-sex couples, a social consciousness that aunion of same sex individuals is also covered by “marriage” has been created as a resultof subsequent changes in the social situation, and that it is now requested to extend thelegal marriage system to same-sex couples.
Certainly, Article 23 of the GHQ’s draft provides that “[m]arriage is ... founded upon

35

mutual consent instead of parental coercion, and maintained through cooperation
24

instead of male domination. Laws contrary to these principles shall be abolished…”(Findings of Fact (2)(iii)(a)), and Article 24, Paragraph 1 of the Constitution provides
that “marriage shall be based only on the mutual consent of both sexes.” In theserespects, as the Imperial Diet explained during review and discussion that it intended
that marriage be solely based on the mutual consent of both sexes, eliminating the5requirement of the consent of the head of the household (koshu) or an individual’s
parents for marriage of a child under a certain age under the Meiji Civil Code (Findingsof Fact (2)(iii)(b)), it is concluded that this Article was incorporated mainly because
the dignity of individuals and the essential equality of the sexes, which are the basic
principles of democracy, particularly needed to be established with respect to family

10life such as marriage, including changing the feudal family system (ie seido) andabolishing the right of refusal of the head of household. Further, considering the factthat there is no indication that there was a discussion on whether a union of same-sex
couples is covered by “marriage” (Findings of Fact (2)(iii)(b)), it cannot be construed
to prohibit extension of the existing legal marriage system to same-sex couples in light15of the purpose of Article 24, Paragraph 1.
Considering that foreign countries have recently adopted same-sex marriage systems(Findings of Fact (4)(iii)(a)), that local governments in Japan have also introduced
registered partnership systems (Findings of Fact (5)(iii)(b)), and that there are calls forthe legislation of same-sex marriage from various organizations (Findings of Fact

20(5)(iv)), it is still necessary to examine whether the understanding at the time ofenactment is still regarded as appropriate.
(iv)

However, as mentioned in (i) above, matters concerning marriage and family should
be judged and determined in a comprehensive manner with due consideration of25

various social factors such as national traditions and public sentiment, and the overall
disciplines that govern marital and parent-child relationships in each historical era.
Therefore, “marriage” in Article 24, Paragraph 1 must be examined based on the factthat it is a legal marriage system embodied by law through Paragraph 2 of the same
article.

30(v)

As mentioned in (ii) above, marriage was born as a system that regulates unions
between men and women to preserve the species. Marriage has traditionally been
regarded as existing to recognize a legitimate union between a man and a woman, but

35

the form of marriage system has varied from time to time and from region to region25depending on the economic, political or moral philosophy of society. It has been
regarded as forming, as a living community of a man and a woman, the core of thefamily through the protection and nurturing of children born between them, and themaintenance of a living community based on a division of labor (Findings of Fact
(2)(i)).

5

According to statistical data (1920-2017), the ratio of illegitimate children to the total
annual births in Japan was at its highest at 8.25% in 1919, at its lowest at 0.78% in
1976, and at 2.23% even in 2017 (Findings of Fact (7)(ii)(a)). Considering this, it isdifficult to deny the fact that the legal marriage system, functioning as the core of thefamily referred to above, has played an important and indispensable role in Japanese10

society, in which men and women live together, and leave descendants by giving birth
to and raising children. Further, though it is pointed out that public awareness forfamilies and the like has diversified in recent years, even in 2015, 70% of respondents
answered that they wanted to get married to have a child, and more than 60% said thatthose who have gotten married should have a child (Findings of Fact (7)(i)(a)(d)),

15which shows that there are still a not insignificant number of people who find themeaning of marriage in giving birth to and raising children.
As described above, marriage has played an important and indispensable role in the
lives of a man and a woman who live together and leave descendants by giving birth
to and raising children. In light of the fact that there are still a not insignificant number

20of people who find the meaning of marriage in giving birth to and raising children, it
is difficult to see that the marriage system has completely separated from the capacity
for natural reproduction, though it is a fact that same-sex marriage systems have been
introduced in other countries and that there is also a growing demand for legislation ofsame-sex marriage in Japan.

25

(vi)

In addition, according to several opinion surveys conducted by news media and otherorganizations since 2018, while the majority have been in favor of legally recognizing
same-sex marriage, some 20% to 30% were still against the idea (Findings of Fact

30

(6)(i)(b)). This indicates that a not insignificant number of people still have objections.
In the past, there was a considerable period of time when homosexuality wasconsidered to be a mental disorder by psychologists (Findings of Fact (1)(ii)(a) and(1)(iii)(a)), and even after this was revised (Findings of Fact (1)(ii)(b) and (1)(iii)(b)),
such thinking may remain to some extent among some people, which affects the35

formation of the opinions referred to above. However, it is also surmised that these26

survey results reflect the traditional view of family that a man and a woman live
together and leave descendants by giving birth to and raising children. It cannot beignored that there are a certain number of those who oppose same-sex marriage.
5

(vii)

Next, looking at the rules of the existing legal marriage system as embodied by law,
the Civil Code sets rules about establishment and dissolution of familial relationships
to give rise to various rights and obligations associated with marriage, providing: thata marriage becomes valid when applying for marriage registration pursuant to the
Family Register Act (Article 739, Paragraph 1); with respect to the legal effect of

10

marriage, the use of the same surname (Article 750) and obligations to live together,cooperate and provide assistance (Article 752); with respect to joint property, thesharing of living expenses (Article 760) and presumption of co-ownership (Article 762,
Paragraph 2); with respect to the dissolution of marriage, a divorce system such as
division of property (Article 768) and judicial divorce (Article 770); with respect to the15parent-child relationship, a presumption of a child’s legitimacy (Article 772, Paragraph1), parental authority (Article 818, Paragraph 3), adoption of a minor by a spouse(Article 795) and joint adoption by a married couple through a special adoption (Article
817-3); with respect to relatives, affinity of up to the third degree (Article 725, Item 3)
and a duty of support between relatives of such affinity (Article 877, Paragraph 2); and20

with respect to inheritance between spouses, a right of inheritance (Article 890),
intestate shares (Article 900), a right of residence (Article 1028), a right of short-term
residence (Article 1037) and statutory reserved shares (Article 1042). The Family
Register Act legitimizes familial relationships, providing: the creation of a new family
register upon notification of marriage (Article 16); entry of a child or a adopted child25

into his/her parents’ or adopted parents’ family register (Article 18); statement in a
family register that a person is another’s husband or wife (Article 13, Item 6); statement
in a family register of the names of a child’s birth or adopted parents and his/her
relationship with those parents (Items 4 and 5 of the same article); retention of originals
and duplicate copies of family registers by city offices, legal affairs bureaus and the30

like (Article 8); and procedure for applying for a transcript of a family register or acertificate of registered matters (Article 10 and thereafter). The legal effects of marriage
include, in addition to those prescribed in the Civil Code referred to above, many othereffects granted based on various social policy decisions, such as tax- and social
security-related systems.

