【 English Translation by Lawyers for LGBT and Allies Network (LLAN: llanjapan,org).
Japanese judgment available at https://bit.ly/3cIrRS4】

Original

Judgment delivered on March 17, 2021: receipt of the original on the same day Court clerk [stamp]
Case No. (Wa) 267 of 2021, Claim for Damages Case
Date of conclusion of the oral argument: 28 October 2020

Judgment
The list of parties is contained in Exhibit 1.
meanings defined in Exhibit 1.

The terms used in the judgment shall have theMain Text of Judgment
1. The plaintiffs’ claims are dismissed.
2. The cost 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 and interest thereon
at a rate of 5% per annum from February 28, 2001 until the completion of payment.

II

Summary of the Facts

1

Summary of the Facts

The Plaintiffs argue that the Civil Code and the Family Register Act, which do not permit marriage
between persons of the same sex, is a violation of Article 13, Article 14, Paragraph 1, and Article 24of the Constitution, and that the failure of the State to take necessary legislative measures is unlawful
under Article 1, Paragraph 1 of the State Redress Act. The Plaintiffs seek payment from the State of
1,000,000 yen per Plaintiff for compensation of non-pecuniary damage, together with interest thereon
at a rate of 5% per annum, the statutory rate prescribed in Article 404 of the Civil Code prior to theamendment by Law No. 44 in 2017.
2

Undisputed Facts (the facts below are not in dispute amongst the parties)(1)

Sexual Orientation

Sexual orientation refers to the attraction that a person feels towards another person in a sensual,emotional or sexual sense. A person who has such feeling of love and sexual attraction towards a
person of the opposite sex is heterosexual (“heterosexual person”), and a person who has such feelingof love and sexual attraction towards a person of the same sex is homosexual (“homosexual person”).

1

(2)

3

Relationships of the Plaintiffs(i)Plaintiff 1 and Plaintiff 2 are male and homosexual. Plaintiff 1 and Plaintiff 2
filed a marriage notification at their place of residence in January 2019.
However, such notification was rejected because they are of the same sex.

(ii)

Plaintiff 3 and Plaintiff 4 are male and homosexual. Plaintiff 3 and Plaintiff 4
filed a marriage notification at their place of residence in January 2019.
However, such notification was rejected because they are of the same sex.

(iii)

Plaintiff 5 and Plaintiff 6 are female and homosexual. Plaintiff 5 and Plaintiff
6 filed a marriage notification at their place of residence in January 2019.
However, such notification was rejected because they are of the same sex.

Relevant Provisions of the Civil Code and the Family Register Act

Article 739, Paragraph 1 of the Civil Code provides that marriage shall be effective upon notification
pursuant to the Family Register Act and Article 74, Item 1 of the Family Register Act provides that
persons who intend to marry shall provide notification of the married surname of the husband and wife.
In this manner, the provisions of the Civil Code and the Family Register Act concerning the marriage
system, as a whole, only allow marriage between individuals of the opposite sex (“opposite-sex
marriage”), and no provision therein allows marriage between individuals of the same sex (“samesex marriage”). Thus, the relevant provisions of the Civil Code and the Family Register Act
concerning marriage (collectively, the “Provisions”) stipulate that only individuals of the opposite sex
may marry.
4

Issues and Summary of the Parties’ Assertions

The issues in this case are as follows, and the outline of the parties’ submissions on these issues aredescribed in Exhibit 2. The terms used in the body of the judgment shall have the meanings definedin Exhibit 2.
(1)

Whether the Provisions are in violation of Article 13, Article 14, Paragraph 1 andArticle 24 of the Constitution;(2)

Whether the failure to amend or repeal the Provisions is unlawful for the purpose of
Article 1, Paragraph 1 of the State Redress Act; and(3)

The amount of the plaintiffs’ damages.

III

The Court’s Judgment

1

Findings of Fact by the Court

The Court accepts the following facts based on the evidence provided:(1)

Sexual Orientation(i)

Sexual Orientation

Sexual orientation refers to the attraction a person feels towards another person in a sensual,emotional or sexual sense. A person who has such feeling of love and sexual attraction towards
a person of the opposite sex is heterosexual, and a person who has such feeling of love and sexual
attraction towards a person of the same sex is homosexual. While the causes of one’s sexual2

orientation, or homosexuality have not been found, experts point to a combination of factors suchas genetics and environment as possibly influencing one’s sexual orientation. However, themajority of associations of psychiatric professionals state that in most cases, sexual orientation isdetermined before birth or in the early years of life, and that it is not a choice. The majority
opinion among psychologists is also that sexual orientation cannot be chosen or changed at one’s
own will. Although some homosexual persons may alter their sexual behavior, this does notmean that they have changed their sexual orientation beyond a mere change in behavior. Sexual
orientation cannot be changed at will or by psychiatric therapy (Undisputed Fact (1); Plaintiffs’
Evidence A2 (including sub-sections), 7 (including sub-sections), 231, 233, 235; Testimony ofPlaintiffs 1-2, 4-6).
(ii)

Population by Sexual Orientation

The number of people with a non-heterosexual orientation in Japan is unclear. Three different
surveys claim that the population ratio of LGBT persons (collective term for homosexual men andwomen, bisexual persons with both homosexual and heterosexual orientations, and transgenderpersons whose gender identify is not aligned with their biological sex) is 7.6%, 5.9%, and 8%
respectively. In all three surveys, the population ratio of heterosexual persons exceeds 90%(Plaintiffs’ Evidence A350).
(2)

Perception of Homosexuality in the Meiji Era

In the Meiji era, homosexuality was regarded as a form of sexual perversion or congenital disease,somewhere between being healthy and psychotic. Major symptoms of sexual perversion included
homosexual desires, men desiring young boys, men engaging in sodomy (sexual acts between men),
and women loving women. These were regarded as the first signs of degeneration. Treatments forsuch sexual perversions included hypnotism, bromine drugs, physical work, cold water baths, andchange of environment (Plaintiffs’ Evidence A187, 189).
In addition, homosexuality in adolescence was considered to occur because of a very strong desire for
affection. It was considered that this situation should not cause any concerns 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 therefore be treated with extreme caution and should be completely
prohibited (Plaintiffs’ Evidence A190).
(3)