27

These provisions include the presumption of a child’s legitimacy (Article 772 of the
Civil Code), and the Civil Code established a system for quickly determining therelationship between a father and a child who is born between a man and a woman ina marital relationship, so as to stabilize family life. It does this by, for instance,
5

restricting the means of rebutting the presumption that a child is legitimate (Article775), restricting the statutory limitation period (Article 777), and setting a period during
which remarriage is prohibited (Article 733). Given the existence of these provisions
in establishing the legal marriage system, it is considered that at least one of the Civil
Code’s purposes is to stabilize the union between a man and a woman with10

reproduction of descendants and family relationships based thereon. Further, theprovisions prohibiting remarriage for a set period (Articles 733 and 746) were amended
after a 2015 judgment of the Grand Bench of the Supreme Court ruling them to beunconstitutional. In making that judgment, however, the Court presupposed theexistence of a set of provisions concerning the presumption of a child’s legitimacy,

15

meaning that such provisions have therefore yet to lose their value. It is also noted that,in Japan, since the days of the former Civil Code, the inability to reproduce has neverbeen considered as a cause for impediment to marriage, and should not be regarded as
an obstacle to the above evaluation. That is to say, according to professional opinions
given in the course of drafting the former Civil Code, the reason why an inability to20

reproduce was not such an impediment was simply that the ability to reproduce was
not considered to be an absolutely essential condition for marriage (Findings of Fact
(2)(ii)(b)), notwithstanding that one of the purposes of marriage includes reproduction.
In addition, also under other provisions, various legal effects of marriage are expected
to be brought about in an integrated fashion, which include not only those bringing

25

about rights and obligations formed only between the parties, such as the duty to live
together, cooperate and provide assistance, but also those affecting the status, rights
and obligations of third parties, such as rules of parent-child relationships including the
adoption system and the occurrence of kinship, as well as matters related to rights andobligations granted by various social policy decisions. If this is so, then to expand the30

scope of personal unions currently covered by the legal marriage system is not simply
a question of how to regulate issues between the married parties themselves; it would
further concern the third parties directly affected by this and potentially be an
opportunity to reconsider the entire system altogether, which has until now been built
upon the premise that marriage is between persons of the opposite sex. This would

28

have wide-ranging effects on society and an inevitable impact on the framework of theentire existing legal marriage system.
(viii)

Further, opening up the existing legal marriage system is not necessarily the only way
to establish an appropriate system of protection for same-sex couples incapable of5natural reproduction. It would be possible, as a matter of legislative policy, to separately
establish special rules for such couples.
For example, even in countries in which same-sex marriage is accepted, there are cases
where a partnership system or similar is first introduced, which then either changes intoa same-sex marriage system later or continues to co-exist with the same-sex marriage

10

system (Findings of Fact (4)(iii)(b)). In Italy, the marriage system does not currently
apply to same-sex couples, and “rules providing for a civil union between same-sex
couples and the regulation of their cohabitation” were instead established to offer
protection in a form other than marriage (Findings of Fact (4)(ii)(c)). In countries
where same-sex marriage is accepted, there are examples of legislation which treats15

same-sex and opposite-sex couples differently with respect to the presumption of achild’s legitimacy and assisted reproduction technologies (Spain, Netherlands andFrance). There are also examples of legislation giving religious figures the right torefuse wedding services to same-sex couples (Denmark, Canada, South Africa,
Norway, among others), and legislation imposing a staged process for adopting a child

20(Netherlands, Belgium and Portugal) (Findings of Fact (4)(iii)(b)). The details of themarriage system may vary depending on each country’s traditions and religious
background, and the legislative examples of other countries are not always
immediately applicable to the marriage system in Japan. However, the various
legislative measures taken in each country support the fact that expanding the existing

25

legal marriage system to same-sex couples is not the only way to offer protection.
(ix)

It can certainly be said that public awareness is shifting to support for same-sex
marriage, and that it is not prohibited to extend the existing legal marriage system to30same-sex couples in light of the purpose of Article 24, Paragraph 1 of the Constitution.
However, as detailed in (v) and (vii) above, the marriage system has traditionally been
based on unions between men and women, and in understanding the purpose of themarriage system, the system cannot still be said to be completely separated from thecapacity for natural reproduction (see (v) above). Further, there is still a certain

35

percentage of people who emphasize the traditional system and values (see (vi) above),29and expanding the applicable scope of the existing legal marriage system embodied bylaw may have an impact on people other than couples who are party to the marriage
and those otherwise subject to the existing marriage system (see (vii) above). It istherefore difficult to say that, despite these circumstances, the Constitution now
primarily demands that the existing legal marriage system extend to same-sex couples

5

and excludes the possibility of some other method for protecting such couples.
(x)

The Plaintiffs allege that Article 24, Paragraph 1 of the Constitution does not intend tooffer a separate form of protection, since as a result of establishing special rules
separately from the existing legal marriage system to protect a union between same-10

sex individuals, same-sex couples and opposite-sex couples would be treateddifferently.
However, putting aside the individual characteristics of each person, it is difficult todeny that the ability to naturally reproduce is a point of distinction between the generalcategories of same-sex and opposite-sex couples. As mentioned in (v) above, it cannot

15

be ignored that in Japan, marriage has played an important and indispensable role in
the lives of men and women who live together and who leave descendants by giving
birth to and raising children, and that there are still a not insignificant number of people
who find this to be the meaning of marriage. It cannot therefore be concluded that theConstitution absolutely prohibits distinction on this basis such that extending the legal

20

marriage system to same-sex couples is the only option. One would expect there arestill issues worth examining, such as whether to make the existing legal marriage
system fully coincide with the resulting effect, whether to establish special separate
rules and allow for differences upon scrutinizing each effect generated, and what thesystem should be called where some difference is allowed (whether it is referred to as

25

marriage or not). Even if special rules are established by law, the social situation as
well as the awareness of the entire people including same-sex couples will change overtime depending on the outcome thereof and thereafter, and a law once enacted should
not necessarily be regarded as the only absolute one; it should be continuously
examined and might be expected to be considered with a view to future amendments.

30

(xi)

Accordingly, it is still difficult at this point to conclude that extending the existing legal
marriage system to same-sex couples is required in light of the purpose of Article 24,
Paragraph 1 of the Constitution. Therefore, the freedom of marriage is not deemed to35extend to same-sex couples, and the Provisions, which do not allow same-sex marriage,
30

cannot be said to violate Article 24, Paragraph 1.
(3)

Whether the Provisions violate Article 24, Paragraph 2 of the Constitution(i)

As described in (2) above, in light of the purpose of Article 24, Paragraph 1 of theConstitution, it is neither prohibited nor required to extend the existing legal marriage

5

system to same-sex couples. Paragraph 2 can be viewed as a provision entrusting theimplementation of this legal marriage system to the Diet’s reasonable legislative
discretion on the basis of Paragraph 1, and providing the requirements and guidelines
for achieving this. It is therefore consistent with Paragraph 1 to conclude that Paragraph2 does not require that the existing legal marriage system apply to same-sex couples,10

and that the Provisions do not violate Paragraph 2 by refusing to allow such application.
(ii)

By the way, the Plaintiffs argue that the right to enjoy various legal interests arisingfrom marriage is a serious legal interest, even if the rights and interests to seek marriage

15

between the individuals of the same sex are not within the scope guaranteed by Article
24 of the Constitution, and that this is a violation of Article 14, Paragraph 1 of theConstitution if they are unreasonably discriminated against due to sexual orientation orgender. The court understands that the Plaintiffs argue it is a violation of grave legal
interests that they are not guaranteed the right to enjoy various legal interests arising20

from marriage, and that it does not mean to deny that this should be considered inrelation to Article 24 of the Constitution. In particular, in cases where the equality of
the legal system concerning families is a problem, even if how to understand therelationship between Article 14, Paragraph 1 and Article 24, Paragraph 2 of theConstitution is a matter of divergent views, it cannot be denied that there is a overlap

25

between the legal interests that the two clauses attempted to protect, and therefore theunconstitutionality of the inability to enjoy the grave legal interests claimed by the
Plaintiffs can also be a problem under Article 24, Paragraph 2 of the Constitution.
The outline of the current legal marriage system embodied by the law is as shown in(2)(vii) above, which establishes the status relationship between the parties and their30

relatives, notarizes the status relationship by the family register system, and createsvarious rights and obligations between the parties and other third parties by law under
the Civil Code and other laws. In addition, marriage is not limited to such legal effects,
but as factual effects, the use of the marriage system produces not only social effects
such as the formation of social trust and the gaining of confidence, but also the35

psychological effects of being in such a position. Opposite-sex couples can enjoy,
31

under the legal marriage system, a variety of legal and factual effects together, by
meeting the prescribed requirements.
On the other hand, because the Provisions do not allow same-sex couples to use thelegal marriage system and there are no other laws or provisions that allow same-sex
couples to use the legal marriage system, same-sex couples are unable to enjoy various

5

legal and factual effects under the legal system, and there is a significant divergence
between same-sex couples and opposite-sex couples. Other than having no possibilityof natural reproduction, same-sex couples have no difference from opposite-sex
couples in that they can live together with a lasting relationship based on intimacy (thePlaintiffs themselves, the entire import of oral arguments), and according to the10knowledge of the current medical psychology, it is said that sexual orientation andgender identity are determined in most cases in the early stage of life or before birthand cannot changed by their own intention or psychiatric therapy (Findings of fact(1)(i)) and it is necessary to examine whether the fact that same-sex couples are placedin the above-mentioned state is constitutionally endorsed or not.

15

In addition to marriage, Article 24, Paragraph 2 of the Constitution calls for theenactment of legislative based on individual dignity and the essential equality of thesexes with regard to “families.” The concept of family is neither defined in theConstitution nor in the Civil Code, and its outer edge is not clear, and it is ambiguous
in terms of socially accepted ideas. As mentioned above, even in same-sex couples,

20

since it is no different from the opposite-sex couples in that they can form a living
community with a lasting nature based on close relationships, it should be sufficiently
possible to consider the relationship between same-sex couples as a matter of family.
The said paragraph uses the phrase “the essential equality of the sexes” However, withregard to the issue of the family, for example, if the pros and cons of the revival of the25

system of inheritance of the head of the family are taken into consideration, equality
not only between the two sexes but also between two of the same sex can be a problem,
and it can be construed that the said paragraph can be understood to be regulated,
including the issue of the family in which both sexes are not necessarily involved,
without the need to read the words as “both parties.”

30

In the following, the Court will examine whether the fact that same-sex couples are in
the above-mentioned state violates Article 24, Paragraph 2 of the Constitution as amatter regarding “family.”
35

(iii)

As seen in (2)(i) above, Article 24, Paragraph 2 of the Constitution stipulates that “with32regard to the choice of spouse, property rights, inheritance, choice of domicile, divorce
and other matters pertaining to marriage and the family, laws shall be enacted from thestandpoint of individual dignity and the essential equality of the sexes.”
As matters concerning marriage and family are embodied in the relevant legal systems,5

the designing of such legal system has important implications. In this context, it can besaid that Article 24, Paragraph 2 of the Constitution primarily entrusts the Diet with thereasonable legislative discretion to establish a specific system and defines the limitationof its discretion with a demand and provides guidelines that the legislation should bebased on individual dignity and the essential equality of the sexes, based on Paragraph10

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 andguidelines do not merely require that legislation should not infringe on the personal

15

rights guaranteed as constitutional rights, and it is not sufficient that legislation that
secures the formal equality of both sexes is enacted. Therefore, that article calls for theenactment of legislation with due consideration to respect personal interests, which
may not be directly guaranteed under the Constitution, to ensure the substantial
equality of both sexes, and to avoid factual unreasonable prohibition of marriage due

20

to structure of the marriage system. In this respect, the guidelines provided to thelegislature are limited.
On the other hand, matters concerning marriage and family should be determined by acomprehensive judgement of the overall norms of the marital and parent-childrelationship in each historical era, taking into account various factors in society,25

including national traditions and national sentiments. In particular, personal interestsand substantial equality that cannot be considered to be directly guaranteed under theConstitution can be diverse in their content, and their realization should be determinedin relation to social circumstances, the living conditions of people and thecircumstances surrounding family life at the relevant times.

30

In such case, as discussed above, considering that the decision and determination ofwhat legislative measures should be established, responding to the demand andguideline of Article 24 of the Constitution, are entrusted to the consideration andjudgement of the Diet, whether or not the provisions of the law which provide for thelegal system concerning marriage and family conform with Article 24 of the35

Constitution, and whether or not the provisions are unreasonable in light of the33requirements of individual dignity and essential equality of the sexes and are beyond
the scope of the Diet's legislative discretion, should be judged from the viewpoint of
examining the purpose of the legal system and the impact of adopting the system(Grand Bench Judgment on the Same Last Name System of Husband and Wife).
5(iv)

As mentioned in (iii) above, Article 24, Paragraph 2 of the Constitution calls for theenactment of legislation with due consideration to respect also such personal intereststhat cannot be deemed as rights directly guaranteed under the Constitution as well.
As mentioned in (2)(i) above, Paragraph 1 of the said article is interpreted as a

10clarification that the decision on whether to marry, when to marry, and whom to marryshould be left to the parties who will be married and based on the principles of free will
and equality, and freedom to marry in this way deserves full respect in the light of theintent of the said paragraph. (See the Grand Bench Judgment on the Period ofProhibition of Remarriage.)

15

The freedom to marry as mentioned above is construed to be the freedom to use thelegal marriage system embodied by the law through Paragraph 2 of Article 24. The
reason why the freedom to use such system should be fully respected is that the essenceof marriage is that in which both parties live a communal life with a sincere intentionof lasting mental and physical union, and the legal marriage system recognizes this20

essence as important value, and attempted to embody, realize and protect this essential
value. This essential human activity is thought to have arisen spontaneously in history
even before the legal marriage system was established. Therefore, it can be said thatthe value, based on which the freedom to use the legal marriage system is construed todeserve full respect, is derived from human dignity and is an important personal interest.

25

As described above, the legal marriage system, which was institutionalized to realize
such important personal interest, creates a family relationship between the parties tothe marriage, publicly certifies such relationship, and grants a variety of legal benefits
suitable to protect it on the condition that parties are in such relationship, and also
confers various factual benefits. In light of the fact that human beings are social beings

30

and social approval is indispensable for their personal survival, it is especially
important among the above-mentioned various benefits and indispensable that therelationship being approved socially as legitimate in order for the parties to live a stable
and lasting communal life. That should be the reason that the legal marriage system istied to a system that publicly approves, notifies and certifies the family relationship, as

35

well as it has a function to grants various benefits.
34

If this is the case, it can be construed that, in order to realize the important personal
interest of living together with a sincere intention of lasting mental and physical union,
the interest to be provided with the framework in which the relationship is publicly
certified as legitimate and the parties are able to receive benefits suitable for protecting
their relationship is extremely important, and merely not preventing the parties from5living together should be considered insufficient. Such social approval can be given byvarious means, and there were various forms and customs in history. In light of the factthat in Japan, the nationally unified and uniform family register system has been longin place at national level, and that there is still a widespread sense of respect for legal
marriage among the public, it can be understood that public certification through a10

unified system run by the State is an effective means to obtain social approval as alegitimate relationship.
It is construed that the interest to be provided with the framework in which therelationship between the parties are publicly certified by a national system and thesuitable benefits to protect their relationship is granted is an important personal interest

15

to be respected pursuant to Article 24, Paragraph 2 of the Constitution.
However, same-sex couples do not enjoy such important personal interest under thecurrent the system.
20(v)

As mentioned in (iii) above, in order to examine the conformity with Article 24 of theConstitution, it is necessary to examine the import of the current legal system on“family” embodied in the Provisions.
As we have seen, the family has historically been regarded to play a central role inprotecting and nurturing children born between men and women through their joint