Marriage System under the Family Law Section of the Civil Code (“Meiji Civil
Code”) Prior to the Amendment by Law No. 222 of 1947 (“1947 Amendment of the
Civil Code”)(i)Drafting of the Meiji Civil Code

When the Meiji Civil Code was drafted, the drafters referred to foreign laws of eight countries,
including the French Civil Code, the Italian Civil Code, and the Belgian Civil Code. During thedrafting process, the drafters assumed as a matter of course that marriage should be between a
man and a woman and there is no evidence of discussion around whether or not to allow samesex marriage. At that time, there were foreign laws that explicitly prohibited same-sex marriage.
However, the drafters considered it obvious that same-sex marriage should not be recognized andthat there was no need to include specific provisions in the Civil Code (Plaintiffs’ Evidence A184,
186, 188).
(ii)

Marriage under the Meiji Civil CodeEven before the enactment of the Meiji Civil Code, marriage was considered an important life
event, and there were already a number of customs related to marriage. The Meiji Civil Code3

was enacted to codify these old customs. Instead of fully abolishing these customs, the Meiji
Civil Code regulated certain harmful customs and clarified other customs that were ambiguous(Defendant’s Evidence 3).
The Meiji Civil Code was based on the concept of the family system (kazoku shugi), which centersaround the household (ie), with the head of the household (koshu) having the power to control thehousehold (koshu-ken). Marriage was for the benefit of the household. Thus, marriage
required the consent of the head of household or an individual’s parents, and the mere agreementof the parties to the marriage was not sufficient. Further, the husband had dominance over his
wife. Marriage under the Meiji Civil Code was considered a bond between a man and a woman
meeting the requirements of morals and customs and for the purpose of life-long cohabitation. It
was also considered a bond between the opposite sexes for the purpose of living a life recognizedby law. Consequently, under the Meiji Civil Code, it went without saying that marriage was
between a man and a woman, and therefore, there was no provision prohibiting same-sex marriage.
Marrying a person of the same sex was considered to be the same as metaphors like “to take anacademic discipline as a wife” or “to marry books” and such kind of marriage must be rejected
because it is completely devoid of the intention to marry (Plaintiffs’ Evidence A19, 183, 188, 193,
Defendant’s Evidence 4, 5).
(iii)

The Purpose of the Marriage System in the Meiji Civil CodeSince the time of the drafting of the Meiji Civil Code, there were considerations and discussions
on whether a man and a woman who cannot reproduce could still be married. While some people
believed that the nature of marriage was for a man and woman to continue the family line and tolive together sharing the hardships of life, others believed that the definition of marriage as a man
and a woman continuing the family line could not account for the fact that some married couples
could not have children due to old age or other reasons. The view that the purpose of marriage
cannot be achieved if a man and a woman cannot have children is not in accordance with the
purpose of the Meiji Civil Code, which understood marriage as essentially a union of two people
without requiring the capacity to produce children.
Through such discussions, the Meiji Civil Code established the view that marriage was for thejoint life of a man and a woman as husband and wife, and was not necessarily for the purpose of
procreation or for the purpose of having heirs. Therefore, marriage between elderly persons or
those incapable of reproduction was also considered valid (Plaintiffs’ Evidence A186, 196, 199
and Defendant’s Evidence 4).
(4)

Perception of Homosexuality from the Early Post-War Period (Around 1945) toAround 1980(i)

Perception of Homosexuality in the Fields of Medicine and Psychology

Even in the early days after the end of World War II, sodomy and sexual intercourse between
women were considered to be forms of perverted sexual desire. In other words, sodomy andsexual intercourse between women were regarded as pathological sexual perversions akin to
exhibitionism, and something commonly seen among the mentally disturbed.
In the field of psychology, homosexuality was considered to be an abnormal disposition that had
existed since ancient times regardless of ethnic group or social rank. Homosexuality wasconsidered to occur when, before a person matured into heterosexuality, the person experiences
homosexuality either mentally or physically and became fixated on the homosexual experience.
It was believed that while most persons would later become heterosexual and lead a healthy
married life, in some cases homosexuality could become pathologically entrenched due to external
4

factors, and unlike normal healthy affection, this was considered as a kind of sexual maladjustment.
It was believed that, if homosexuality became pathologically entrenched, psychological therapy
consisted of essentially self-suggestion, self-observation, investigation of the cause, and removalof the obstacle to heterosexuality (Plaintiffs’ Evidence A201 to 205 for the foregoing).
(ii)

Perception of Homosexuality in Foreign Countries

In the first edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-I)
published by the American Psychiatric Association in 1952 and its second edition (DSM-II)
published in 1968, homosexuality was considered to be a psychopathic personality accompanied
by pathological sexuality or a personality disorder (Plaintiffs’ Evidence A48, 215).
In addition, the World Health Organization’s International Classification of Diseases (ICD) also
categorized homosexuality under sexual deviation and sexual disorder up to and including the 9thedition (ICD-9) prior to publication of the 10th edition (ICD-10) in 1992 (Plaintiffs’ Evidence
A29).
(iii)

Treatment of Homosexuality in the Field of Education

The “Basic Material on Problematic Behavior of Students” published by Japan’s Ministry of
Education in January 1979 as guidance for junior and senior high school students describedhomosexuality as a perverted form of sexual delinquency and further indicated that aversion tothe opposite sex may occur due to certain causes. It added that most would return to normal
heterosexuality with maturation but for some homosexuality would continue into adulthood. The
material also indicated that homosexuality is generally likely to impede the development ofhealthy heterosexual love, and is not acceptable even in modern society because it is contrary tosound social morality and is likely to result in sexual disorders (Plaintiffs’ Evidence A26).
(5)