25

relationship (marriage). Even at the time of the enactment of the Provisions, thistraditional view of the family was dominant. In light of the social situation that
followed, the possibility of natural reproduction is still not completely separated fromthe understanding of the marriage system. Considering that a certain proportion of thepeople put an emphasis on the traditional view of the family, it is rational to establish a30

framework for notarizing and protecting a community of life of men and women by alegal marriage system.
However, it can be construed that the essence of marriage is to live a communal life
with sincere intention of permanent mental and physical union. Even in the drafting
process of the Old Civil Code when the traditional view of the family was dominant, it

35

had been understood that the harmony of the minds was the nature of marriage, and35

the inability to reproduce was not listed as an obstacle to marriage (Findings of fact(2)(ii)(b)). As such, it was understood that the significance of marriage was not merelyin reproduction and the protection and nurturing of children, but to establish apermanent community based on intimate relationships had an extremely important5

significance for fulfillment of life. And it should be possible for same-sex couples toform such a community on the basis of such close relationships.
In recent years, the diversification of families has been pointed out. The ratio of single
households in the total number of households rose from 18.2% in 1986 to 27.7% as ofthe end of 1998. The ratio of couple-only households also rose from 14.4% in 1986 to

10

24.1%. On the other hand, the share of households with married couples withunmarried child(ren) declined from 41.4% in 1986 to 29.1% (Findings of fact(7)(ii)(b)), indicating that the traditional view of the family to protect and nurturechildren born from unions between men and women is no longer absolute.
In addition, it is acknowledged that the view that homosexuality is a psychopathology

15

was denied in the latter half of the 20th century, and that the view that sexual orientation
itself is not a disorder was established (Findings of fact (1)(ii)(b)).
Furthermore, according to the Findings of fact (3) above, various internationalorganizations have been engaged in activities to protect the rights of sexual minorities
since the latter half of the 20th century. Among these activities were to confer the right20

to receive the survivor’s benefits granted to opposite-sex couples to same-sex couples(Findings of fact (3)(i)(a) and (b)), as well as recommendations to legally recognize
same-sex couples and their children and to grant legal interests accorded to same-sex
couples without discrimination (Findings of fact (3)(ii)(a)), and declaration that they
have the right to form a family regardless of sexual orientation and gender identity

25(Findings of fact (3)(iii)).
In addition, after the introduction of the Registered Partnership System by Denmark in
1989, a system to notarize same-sex couples (Registered Partnership System, Etc.) was
introduced in various countries around the world (Findings of fact (4)(a)(b)), and in
2000, the Netherlands introduced the same-sex marriage system for the first time in the30

world, and 28 countries have introduced the same-sex marriage system as far as can be
confirmed by evidence (Findings of fact (4)(iii)).
In Japan, too, the need to solve human rights issues related to homosexual people has
been pointed out since around 2000 (Findings of fact (5)(iii)(a)). In April 2015, a
registered partnership system was introduced for the first time by a local government.

35

As of January 2022, 147 municipalities had introduced this system, and since April
36

2020, some local governments have begun to make efforts to grant marriage leave toward officials with same-sex partners (Findings of fact (5)(iii)(b)).
In addition, at the national level, following recommendations received fromconvention bodies of the United Nations since 2008 (Findings of Fact (3)(i)(c) and(ii)(b)), since 20021, awareness campaigns aimed at abolishing prejudice against sexual

5

minorities were undertaken (Findings of Fact (5)(i)(a)) and a law allowing a change in
gender status in the family register for persons with gender identity disorder wasenacted (Findings of Fact (5)(i)(b)). Furthermore, in 2017, recommendations weremade by certain foreign countries regarding the expansion of the official recognitionof same-sex marriage to the national level and other measures (Findings of Fact

10(3)(ii)(b)), and since then, local governments and various organizations have issued
statements calling for marriage between same-sex individuals (Findings of Fact
(5)(iii)(c) and (iv)(d)).
As mentioned above, efforts towards the legal protection of same-sex couples haveincreased worldwide, and in our country, in addition to the establishment of a

15

Registered Partnership System by many local governments and rising calls for theenactment of legislation at the national level, some private companies have also
undertaken efforts to provide same-sex couples with family allowances, etc. (Findingsof Fact (5)(iv)(a)). Furthermore, since 2018, public surveys on the legal acceptance ofsame-sex marriage have shown that the number of those in favor exceeded those in

20

opposition, including survey results where those in favor reached approximately 65%
and, in a survey targeting a relatively young generation in their 20s through 50s, where
70% of male respondents and just under 90% of female respondents were among thosein favor (Findings of Fact (6)(i)(b)).
Based on the foregoing, the traditional view of the family with the personal union

25

between a man and a woman at its core is no longer the single absolute view as a formof a family, and along with the rejection of the perception that homosexuality is a
psychopathological condition, the establishment of concrete protections for same-sex
couples has been realized on a global scale and, even in our country, it can be said thatthe understanding of same-sex couples has progressed and the trend towards approval

30

thereof has accelerated. Accordingly, even if the current legal marriage system underthe existing legal framework regarding families may, by itself, appear reasonable, as a
1

Translator’s note: We have preserved the substance of the original Japanese, although this “平成 14 年以降” is likely to be a typo or misplaced (as it is not consistent with the lead-in, “2008 年以降”.
37

result of the change in understanding of values which must be emphasized inconnection therewith, there exist doubts that those who are able to enjoy its benefit has
become limited in scope and as a result, it must be noted that the large disparity causedby the removal of homosexual persons from the legal marriage system and the lack ofany measures addressing this disparity has called such reasonableness into question,

5and we view this situation as one that can no longer be ignored.
(vi)

As mentioned in (iii) above, in order to examine the compliance with Article 24 of theConstitution, it is also necessary to examine the effect of the adoption of the current

10

legal marriage system embodied in the Provisions.
Compared to opposite-sex couples, homosexual couples face disparities due to the lackof access to a framework in which the relationship of the individuals is certified by anational system and which affords appropriate benefits to protect that relationship.
Further, the value of being able to use such a framework is not only derived from the15value conferred by law, but also from the material moral interest based on humandignity. For same-sex couples seeking to live communally with an honest intention ofa permanent mental and physical union, the disadvantage suffered as a result of not
being conferred the individual legal effects associated with marriage and the lack ofaccess to a framework in which their relationship is certified by a national system and20

which affords appropriate benefits to protect that relationship is significant. This is
supported by survey results showing that, among sexual minorities who were asked
why they wished to apply for a marriage-equivalent certificate, more than half of all
respondents responded “as a first step to be legally recognized as a family” (Findingsof Fact (6)(ii)(a)).

25

It is true that, even for same-sex couples, as in the case of the Plaintiffs, it is possible toobtain, to a certain degree, the same effect as in the case of opposite-sex couples
through legal acts such as a contract or will, including entering into a formal marriage
contract. However, this does not sufficiently cover everything, and while the conferringof individual legal effects is important, access to a framework in which the relationship30

between same-sex couples is certified by a national system and which affords
appropriate benefits to protect that relationship is above all important, and therefore
this cannot resolve such disadvantage.
Although the size of the LGBT population in Japan is not necessarily clear, studies
conducted in 2015 and 2016 indicated 4.9% to 7.6% (Undisputed Fact (1)), and can be

35

estimated to be at least in the millions of people. According to medical psychological38

findings, sexual orientation is determined in most cases at the beginning of life or
before birth and does not change based on one’s own choice or psychiatric therapy(Undisputed Fact (1)(i)). Given that sexual orientation is thought to be an inherent
characteristic and does not change depending on the environment, and that there are nofindings available that the size of the LGBT population has actually increased

5

drastically in recent years, it can be surmised that the LGBT population was of aconsiderable size even at the time of the establishment of the current legal marriage
system, and while this was prior to advances in medical psychological findings andchanges in social awareness, the above framework of protections was not madeavailable to a not small number of same-sex couples for an extended period of 70 years

10

or more.
Viewing the disadvantages suffered by same-sex couples in this way, they are
disallowed the benefit of material moral interests and, moreover, the overall extent andlength is significant. Therefore, the effect of the current legal marriage system being
adopted while same-sex couples enjoy no protection is severe.

15

(vii)

On the other hand, as mentioned in (iii) above, matters concerning marriage and thefamily should be determined holistically based on the overall discipline of spousal andparent-child relationships under social conditions (including national customs and20

public sentiment).
However, even if same-sex couples are certified by a national system, it is difficult toimagine any specific disadvantage suffered by the public at large. In fact, there has
been a steady increase in the number of local governments introducing a RegisteredPartnership System since the initial establishment of the Registered Partnership System

25(Findings of Fact (5)(iii)(b)), but there is no evidence that this has caused any harm,and this can in turn be seen as evidence that there is a growing momentum among the
public to approve same-sex couples. While there are a certain number of people whovalue the traditional view of the family in which the marriage system is at the core of
the union between a man and a woman and plays a role in protecting and nurturing

30

children born between them and this position should be respected, certifying same-sex
couples under a national system would not result in immediately rejecting this position
and it must be possible to export a path to coexistence.
In addition, although the current legal marriage system has a wide range of effects,
even with respect to the essential effects that should be granted to a communal unit

35

based on an intimate relationship (such as co-habitation, the obligation of cooperation
39

and assistance, and the need for a divorce proceeding upon the dissolution of a
relationship), there are few that are basically contained between the parties, and it isdifficult to conceive of any specific harms that may arise if such legal effects were
granted to same-sex couples.
Also, the fact that the effects conferred by marriage can be realized to a certain extent

5through legal acts (such as a contract or will) can be understood to mean that the law
does not recognize any harm in granting such effects to same-sex couples.
To be sure, among the effects that should be granted to marriage, there are mattersaffecting the rights and obligations of third parties as well as matters relating to therights and obligations conferred due to various social policy decisions. Some of these10effects, if conferred on same-sex couples, may directly affect third parties or affectexisting heterosexual marriages and therefore, whether such effects should beconferred on same-sex couples should be carefully deliberated in the democratic
process, and as we have seen, the legislative background and legislative contents offoreign countries are not uniform.

15

However, even if an effect of such a nature is included, it should not be denied that acertified relationship should be given the framework for granting such effects as areappropriate for protecting the relationship.
Then, it can be construed that there is a difference in the scope of legislative discretion
between ensuring that same-sex couples do not have a framework for certifying their20

relationship through a national system and being afforded appropriate benefits toprotect that relationship, and considering and deciding what effects should be granted
while recognizing their existence and reconciling with various positions and otherinterests.
25(viii)

According to the above, the Provisions establish the current legal marriage system only
between those of the opposite sex, and by so limiting its scope, are denying to those of
the same sex a framework in which the relationship of the individuals is certified by anational system and which affords appropriate benefits to protect that relationship.

30

However, with changes in public awareness regarding the essence of the marriage
system, questions are being raised regarding the complete exclusion of same-sex
couples from enjoying the material moral interests afforded under the legal marriage
system. Given that it is difficult to sufficiently conceive any specific opposing intereststhat would justify such state of total denial despite the fact that, cumulatively, a large

35

number of same-sex couples have been prevented from enjoying such material moral
40

interests over a long period of time, even if the determination as to what benefits should
be provided to protect same-sex couple relationships should ultimately be delegated to
the Diet’s discretion based holistically on the overall discipline of the spousal andparent-child relationship under social conditions (including national customs andpublic sentiment), to continue to leave the above state as is can no longer be said to be5

reasonable in light of the requirements of an individual's dignity and should be regarded
as going beyond the scope of the Diet's legislative discretion.
Therefore, to the extent that the Provisions do not provide a framework for same-sex
couples in which their relationship is certified by a national system and which affords
appropriate benefits to protect their relationship, the Provisions violate Article 24,

10

Paragraph 2 of the Constitution.

15

(4)

Whether Article 14, Paragraph 1 of the Constitution is violated(i)

Article 14, Paragraph 1 of the Constitution provides for equality under the law, and thisprovision should be construed to prohibit legal discriminatory treatment unless it is on
reasonable grounds in accordance with the nature of the matter (case number 1962 (O)1472, Supreme Court Grand Bench judgement of May 27, 1964, Minshu Vol. 18, No.
4, p. 676, case number 1970 (A) 1310, Supreme Court Grand Bench judgement of April4, 1973, Keishu Vol. 27, No. 3, p. 265, etc.).

20

Further, as mentioned in (2)(i) and (3)(iii) above, Article 24, Paragraph 1 of theConstitution has been interpreted to make clear the intent that whether to marry andwhen and whom to marry should be left to the free and equal decision of the individual
parties, and in light of the intent of this provision, such freedom of marriage should befully respected, while Article 24, Paragraph 2 delegates the establishment of a specific25

system regarding marriage and the family to the reasonable legislative discretion of theDiet 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 Grand
Bench Judgement on the Period of Prohibition of Remarriage, Grand Bench

30

Judgement on the Same Last Name System of Husband and Wife).
Therefore, with respect to the differential treatment on matters concerning 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

35(see case number 2012 (Ku) 984 and 985, Supreme Court Grand Bench of September41

4, 2013, Minshu Vol. 67, No. 6, p. 1320).2(ii)

The Plaintiffs argue that, by allowing the marriage of individuals who wish to marry
the opposite sex (heterosexual couples) and disallowing the marriage of individuals
who wish to marry the same sex (homosexual couples), the Provisions result indifferential treatment of those that wish to marry based on their sexual orientation. The

5

Defendant argues that the Provisions are not intended to create a distinction focusing
on sexual orientation per se, but rather is neutral with respect to sexual orientation, andthat the differential treatment argued by the Plaintiffs is only a de facto or indirectconsequence arising from the application of the Provision.
In this respect, the Provisions do not treat differently in the sense that both heterosexual10

and homosexual individuals can marry a person of the opposite sex, however, giventhat the essence of marriage is for both individuals to live communally with an honest
intention of a permanent mental and physical union, it can be regarded as a marriage
in the true sense only if the marriage is between individuals with compatible sexual
orientation. Therefore, even if marriage between individuals with incompatible sexual

15

orientation is recognized, in the case of homosexual persons this would be synonymouswith the marriage not being recognized (similarly, there would be no meaning if
heterosexual persons are only permitted to marry persons of the same sex), and forhomosexual persons the fact that marriage with persons of the same sex is not permitted
means nothing other than differential treatment based on sexual orientation.