Marriage in the Context of Family Law under the Civil Code after the 1947
Amendment of the Civil Code (“Current Civil Code”)(i)1947 Amendment of the Civil CodeIn 1947, the Meiji Civil Code was amended for the following reasons:
Articles 13 and 14 of the Constitution make it clear that all citizens shall be respected as
individuals and are equal under the law, and that there shall be no economic or social
discrimination on the basis of sex or other factors. Article 24 of the Constitution declares thatmarriage shall be based solely on the mutual consent of both sexes, that it shall be maintained
through mutual cooperation on the basis that husband and wife have equal rights, and that withregard to choice of spouse, property rights, inheritance, domicile, divorce and other matterspertaining to marriage and the family, laws shall be enacted based on respect for the individual
and the inherent equality of the sexes. However, as the Meiji Civil Code had provisions which
violated fundamental principles of the Constitution, the amendment of the Meiji Civil Code wasconsidered necessary. Under Meiji Civil Code, the law was based on the concept of the familysystem (kazoku shugi), which centers around the household (ie), with the head of the household(koshu) having the power to control the household (koshu-ken); marriage, being for the benefit of
the household, required the consent of the head of household or an individual’s parents and themere agreement of the parties to the marriage was not sufficient; and the husband had dominanceover his wife. The amendment of the Meiji Civil Code sought to emphasize individual autonomy
in marriage, and aimed to change the legal approach to family matters to one that is based on an
individualistic view of family and cherishes individual purpose.

5However, the 1947 Amendment of the Civil Code focused on the provisions of the Meiji Civil
Code that conflicted with the Constitution and the provisions of the Meiji Civil Code that did notconflict with the Constitution were unchanged. There is no indication that same-sex marriage
was discussed at the time (Plaintiffs’ Evidence A19, 142, 143, 145, 146, 152, 177, Defendant’s
Evidence 6, 7, the overall import of oral arguments).
(ii)

Concept of Marriage at the Time of the 1947 Amendment of the Civil CodeEven with the 1947 Amendment of the Civil Code, marriage continued to be considered as
something to which only a man and a woman could be party. A marital relationship wasconsidered to be a spiritual and physical union between a man and a woman forming a marital
relationship under social conventions, according to what society generally considered to be amarital relationship. In addition, the intention to marry was understood to mean the intention to
grant the parties the status of husband and wife as determined by social norms, and to enable
children born between the parties in the future to acquire the status of children as determined bysocial norms, or the intention to form a relationship that could be viewed as a marriage under thesocial norms of the time (Plaintiffs’ Evidence A206, 207, Defendant's Evidence 8, 9).
(iii)

Understanding of Same-sex Marriage

At the time of the 1947 Amendment of the Civil Code, as described in paragraph (ii) above, as amarital relationship was considered to be a spiritual and physical union between a man and awoman forming a marital relationship consistent with social norms, according to what society
generally considered to be a marital relationship, same-sex marriage was not recognized as
marriage in that sense. In addition, similar to the position under the Meiji Civil Code, same-sex
marriage had to be rejected as something completely devoid of the intention to marry, as can beseen when using metaphors such as “to take an academic discipline as wife” or “to marry books.”(Plaintiffs’ Evidence A206, 207, Defendant’s Evidence 9)(6)Perception of Homosexuality since around 1973(i)Changes in Perception of Homosexuality in Foreign Countries

The American Psychiatric Association adopted the resolution to remove homosexuality from its
list of mental disorders in 1973, and in 1975, the American Psychological Association endorsed
the same resolution and adopted a resolution that homosexuality on its own did not imply theexistence of a disability with respect to the person’s judgement, stability, reliability, general social
ability or occupational performance (Plaintiffs’ Evidence A1 (including sub-sections) 3 (including
sub-sections)).
The American Psychiatric Association, in its third edition of the Diagnostic and Statistical Manualof Mental Disorders (DSM-III) published in 1980, amended the description of homosexuality to
the effect that it constituted a mental disorder only if a homosexual patient disliked a persistentpattern of homosexual excitement and claimed that it was a source of persistent distress, but thiswas also eliminated in the revised third edition (DSM-III-R) published in 1987 and homosexuality
is no longer considered a mental disorder (Plaintiffs’ Evidence A27-1 to 28-2, 48, 215, 217).
In 1992, the World Health Organization published the tenth edition of the International
Classification of Diseases (ICD-10), which eliminated homosexuality from the classification of
diseases. The World Health Organization also declared that homosexuality is not something thatcan be subject to treatment in any sense of the word (Plaintiffs’ Evidence A30-2, 48, 215, 217).
(ii)

Changes in Perception concerning Homosexuality in Japan
6

In Japan, by around 1981, the perception that homosexuality should not be considered a
psychiatric problem as long as the individual concerned is leading a normal social life, and that itshould be sufficient to treat only those complaining of mental distress became widespread, andsince then homosexuality has not been regarded as a mental disorder in Japan (Plaintiffs’ Evidence
A48, 216, 217).
(7)

Status concerning Same-Sex Marriage in Various Countries and Regions(i)

Status of Legal Systems in Various Countries and Regions(a)
In 1989, Denmark adopted a registration system that officiallyrecognized the relationship between two persons of the same sex and granted them a certain
status (the details of which vary depending on the country introducing such a system;
collectively, the “Registered Partnership System”). Germany and Finland adopted a
Registered Partnership System in 2001, followed by Luxembourg in 2004 and Ireland in 2010
(Plaintiffs’ Evidence A141).
(b)
In addition, the following countries introduced a system recognizing
same-sex marriage (Plaintiffs’ Evidence A141) in the following years:
2000
2003
2005
2006
2008
2009
2010
2012
2013
2015
2017