20

Accordingly, the Plaintiffs’ argument can be accepted, and the Defendant’s opposing
argument is denied.
Consequently, as a legislation relating to marriage and the family, the Provisions
impose a direct restriction on marriage based on sexual orientation, which in most cases
is an inherent characteristic over which a person has no choice to select or modify, and25

it is necessary to consider the existence or absence of reasonable grounds for such
restriction by fully taking into account the nature of the matters mentioned above.
(iii)

In light of the nature of such matters, on the issue of whether or not the scope of theDiet's legislative discretion should be regarded as having been exceeded, as already30

considered, to the extent that the Provisions deny to same-sex couples a framework inwhich the relationship of the individuals is certified by a national system and which
2

Translator’s note to reviewer: This paragraph is the same as the corresponding language in the Tokyodecision and we have conformed the translation accordingly.
42affords appropriate benefits to protect that relationship, it can be said this would apply
here, and to that extent the Provisions must be said to violate both Article 24, Paragraph
2 of the Constitution and Article 14, Paragraph 1 of the Constitution.
5

3

Whether the failure to amend or repeal the Provisions is illegal under the State
Redress Act (Issue 2)(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 result of a public official
exercising the public authority of the national government or of a public entity inviolation of a legal obligation in the course of his/her duties owed to an individual

10

citizen. Whether legislation or omission by a member of the Diet is illegal in theapplication of this clause is a question of whether or not action taken by a member ofthe Diet during the legislative process has violated the legal obligations owed toindividual citizens, and should be distinguished from the issue of the constitutionalityof the legislation. In principle, the evaluation of the above-mentioned actions should

15

be left to the political judgement of the people, and even if the contents of the legislation
violate the provisions of the Constitution, legislative acts or legislative omissions ofDiet members are not immediately deemed to be illegal for the purpose of applying
Article 1, Paragraph 1 of the State Redress Act.3
However, in cases where the Diet fails to enact legislative measures, such as revision20

or abolishment, for a long period of time without justification, despite the fact that it isclear that the provisions of the law are unconstitutional in that it restricts the rights andinterests guaranteed or protected under the Constitution without reasonable grounds,
such legislative omission is an exception because the Diet members’ actions in thelegislative process violated the above- mentioned legal obligation in the performance25of their duties, and such legislative omission is subject to Article 1, Paragraph 1 of theState Redress Act (see case number 1978 (O) No. 1240, Supreme Court, First Petty
Bench of judgement of November 21, 1985, Minshu Vol. 39, No. 7, p. 1512, casenumbers 2001 (Gyo-Tsu) No. 82 and 83 and 2001 (Gyo-Hi) 76 and 77, Supreme Court,
Grand Bench judgment of September 14, 2005, Minshu, Vol. 59, No. 7, p. 2087, Grand

30

Bench Judgment on the Period of Prohibition of Remarriage).4
3

Translator’s note to reviewer: This paragraph is the same as the corresponding language in the Tokyodecision and we have conformed the translation accordingly.
4

Translator’s note to reviewer: This paragraph is the same as the corresponding language in the Tokyo43

As mentioned in 2 above, to the extent that the Provisions do not provide a frameworkfor same-sex couples in which their relationship is certified by a national system andwhich affords appropriate benefits to protect their relationship, the Provisions violate
Article 24, Paragraph 2 and Article 14, Paragraph 1 of the Constitution. Accordingly,
we consider below whether, despite the Provisions violating the Constitution to such5extent, the failure of Diet members to take legislative measures such as amending or
repealing the State Redress Act constitutes, as an exception to the general rule, aviolation of the application of the provisions of Article 1, Paragraph 1 of the State
Redress Act.
10

(2)

In this respect, viewing the trends of international organizations, although in 1994 the
Human Rights Committee issued a decision to the effect that legislation punishingsexual intercourse between men violated the ICCPR (Findings of Fact (3)(1)(a)), thefirst time it was made clear that a framework to publicly certify same-sex couples and15

provide certain benefits arising therefrom were necessary was when the Yogyakarta
Principles were adopted in November 2006 pursuant to which the right to form a family,irrespective of sexual orientation and sexual identity, was declared (Findings of Fact
(3)(iii)). Although in 2008, specific recommendations regarding human rights issues ofsexual minorities had been made by the Human Rights Committee and the UPR, these20

merely pointed out issues such as the exclusion of same-sex couples and soughtmeasures to eliminate discrimination on the basis of sexual orientation and gender
identity from the Public Housing Act and the Act on the Prevention of Spousal Violence
and the Protection of Victims (Findings of Fact (3)(i)), and the first time the above
framework was recommended as being necessary was in 2017, during the course of25

the third cycle of UPR, when Switzerland, Canada and others indicated that it wasnecessary that the above framework extends official recognition of same-sex marriage
etc. to the national level (Findings of Fact (3)(b)).
In addition, although Denmark established a Registered Partnership System in 1989, it
can be recognized that it was only since around 2000 when Registered Partnership

30

Systems and Other Systems and same-sex marriage systems spread globally (Findingsof Fact (4)(i)(a) and (iii)(a)), and in Japan, a Registered Partnership System wasestablished for the first time by a local government in April 2015 (Findings of Fact
(5)(iii)(b)). It was not until around 2016 and thereafter that local governments, private
decision and we have conformed the translation accordingly.
44companies and various organizations made recommendations to the national
government that a framework for the public certification of same-sex couples and theprovision of legal benefits thereunder were necessary (Findings of Fact (5)(iii) and(iv)), and it was only in June 2019 that a specific bill was submitted to the Diet
(Findings of Fact (5)(ii)).

5(3)

According to (2) above, it is relatively recent that the necessity of notarization forsame-sex couples and the framework for granting the effect based on it has come to berecognized specifically in our country. Regarding the matters related to marriage andfamily, the establishment of a specific system is primarily left to the reasonable

10

legislative discretion of the Diet. However, there is a traditional view that the malefemale bonding relationship is responsible for protecting and fostering children born
between them, and this view has not been lost even today. In light of the fact that the2020 opinion poll demonstrated that there are a certain number of opponents same-sex
marriage, it is not possible to conclude that the Diet has neglected the legislative

15

measures such as revision and abolition of legislation, for a long period without
justifiable reasons even though that the Provisions clearly violate Articles 24,
Paragraph 2, and Article 14, Paragraph 1 of the Constitution.
20(4)

Therefore, the failure to revise or abolish the Provision cannot be deemed that theactions of Diet members in the legislative process are a violation of the legal obligationand is not deemed to be illegal for the application of Article 1, Paragraph 1 of the State
Redress Act.

25

IV.

Conclusion
Therefore, the Plaintiffs’ claims are groundless without making a determination on theother points at this case, and therefore, the judgment is rendered to dismiss the Plaintiffs’
claims in the form of the main text.

30

Eighth Civil Department, Nagoya District Court

Presiding Judge Justice

Osamu Nishimura

35

45

Judge Kouhei Fujine
Judge Masanari Hayagawa is unable to sign and seal due to his transfer.
5

Presiding Judge Justice

Osamu Nishimura

46

Exhibit 1
List of parties[Japanese original redacted]
5

Plaintiff [Japanese original redacted]
The same place
Plaintiff [Japanese original redacted]

1015Attorney representing the aforesaid two parties

Akiko YazakiSame as above

Tetsushi Horie

Same as above

Asato Yamada

Sub-agent attorney

Kazuki ShindoSame as above

Kaoru Sunahara

Same as above

Yoko Mizutani

Same as above

Ayumi Sato

Same as above

Kohei Ishikawa

1-1 Kasumigaseki 1-chome, Chiyoda-ku, Tokyo

20

25

Defendant

The Country of JapanThe representative, the Minister of JusticeKen Saito

Appointed agent

Naoki Okabe

Same as above

Tomohisa Miyagi

Same as above

Haruka Mizutani

Same as above

Gaku Murakami

Same as above

Kohei Iju

Same as above

Yumi Nakamura

Same as above

Tsunehisa Saito

Same as above

Tomomi Ono

47

Exhibit 2
Parties’ assertions
1

Issue 1 (whether the Provisions violate Article 24, and Article 14, Paragraph 1 of
the Constitution)

5(1)

Claims of the Plaintiffs(i)Plaintiffs primarily claim that the Provisions violate Article 24 and Article 14,
Paragraph 1 of the Constitution because the Provisions do not provide for marriage thatcan be used between people of the same sex. The Plaintiffs’ secondary claim is that theProvisions are in violation of the Article as an impediment to marriage between people

10of the same sex.
It should be construed that there is no limitation due to sexual orientation or gender ofthe parties on the subject of the freedom to marry guaranteed under Article 24,
Paragraph 1 of the Constitution, and that marriage with a person of the same sex isalso included in the freedom of marriage guaranteed under the same paragraph.