Netherlands
Belgium
Spain and Canada
South Africa
NorwaySwedenPortugal, Iceland and Argentina
Denmark
Uruguay, New Zealand, France, Brazil and the United Kingdom(England and Wales)
Luxembourg and Ireland
Finland, Malta, Germany and Australia(c)
On June 25, 2015, the U.S. Supreme Court, in the Obergefell case,rendered a judgment to the effect that a state law which limited marriage to couples of the
opposite sex and did not permit same-sex marriage was in violation of the Fourteenth
Amendment to the U.S. Constitution providing for due process and equal protection(Plaintiffs’ Evidence A155).
In Taiwan, in 2017, the Judicial Yuan, which corresponds to a constitutional court, ruled that
the Civil Code of Taiwan, which did not permit same-sex marriage, violated the Constitutionof Taiwan, and, in light of this judgment, the Civil Code was amended to permit same-sex
marriage (Plaintiffs’ Evidence A101 (including sub-sections), 135).
In Italy, the Constitutional Court ruled in 2010 and 2014 that marriage referred to a union
between individuals of the opposite sex. However, the court ruled that, the fact that there
was no system other than marriage available under Italian law which appropriately provided
for the rights and obligations of same-sex couples violated the Italian Constitution.
Consequently, a law which established a Registered Partnership System was enacted in 2016
(Plaintiffs’ Evidence A141).

7

(d)In 2013, the Russian Federation enacted a statutory amendment, which
while not prohibiting homosexual acts, prohibited the promotion of homosexuality. In 2014,
the Constitutional Court ruled that the homosexual acts did not violate the Constitution.
In Vietnam, the law was amended in 2014 so that a wedding ceremony between a same-sex
couple was no longer a prohibited activity. However, at the same time, the amended law
stipulated that marriage was defined as being between a man and a woman, and that the law
would not provide legal approval or protection for same-sex marriage.
In addition, in the Republic of Korea, a district court ruled in 2016 that recognition of samesex marriage should be decided by the legislature and not by judicial decision. According
to a survey conducted in Korea in 2013, 67% of respondents were against legally recognizing
same-sex marriage while 25% were in favor (Plaintiffs’ Evidence A141 for the foregoing).
(ii)

Trends in Foreign Organizations Located in JapanIn September 2018, the American Chamber of Commerce published a written opinion advocating
freedom of marriage for LGBT couples, pointing out that same-sex marriage or RegisteredPartnership Systems have been recognized by G7 member nations other than Japan, and notingthat same-sex couples married in foreign countries are restricted in terms of the activities they canpursue in Japan because they are unable to obtain a spouse visa in Japan. In the same month, theAustralian and New Zealand Chambers of Commerce in Japan, the British Chamber of Commercein Japan, the Canadian Chamber of Commerce in Japan, and the Ireland Japan Chamber ofCommerce also expressed support for this opinion, and the Danish Chamber of Commerce andIndustry in Japan also subsequently expressed its support (Plaintiffs’ Evidence A112, 131, 132).
(8)

Situation in Japan(i)
In Japan, Shibuya City, Tokyo first introduced a Registered Partnership System
in October 2015, and then Setagaya City, Tokyo introduced a Registered Partnership System in
November of the same year. Since then there has been an increase in the number of local
authorities which have introduced such a Registered Partnership System. As of today, about 60
local municipalities covering over 37 million residents have introduced a Registered Partnership
System (Plaintiffs’ Evidence A75 to 91, 98, 119 to 129, 164 to 170, 271 to 292, 311 to 322, 325).
(ii)
According to a survey on the number of companies that have adopted basic
policies on LGBT rights, such as policies to respect LGBT rights and to prohibit discriminationof people in the LGBT community, there were 173 companies with such policies in 2016 and 364
companies in 2019 (Plaintiffs’ Evidence A387, 388).
(9)

Statistics on Marriage(i)Results of Surveys on Opinions toward Marriage(a)According to the 2005 White Papers on the National Lifestyle issued
by the Cabinet Office, in all age groups from 18 to 49 years of age, approximately 60% of the
respondents answered “yes” to the question of whether it would be better to get married if an
unmarried person is having a child, and fewer than 10% answered “no.” In addition, in every
annual survey from 1982 to 2002, more than 90% of the respondents answered that they
wished to get married one day (Plaintiffs’ Evidence A236).
(b)
According to a 2009 survey conducted by the Ministry of Health,Labour and Welfare, 70% of the respondents agreed or somewhat agreed with the idea that“marriage is an individual freedom” and that “anyone can choose to get married or not.”8However, according to a survey conducted by the same ministry in 2010 targeting people 2049 years of age, 64.5% of the respondents answered either “everyone should get married” or“it is better to get married.” This exceeded the ratio of respondents who answered the samein the U.S. (53.4%), France (33.6%) and Sweden (37.2%) (Plaintiffs’ Evidence A238).
(c)
According to a 2015 survey conducted by the National Institute ofPopulation and Social Security Research, 64.3% of unmarried male respondents and 77.8%
of unmarried female respondents answered that marriage has some benefits. The frequently
cited reasons by those respondents are as follows (respondents were given multiple choices
and could choose up to two options) (Plaintiffs’ Evidence A345):“We can have children and families” (35.8% for men, 49.8% for women);“We will have a place for peace of mind” (31.1% for men, 28.1% for women);“We can meet the expectations of our parents and people around us” (15.9%
for men, 21.9% for women);“We can live with loved ones” (13.3% for men, 14% for women); and“We will gain social trust and equal standing” (12.2% for men, 7% forwomen).
(d)According to the 2015 survey conducted by the National Institute ofPopulation and Social Security Research, 64.7% of male respondents and 58.2% of female
respondents agreed with the statement that “it is not desirable to be single throughout life,”
and 74.8% of male respondents and 70.5% of female respondents agreed with the statementthat “a man and a woman should marry if they live together” (Plaintiffs’ Evidence A345).
(ii)

Statistics on Marriage(a)According to the 2018 Vital Statistics Survey conducted by the
Ministry of Health, Labour and Welfare, although the number of marriages in 2016 was about
half the 1.1 million that took place in 1972 (when the number of marriages was the highest)
and although the annual number of marriages is generally declining, there were still 620,531
marriages in 2016 (Plaintiffs’ Evidence A239).
(b)
According to the same survey, the annual marriage rate in Japan(calculated by dividing the annual number of marriages by the total population and thenmultiplied by 1,000) has typically been declining year on year since 1972, although there havebeen fluctuations. In 2016, the marriage rate decreased to 5%, but still exceeded those inEuropean countries such as Italy (3.2%), Germany (4.9%), France (3.6%), and theNetherlands (3.8%). The percentage of children born out of wedlock was 2.3% in Japan,
significantly lower than in other countries like the U.S. (40.3%), France (59.1%), Germany(35%), Italy (30%), and the UK (47.9%) (Plaintiffs’ Evidence A239).
(c)According to the surveys conducted by the Ministry of Health, Labourand Welfare from 1986 to 2018, the percentage of households with children among all
households declined year by year from 46.2% in 1986 to 22.1% in 2018 (Plaintiffs’ EvidenceA240).
(10)

Statistics of Surveys on Opinions toward Same-Sex Marriage(i)
According to a 2015 survey conducted by a group led by Professor Kazuya
Kawaguchi of Hiroshima Shudo University, 44.8% of male respondents and 56.7% of female9respondents responded that they supported or somewhat supported same-sex marriage. 50% ofmale respondents and 33.8% of female respondents opposed or somewhat opposed same-sex
marriage. Further, 72.3% of respondents in their 20s or 30s and 55.1% in their 40s or 50s
supported or somewhat supported same-sex marriage. Only 32.3% of respondents in their 60s
or 70s supported same-sex marriage, and 56.2% in the same age group were against or somewhat
against same-sex marriage (Plaintiffs’ Evidence A104-2).
(ii)
According to a 2015 survey conducted by the Mainichi Newspapers Co., Ltd.,
38% of male respondents and 50% of female respondents supported same-sex marriage, while
49% of male respondents and 30% of female respondents opposed it (Plaintiffs’ Evidence A105).
(iii)
According to a 2015 survey conducted by the Japan Broadcasting Corporation,
51% answered “yes” to whether same-sex marriage should be allowed, while 41% responded “no”
(Plaintiffs’ Evidence A107).
(iv)
According to a 2015 survey conducted by the Asahi Shimbun Company, 49%
answered “yes” and 39% responded “no” to whether same-sex marriage should be legally
recognized. Among the responses, 70% of respondents between 18 and 39 years of age answered
positively. 42% of those in their 60s gave positive responses and another 42% gave negative
responses. Among those in their 70s or older, 63% responded negatively (Plaintiffs’ EvidenceA109).
(v)
According to the 2018 National Survey on Family conducted by the National
Institute of Population and Social Security Research, 75.1% of respondents completely orsomewhat agreed that some kind of legal guarantee should be granted to same-sex couples, and
25% completely or somewhat disagreed. Further, 69.5% completely or somewhat agreed thatsame-sex marriage should be legally recognized, while 30.5% completely or somewhat disagreed(Plaintiffs’ Evidence A174).
2

Whether the Provisions violate Article 24 or Article 13 of the Constitution (related toIssue (1))(1)
Matters relating to marriage and family require a comprehensive determination basedon various social factors, including national tradition and public sentiment, and consideration of theoverall principles that govern marital and parent-child relationships of the relevant era. Therefore,
the Constitution does not equivocally define the specifics of these matters, and it is more appropriate
for the laws to embody such details. From this viewpoint, it can be said that Article 24, Paragraph 2of the Constitution primarily leaves it to the reasonable legislative discretion of the Diet to establish
specific systems regarding marriage and family matters. Article 24, Paragraph 2 also sets limitations
on such discretion by requesting and providing guidance that such legislation is based on the dignityof individuals and the essential equality of both sexes. Furthermore, Article 24, Paragraph 1 provides
that “marriage shall be based solely on the mutual consent of both sexes and it shall be maintained
through mutual cooperation founded upon the equal rights of husband and wife.” This provision isinterpreted as a clarification 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.
Marriage confers important legal rights such as the right of inheritance of a surviving spouse (Article
890 of the Civil Code) and the legitimacy of children born in wedlock (Article 772, Paragraph 1 et al.
of the Civil Code). Further, while the public has begun to accept diverse family relationships in recent
years, respect for the legal institution of marriage still widely permeates the public’s thinking. As
such, the aforementioned freedom to marry should be accorded proper respect in the light of the
purpose of Article 24, Paragraph 1 of the Constitution (case number 2013 (O) 1079, Supreme Court
10