15

Paragraph 2 of the said article provides that the law concerning the choice of spouseshall be based on the dignity of individuals and the intrinsic equality of both sexes. This
provision also puts no limitation due to sexual orientation or gender. Therefore, it
should be construed that the individual dignity of a person who chooses a spouse of thesame sex under law shall be respected, or the legislative body is obligated to establish

20

a legal system based on the essential equality of both sexes, where it is not prejudiced
that “A person marries a woman (man) because the person is a man (woman)”. Andeven if the right to seek marriage between individuals of the same sex is not guaranteedby the same article, the right to enjoy various legal interests arising from marriage is aserious legal interest, and if this is subject to unreasonable discrimination due to sexual

25

orientation or gender, it should be regarded as a violation of Article 14, Paragraph 1 of
the Constitution.
(ii)
30

Violation of Article 2 4, Paragraph 1 of the Constitution
Article 24, Paragraph 1 of the Constitution premises the existence of a system underwhich legislation, by setting requirements and consequences, provides protection toand approves and certifies a permanent community life based on an intimate
relationship between a person and a person (legal marriage), and guarantees withrespect to such legal marriage the freedom to marry a desired partner autonomously on

35

the basis of their mutual intention to marry without interference by a national or a third48

party(freedom of marriage). This is because the freedom of marriage constitutes animportant element of the right to self-determination guaranteed by Article 13 of theConstitution and is an essential foundation for ensuring building a pluralistic fair anddemocratic society. Freedom of marriage means freedom from the old status systemand communal restraint, and is an essential attribute of modern marriage. This is5

evident from the process of enactment of Article 24 of the Constitution.
Furthermore, since the bases for the enhanced freedom of marriage through toconstitutional rights are equally applicable to same-sex couples, Paragraph 1 of the said
article should be construed to also guarantee the freedom of marriage between
individuals of the same sex.

10

In this respect, the same paragraph uses the phrase “both sexes,” but it is intended todeny the right of consent to marriage by the head of the household within the familysystem under the Meiji Civil Code, and it does not deny marriage between individualsof the same sex. Even if same-sex marriage was not envisaged at the time of enactmentof the Constitution, inseparable connection between marriage and reproduction has

15

been lost due to diversification of forms of marriages and families, the social
recognition of sexual orientation and gender identity has fundamentally changed, and
it is now universal knowledge in the international community that discrimination on
the grounds of sexual orientation and recognition of sexual identity is prohibited andlimitations on human rights for such reasons is not tolerated. There are many foreign

20

countries that have enacted legislation that permit marriage between individuals of thesame sex. Even in our country, many local governments have introduced a RegisteredPartnership System to certify same-sex partnership, various organizations are urging tolegalize same-sex marriage, and in various opinion polls the majority have expressed
their approval for same-sex marriage. In light of these changes in the social situation,25

it can be said that the social consciousness that same-sex marriage is also included in“marriage” has been established, and therefore, it is obvious that this provision
guarantees same-sex marriage.
However, since the Provisions do not permit same-sex marriage and unjustly infringe
upon the freedom of marriage between individuals of the same sex, it is30

unconstitutional and void to that extent.
(iii)

Violation of Article 24, Paragraph 2 of the Constitution
Article 24, Paragraph 2 of the Constitution limits the legislative discretion of the State

35

concerning “choice of spouse... and other matters pertaining to marriage and the family”
49

by the request of “individual dignity and the essential equality of both sexes.” Forsame-sex couples to be excluded from the marriage system despite the fact that theylead a married life which does not differ from that of the opposite-sex couples in reality
violates this essential equality of both sexes. In addition, because such breach ofequality imposes a direct restriction on the freedom of marriage guaranteed under5

Paragraph 1 of the said Article, and because sexual orientation and gender identity
constitute the basis of an individual’s identity and cannot be changed through their own
will or efforts, whether the said violation of equality is permissible should be examinedin a strict manner.
In this respect, in light of the fact that decision-making concerning marriage is carried

10

out in the same way as other decision in life and affects the existence of the entire
human being, and that there is no difference from the opposite-sex couples, denial of
marriage of same-sex couples impairs their “dignity”. Furthermore, it is impossible tofind sufficient reasons or the necessity to permit such impairment of dignity, and on
this basis, the denial of marriage between individuals of the same sex violates

15

Paragraph 2 of the said Article.
It should be noted that even if the Diet, on the basis of Paragraph 1 of the said Article,
may give preferential treatment to marriage compared to other relationships, thedisadvantages arising from such treatment must be based on reasonable grounds fromthe viewpoint of Paragraph 2 of the said Article or Article 14, Paragraph 1 of the20

Constitution. Even if it is determined that such treatment does not violate Article 24,
Paragraph 1 of the Constitution, it is not exempt from examining the conformity with
Paragraph 2 of the said Article or Article 14, Paragraph 1 of the Constitution.
25

(iv)

Violation of Article 14, Paragraph 1 of the Constitution
The Provisions stipulate that persons who wish to marry opposite-sex individuals(opposite-sex couples) shall be allowed to marry while persons who wish to marry thesame-sex individuals (same-sex couples) shall not be allowed to marry and this createsa difference in treatment based on the sexual orientation of persons who wish to marry.

30

Due to this treatment, homosexual individuals are not entitled to the freedom ofmarriage guaranteed under Article 14, Paragraph 1 of the Constitution, but are also
unable to receive a social recognition as a formal couple and suffer from serious
disadvantages as they cannot receive any legal, economic, social or de facto benefits
that shall be received by married parties. Furthermore, in light of the fact that the above35

difference in treatment based on sexual orientation is based on “social status” and50

“gender” set forth in the second sentence of Article 14, Paragraph 1 of the Constitution,and that sexual orientation cannot be changed by one’s own will and efforts, and thathomosexual individuals constitute a minority group in society making it difficult toobtain redress in the democratic process, whether such difference in treatment isreasonable must be examined in a strict manner.

5

In this regard, as a result of the diversification of marriage and family types, theindivisible connection between marriage and reproduction has been lost, and themeaning of marriage has come to be found in the stabilization of personal relationships
with partners. The necessity for such stabilization is equally appropriate for same-sex
couples, and there is no theoretical basis for excluding same-sex couples from10

receiving the rights and benefits arising from marriage. In addition, not approving
marriage by homosexual couples stigmatizes them on bring in “socially unacceptable
relationships” and damages their dignity. For the reasons stated above, there is no
reasonable ground for such difference in treatment, and the Provisions are in violationof the said paragraph.

15

In the past, heterosexuality was considered as “normal” and other sexuality including
homosexuality as “abnormal.” However, the view that homosexuality is a
psychopathology has been repudiated in the field of psychiatry, and it is now
universally recognized in the international community that discrimination against
homosexuality is not permitted. As mentioned in (ii) above, in light of the fact that a20social consciousness has been established that marriage between individuals of thesame sex is also included in “marriage,” it is obvious that the heterosexual norm is nolonger accepted, and the difference in treatment is no longer permissible.
25(2)

The Defendant’s claims(i)Concerning the alleged violation of Article 24, Paragraph 1 of the Constitution
Article 24, Paragraph 1 of the Constitution provides that marriage shall be establishedsolely on the basis of the consent of “both sexes,” and does not encompass a marriage
between “the same sex.” In addition, considering the legislative history of the said

30

paragraph, it is assumed that marriage is a relationship between men and women as amatter of course, and that is still the general understanding at present. Therefore, itcannot be said that the societal consensus that same-sex marriage is also included in“marriage” has been established.
Furthermore, marriage is premised on the existence of a certain legal system, and the35said paragraph does not guarantee freedom to marry as an innate and natural right51

independent of the legal system. The claims of the Plaintiffs require the establishmentof a legal system beyond the scope of the current legal system, which allows forchoosing a person of the same sex as a marital partner. Such rights are not based on
Article 13 of the Constitution, nor does Article 24, Paragraph 1 of the Constitution
require the nation to provide such legislation.

5Consequently, it cannot be said that the freedom to marry is guaranteed for same-sex
couples, and the various statutory provisions discussed in this case do not violate thesaid paragraph.
10

(ii)

Regarding claims of violation of Article 24, Paragraph 2 of the Constitution
As mentioned in (i) above, Article 24, Paragraph 1 of the Constitution does notguarantee freedom of marriage with respect to same-sex couples. Paragraph 2 ofArticle 24, on the premise that marriage is intended only for joint, heterosexual humanrelationships, requests the legislature to establish a concrete system to materialize thesame, and cannot be construed to require the legislature to take legislative measures to15

allow marriage with respect to joint, homosexual human relationships. Therefore, theProvisions in the present case, which do not permit marriage between individuals of
the same sex, do not violate the said paragraph.
20

(iii)

Regarding claims of violation of Article 14, Paragraph 1 of the Constitution
Since Article 24 of the Constitution assumes only marriage between members of the
opposite sex, it is only natural that a difference arises in that only legal marriage
between members of the opposite sex is systematized, and legal marriage between
members of the same sex is not systematized. This difference is expected and permitted

25by the Constitution itself, and therefore one cannot argue that conformity with Article
14, Paragraph 1 of the Constitution is problematic.
Even if one could argue that conformity with said paragraph is problematic, suchconformity must be based on the premise of legislative discretion for the establishmentof a legal system concerning marriage and family. Matters concerning marriage and30

family should be determined comprehensively by taking into account various social
factors, including national traditions and public sentiment, as well as factors that reflect
the changing times. In particular, the details regarding interests and matters of
substantive equality that are not directly guaranteed under the Constitution are diverse,
and their realization should be determined by taking into account social conditions, the35living conditions of the people, family circumstances, etc. The Constitution itself does52not prescribe the details of such rights and interests. Rather, it is appropriate that they
be realized in the law. Article 24, Paragraph 2 of the Constitution requires that theestablishment of a concrete system concerning marriage and family matters be
entrusted to the reasonable discretion of the legislature in the first instance. Such
5

legislation should be based on Paragraph 1 of the same article and at the same time, it
can be said that the guidance provided by references to individual dignity and theessential equality of the sexes act as limits on such legislative discretion. Therefore,
when determining whether marital and family matters violate Article 14 of theConstitution, it is necessary to reach a determination that is consistent with Article 24

10of the Constitution. In addition, since Article 24 of the Constitution does notpresuppose the establishment of a marriage system which covers same-sex relations,and since the Provisions do not create a distinction that focus on sexual orientation
itself, but are neutral in respect of sexual orientation, such that the differing treatmentthat the Plaintiffs allege is merely a de facto or indirect effect arising from the15

application of the Provisions, and since the freedom to enjoy the legal effect ofmarriage is not guaranteed by the Constitution as an inherent right or an interest which
is a part of the legal system, then a determination that the Provisions are in violation of
Article 14, Paragraph 1 of the Constitution can only be reached if the legislative
purpose of the Provisions that have given rise to a difference between homosexual

20

persons and heterosexual persons in terms of whether or not the legal effects ofmarriage can be enjoyed or not have no reasonable basis or where the legislative
process is extremely unreasonable in light of the legislative purpose, and it is clear that
there has been an abuse of the broad discretion given to the legislature.
In this respect, the purpose of the Provisions is that, in view of the fact that there is a25

historical social recognition that marriage is a union of a man and a woman for the
purpose of procreation and child rearing, and that the tradition and customs of ourcountry have been so institutionalized, it is particularly reasonable to give legal
protection to such joint relationships between men and women. Regarding the fact that
the Provisions allow marriage regardless of the actual natural procreation possibility, it

30

is reasonable in relation to the legislative purpose to provide for marriage on the basisof the biological natural reproductive potential. It is also reasonable in relation to thelegislative purpose, given that Article 24 of the Constitution does not presuppose
marriage targeting joint homosexual human relationships, and that there is no social
recognition that joint homosexual human relationships can be regarded as being the

35same as that between members of the opposite sex, and that the establishment of joint
53

human relationship similar to marriage in the same-sex couple is not restricted, and thatthe disadvantages caused by the inability to use the marriage system are substantiallyeliminated or reduced by using other systems under the Civil Code.
Therefore, since the legislative purposes of the Provisions have reasonable grounds,
and specifying marriage only for joint human heterosexual relationships, and not for5

joint human homosexual relationships is reasonable in relation to such legislative
purposes, this is not a situation where the legislative discretion was obviously deviatedor abused, and even though the Provisions result in differing treatment as claimed by
the plaintiffs, they do not violate Article 1 4 of the Constitution.
102

Issue 2 (Whether it is illegal under the State Redress Act not to amend or abolishthe Provisions)(1)

The Plaintiffs' Claims
In cases where the Diet fails to enact a legislative measure such as a revision or an

15

abolishment for a prolonged period of time without justification, despite the fact that itis clear that the provisions of the law are in violation of the provisions of theConstitution as restricting the rights and interests guaranteed or protected under theConstitution without reasonable grounds, the legislative omission may be regarded
exceptionally as unlawful in the application of Article 1, Paragraph 1 of the State

20

Redress Act on the grounds that the Diet members’ actions in respect of the legislative
process violated their legal obligations in the course of their duties.
The Diet should have clearly recognized that the Provisions are unconstitutional if it
can recognize that ① the legal norm has been established that discrimination basedon sexual orientation or gender identity is not permitted from the viewpoint of the25

respect of individuals, and ② marriage is one form of self-determination that is
indispensable for the respect of individuals. In this regard, No. ② above was alreadyclear in 1947 when the Constitution of Japan was enacted. Therefore, once it became
possible to recognize No. ① above, it would have been recognizable to the Diet that
the Provisions in this case were unconstitutional. There are several possible points at30

which the recognition of ① above became possible. However, in light of the fact thatJapan has received recommendations from the United Nations Convention
Organizations on the protection of human rights concerning sexual orientation andgender identity since 2008, and has been actively engaged in domestic and overseas
activities on the premise that discrimination based on sexual orientation and sexual

35

recognition is not permitted, it shall not be later than the same year.
54Considering that the legislative measures to enable marriage between individuals of
the same sex do not involve legislative and technical difficulties, the Diet should be
deemed to have failed to amend or abolish the Rules for a prolonged period time from2008 until the time of [original Japanese redacted] when the Plaintiffs prepared thenotarial deed of the marriage contract, and such legislative omission shall be regarded5

as illegal for the purpose of applying Article 1, Paragraph 1 of the State Redress Act.
(2)

The Defendant’s Claims
As stated in 1(2) (Defendant’s claim), the Provisions do not violate Article 24 or Article
14, Paragraph 1 of the Constitution. Therefore, the Diet member shall not be deemed10

to be in violation of the law for the purpose of Article 1, Paragraph 1 of the State
Redress Act as violating the legal obligations in the duties imposed on the individual
citizens.
15

3

Issue 3 (Amount of Damages to Plaintiffs)(1)

The Plaintiffs’ Claim
The Plaintiffs suffered a serious infringement of their freedom to marry, which isguaranteed under the Constitution, in so much as they could not obtain any legal,
economic, social or de facto benefits that are allowed to marrying parties. In addition,
plaintiffs suffered a stigma that “their relationship is not approved by society” and their

20

dignity as an individual was injured. If such mental distress is evaluated in monetary
terms, it shall not be less than one million yen per Plaintiff.
(2)
25

The Defendant’s Claim
The occurrence of damages and the amount thereof shall be denied and contested.
[End]

55