Grand Bench judgment of 16 December, 2015, Minshu Vol.69, No.8, p.2427 (the “Grand Bench
Judgment on the Unconstitutionality of the Period of Prohibition of Remarriage”)).
Incidentally, Article 24, Paragraph 1 of the Constitution uses the terms “the mutual consent of both
sexes” and “husband and wife,” and Paragraph 2 of the same article uses the phrase “essential equalityof both sexes.” A literal interpretation of these paragraphs would mean that they only provide foropposite-sex marriage. Therefore, we need to examine whether the freedom to marry extends tosame-sex couples.
(2)
When the Meiji Civil Code was enacted, homosexuality was regarded as a kind of
mental disorder or congenital disease that must be prohibited, and homosexual persons must be cured
into heterosexuality (Findings of Fact (2)). In the Meiji Civil Code, although there was no provisionprohibiting same-sex marriage, marriage was understood to be between individuals of the opposite sex
as a matter of course and thus there was no need to explicitly stipulate against same-sex marriage(Findings of Fact (3)(i), (ii)). In the early postwar period, homosexuality was still regarded as aperverted sexual desire, and homosexual persons were seen as mentally deranged (Findings of Fact
(4)(i)). The same was true in foreign countries (Findings of Fact (4)(ii)). When the Constitution
entered into force on May 3, 1947, it did not mention same-sex marriage; and although there is noevidence that same-sex marriage was discussed during the amendment of the Civil Code in the same
year either, it was understood that same-sex marriage was naturally not allowed (Findings of Fact
(5)(i) to (iii)).
In light of the background mentioned above, we understand that under the Meiji Civil Code, same-sex
marriage was not permitted since homosexuality was considered to be a mental disorder, and it was
unnecessary for the law to include any express provisions against it. Furthermore, the perception ofhomosexuality as a mental disorder did not change in the 1947 Amendment of Civil Code. Same-sex
marriage was still considered naturally unacceptable, the same understanding as under the Meiji Civil
Code. Therefore, even in the Constitution promulgated in 1946, Article 24, Paragraphs 1 and 2, andArticle 13 embody the same understanding of homosexuality. Thus, Article 24 does not mention
same-sex marriage. In light of the legislative history above and the fact that Article 24 uses terms
such as “both sexes” and “husband and wife” which implies men and women, it is appropriate toconstrue Article 24 as stipulating opposite-sex marriage and not same-sex marriage. Consequently,
it is reasonable to construe the term “marriage” in Article 24, Paragraph 1 to mean opposite-sex
marriage and the freedom to marry as extending to opposite-sex marriage only. Accordingly, the factthat the Provisions do not recognize same-sex marriage cannot be construed to violate Article 24,
Paragraphs 1 and 2 of the Constitution.
(3)
Furthermore, as explained in paragraph (1) above, since Article 24, Paragraph 2 of theConstitution primarily entrusts the establishment of specific systems concerning marriage and family
matters to the reasonable legislative discretion of the Diet, and Paragraph 1 of the same article defines
the limits of such discretion, we conclude that Article 24 does not guarantee any right to seek aparticular system concerning marriage and family. Obviously, same-sex marriage falls within thescope of matters concerning marriage and family. Considering the nature of Article 24, a specificprovision on marriage and family matters, we also conclude that Article 13 of the Constitution, acomprehensive provision on human rights, does not guarantee any right to seek a specific system forsame-sex marriage and the families created from such unions.
Substantively, as explained in paragraph 3(2)(i) below, marriage is a legal act that, simultaneously andsubsequently, confers various legal effects tied to the status created by a relationship; namely, thecreation of a family relationship between the parties to the marriage and their family, publiccertification of the relationship by means of the family register and legal status comprising a varietyof legal rights and obligations based on that status. Based on the Provisions, we believe that it may
11be necessary to consider creating family relationships or legal statuses for same-sex marriage that differ
from those for opposite-sex marriage, such as the provisions of the Civil Code that assume
reproduction (Article 733 and seq.) and those concerning biological children (Article 772 and seq.).
It is difficult to directly derive a system of same-sex marriage solely through the interpretation of
Article 13 of the Constitution.
Therefore, the Court does not find that the Provisions’ failure to recognize same-sex marriage violates
Article 13 of the Constitution.
3

Whether or not the Provisions violate Article 14, Paragraph 1 of the Constitution(Related to Issue (1))(1)
Article 14, Paragraph 1 of the Constitution sets forth the principle of equality under thelaw, and this provision should be interpreted to prohibit discriminatory treatment under the law unlessthere are reasonable grounds based on the nature of the matter (case number 1962 (O) 1472, Supreme
Court Grand Bench judgment of 27 May, 1964, Minshu Vol.18, No.4, p. 676., case number 1970 (A)1310, Supreme Court Grand Bench judgment of 4 April, 1973, Keishu Vol.27, No.3, p. 265, Grand
Bench Judgment on the Unconstitutionality of the Period of Prohibition of Remarriage, etc.).
As described in paragraph 2(1) above, since matters relating to marriage and family require acomprehensive determination based on various social factors, including national tradition and public
sentiment, and consideration of the overall principles that govern marital and parent-child relationshipsof the relevant era, Article 24, Paragraph 2 of the Constitution grants the legislature the primary
responsibility to establish specific systems relating to marriage and family matters using its reasonablelegislative discretion. In addition, as described in paragraphs 2(2) and (3) above, given that Article
24 and Article 13 of the Constitution should not be interpreted as guaranteeing the right to same-sex
marriage or the right to a specific system pertaining to same-sex marriage, the legislature has broad
discretion in determining marriage and family matters in relation to same-sex couples.
(2)(i)
Under the Family Register Act, a marriage shall be registered upon the filing ofa notification (Article 74 of the Family Register Act) and when a marriage notification is filed, a
new family register shall be created for the married couple (Article 16, Paragraph 1 of the Family
Register Act), in which each person in the family register shall be described as husband or wife
(Article 13, Items 1 and 6 of the Family Register Act). Further, the married couple shall file a
notification upon the birth of a child (Article 49, Paragraph 1 of the Family Register Act) and thechild shall be entered in the family register of the parents (Article 18 of the Family Register Act).
The Family Register Act also stipulates that an original of the family register shall be kept at thecity office (Article 8, Paragraph 2 of the Family Register Act), and public certification of therelationships between the husband and wife and between the parents and children is conferred by
the family register. In addition, the Civil Code contains the following provisions on marriage(Article 731 et seq.): marriage shall take effect upon the filing of the notification pursuant to the
Family Register Act (Article 739, Paragraph 1 of the Civil Code), and persons within the third
degree of affinity are defined as relatives (Article 725, Item 3 of the Civil Code). The Civil Codealso contains provisions regarding the obligation to support relatives living together (Article 730
of the Civil Code), the marital property system between husband and wife (Article 755 et seq. of
the Civil Code), the obligation of husband and wife to live together, cooperate and support eachother (Article 752 of the Civil Code), the presumption of legitimacy of children born to the couple(Article 772 of the Civil Code), the parental authority with respect to children of the couple (Article
818 et seq. of the Civil Code), and the right of inheritance of spouses (Article 890 of the Civil
Code). The Civil Code thus confers legal status comprising legal rights and obligations basedon the status of the parties to the marriage and the family.
12Based on the foregoing, marriage is a legal act that, simultaneously and subsequently, confers
comprehensive legal benefits (collectively, the “Legal Benefits of Marriage”) tied to the status
created by a relationship, namely the creation of a family relationship between the parties to themarriage and their family, public certification of the relationship by means of the family registerand legal status comprising a variety of legal rights and obligations based on that status.
(ii)
The Provisions provide only for opposite-sex marriage. Heterosexual couples
can choose either to marry and avail themselves of the Legal Benefits of Marriage, or not to marryand not receive the Legal Benefits of Marriage. But same-sex couples cannot marry even if theywant to, and they cannot avail themselves of the Legal Benefits of Marriage. As such, there isdifferential treatment between heterosexual persons and homosexual persons in this respect(“Differential Treatment”).
Based on the foregoing, as described in paragraph (1) above, although the legislature has broad
discretion in determining marriage and family matters in relation to homosexual couples, it isnecessary to consider whether the Differential Treatment has a reasonable basis and is within thescope of the above-mentioned legislative discretion of the legislature.
(iii)
In this respect, the Defendant argues that since even homosexual persons canmarry a person of the opposite sex, there is no differential treatment by sexual orientation.
Certainly, even homosexual persons may marry a person of the opposite sex under the Provisions.
However, sexual orientation refers to the attraction a person feels towards another person in asensual, emotional or sexual sense. Such feeling of love and sexual attraction towards a personof the opposite sex is heterosexuality, and such feeling of love and sexual attraction towards a
person of the same sex is homosexuality. Furthermore, the fundamental essence of marriage isthat both sexes have a sincere intention to live together for the purpose of lasting spiritual andphysical union (see case number 1986 (O) 269, Supreme Court Grand Bench judgment of 2
September, 1987, Minshu Vol.41, No.6, p.1423). In light of the foregoing, even if homosexual
persons can legally marry a person of the opposite sex who is not aligned in sexual orientation,such marriage, in most circumstances, would not embody the fundamental essence of marriage
for a homosexual person, and it is difficult to consider that this kind of marriage would be amarriage of the kind contemplated by Article 24 of the Constitution and the Provisions.
Furthermore, the desire to marry (Article 742, Item 1 of the Civil Code) can be construed as thedesire to seek to establish a relationship that is considered to be a true marriage under social norms(see case number 1967 (O) 1108, Supreme Court Second Petty Bench judgment of 31 October,
1969, Minshu Vol.23, No.10, p.1894). Accordingly, even if a homosexual person marries a
person of the opposite sex who is not the object of his/her love or sexual attraction, it would be
difficult to find that this kind of marriage embodies the desire to marry as mentioned above, andthere would be doubts as to whether this kind of marriage would be a valid marriage at all.
In the light of sexual orientation and the fundamental essence of marriage mentioned above, it isobvious that even if a homosexual person can marry a person of the opposite sex who is not aligned
in sexual orientation, homosexual persons cannot be regarded as having the same legal benefits asheterosexual persons. The Defendant’s argument that there is no differential treatment by sexual
orientation cannot be accepted.
(3)

Next, this Court examines whether the Differential Treatment has a reasonable basis.

(i)
Homosexuality is not currently regarded as a mental disorder. Although thecauses of sexual orientation have not been discovered, it is possible to conclude that it isestablished knowledge that sexual orientation cannot be chosen at one’s own will or changed at
one’s own will or by medical treatment. (Findings of Fact (1)(i), (6)). As such, it can be said
13

that sexual orientation is a kind of personal characteristic which is determined irrespective of one’s
own will and is equivalent to sex and race.
Whether or not differential treatment based on matters that cannot be chosen or changed at one’s
own will has a reasonable basis must be carefully examined based on whether or not suchdifferential treatment is truly compelling in light of, among others, the existence of any legislative
context and the specifics of that context, the purpose of the legislation and the content of therestricted legal rights.
(ii)
At present, there is widespread respect for civil marriage (see case number 2012(Ku) 984, 985 Supreme Court Grand Bench judgment of 4 September, 2013, Minshu Vol.67, No.6,
p.1320). This is demonstrated by the following circumstances: (i) the system of marriage has
been consistently upheld from the Meiji Civil Code to the Current Civil Code; (ii) while thenumber of married couples has been decreasing each year, approximately 600,000 couples still
marry every year and, compared with other countries, the marriage rate is high and the rate ofchildren born out of wedlock is low (Findings of Fact (9)(ii)(a) to (c)); (iii) in several surveys, asignificant majority of respondents supported marriage (Findings of Fact (9)(i)(a) to (d)); (iv) the
Cabinet has also recognized the public’s widespread respect for legal marriage (Plaintiffs’
Evidence A261); and (v) under applicable laws and regulations, there are many cases where aperson who has not filed a notification of marriage and is in circumstances similar to a de facto
marital relationship is treated in the same manner as married persons (Article 3, Paragraph 2 of
the Child Allowance Act; Article 5, Paragraph 1, Item 1 of the Act on Support for Crime Victims,
etc., Such as Payment of Crime Victims Benefit; Article 3, Paragraph 3 of the Child Support
Allowance Act; Article 6, Paragraph 1 of the Act on Welfare for Single Mothers, Single Fathers
and Widows; Article 3, Paragraph 2 of the Employees’ Pension Insurance Act; Article 5,
Paragraph 7 of the National Pension Act, etc.). In this regard, the system of marriage has
survived, even though it is legally possible to provide persons who are in circumstances similar toa de facto marital relationship the same rights and obligations as married persons.
Based on the foregoing, it should be construed that it is a legal interest to enjoy, through marriage,
the Legal Benefits of Marriage.
It can be said that enjoying the Legal Benefits of Marriage is an important legal interest forheterosexual persons, since Article 24 of the Constitution protects marriage as a system to realize
such legal interest. Considering that the only difference between heterosexual and homosexual
persons is their sexual orientation and sexual orientation cannot be chosen or changed at one’s
own will, it should be construed that there is no basis for differentiating between heterosexual andhomosexual persons with respect to the value of their interest to enjoy the Legal Benefits ofMarriage. Both heterosexual and homosexual persons must be able to equally enjoy such legal
interest.
Accordingly, the Differential Treatment can be regarded as distinguishing between heterosexualand homosexual persons in terms of the interest to enjoy the Legal Benefits of Marriage, which isan important interest that should be equally enjoyed irrespective of whether one is heterosexual or
homosexual.
(iii)
Under the Meiji Civil Code, marriage was considered as a union between a man
and a woman for the purpose of living jointly for life, consistent with the moral and social
requirements (Findings of Fact (3)(ii)). Likewise, when the Current Civil Code was enacted in
1947, marriage was interpreted to mean the spiritual and physical union between a man and awoman to form a marital relationship consistent with social norms, consistent with how society
generally perceived a marital relationship (Findings of Fact (5)(ii)). In Japan, same-sex marriage
14

has been naturally unrecognized in light of such social norms without any express provisionprohibiting same-sex marriage (Findings of Fact (3)(ii), (5)(ii), (iii)).
That is because, under the Meiji Civil Code, homosexuality was considered a type of mental
disorder or a congenital disease that should be treated and prohibited (Findings of Fact (2)) andeven after the Current Civil Code was enacted in 1947, homosexuality was still considered amental disorder that should be treated and prohibited (Findings of Fact (4)(i) to (iii)). Even if
homosexual couples wished to marry, this desire was construed to arise from a mental disorder, as
homosexuality was considered a mental disorder, and homosexual couples were considered
incapable of consummating normal marital relationships consistent with social norms. Therefore,
it was unnecessary to expressly prohibit same-sex marriage by laws and regulations.
However, by around 1992, it became established knowledge in Japan and internationally thathomosexuality is not a mental disorder (Findings of Fact (6)(i), (ii)). In addition, it became clearthat sexual orientation cannot be chosen or changed by one’s own will, neither can it be changed
after birth (Findings of Fact (1)(i), (6)(i), (ii)). As such, we can conclude that there is no longer
any scientific or medical basis for denying same-sex marriage based on the belief thathomosexuality is a mental disorder.
(iv)(a)
The Current Civil Code stipulates provisions regarding married couples
and their children, including the provisions concerning children biologically born to married
couples (Article 772 et seq. of the Civil Code); the provisions concerning parental authority(Article 818 et seq.). Further, the Family Register Act stipulates matters such as the filingof a notification at the time of the birth of a child (Article 49, Paragraph 1) and entry of achild into the family register (Article 18). Considering these provisions, the Provisions canbe construed to have an important purpose of providing legal protection to the relationshipbetween cohabitating heterosexual couples who bear and raise children.
However, under the Current Civil Code, the legal status of married couples does not vary
based on whether or not they have children, are capable of bearing children, or have theintention to have children. It should be left to the decision of an individual whether to bearand raise children, and the couples’ choice of not having children should also be respected.
Also, the main purpose of the marriage system under the Meiji Civil Code was not to bear orraise children but to provide legal protection for the cohabitating relationship of married
couples (Findings of Fact (3)(iii)). These aspects of the Meiji Civil Code do not appear tohave been amended when the Current Civil Code was enacted in 1947 (Findings of Fact
(5)(iii)). In light of these facts, regardless of whether a married couple has a child, or has
the intention or ability to have a child, the protection of the cohabitating relationship ofmarried couples itself should be considered as an important purpose of the Provisions.
Marriage for purposes other than having a child has become more important in recent years.
This is demonstrated by the fact that the number of households with children has been
decreasing year by year (Findings of Fact (9)(ii)(c)), the number of marriages still exceeds
600,000 per year and is relatively high compared to other countries (Findings of Fact (9)(ii)(a),(b)), and there appear to be many people who believe that there are advantages of marriage
other than having children (Findings of Fact (9)(i)(c)).
(b)
The above-mentioned purpose of the Provisions is legitimate, but it
cannot be construed as a reason to deny all of the Legal Benefits of Marriage for homosexual
couples.
In other words, the essence of marriage is that both sexes have the sincere intention to live
jointly for the purpose of lasting spiritual and physical union. Considering that the15difference between heterosexuality and homosexuality is only the difference of sexual
orientation, homosexual individuals can live jointly with individuals of the same sex who
share the same sexual orientation, while maintaining the essence of marriage, as between the
opposite-sex married couples. As mentioned in paragraph (iii) above, the Provisions did notprovide for same-sex marriage because at the time of the enactment of the Current Civil Codein 1947, homosexuality was regarded as a mental disorder, and thus homosexual individuals
were considered to be incapable of consummating normal marital relationships in accordancewith social norms. Since this view has been completely repudiated now, it is not possible tointerpret the Provisions’ denial of all legal protection to cohabitating homosexual couples as
justifiable, where the essence of their relationship is the same as the essence of marriage
between heterosexual persons. That is because, if we interpret the Provisions as denying all
legal protection to cohabitating same-sex couples, it would mean that the Provisions are basedon incorrect facts in denying the relevant benefits to homosexual persons.
(c)This is the same in the light of the purpose of Article 24 of theConstitution, and as mentioned in paragraph 2(2) above, the reason why the Provisions only
provide for the marriage of the opposite sex is the same as that explained in paragraph (b)above. In addition, despite the fact that Article 24 of the Constitution only provides for themarriage of opposite sexes and that it does not refer to same-sex marriage, Article 24 of theConstitution cannot be construed to deny all legal protection to cohabitating same-sex couples
where the essence of their relationship is the same as the essence of marriage for heterosexual
couples.
(d)
As mentioned above, the Provisions and Article 24 of the Constitution,in light of their purposes, cannot be a basis for denying all legal protection to homosexual
couples.
(v)
In Japan, Shibuya City, Tokyo, first introduced the Registered Partnership
System in October 2015. Since then, the number of local authorities which have introduced theRegistered Partnership System has increased. Today, around 60 local authorities covering 37
million residents have introduced a Registered Partnership System (Findings of Fact (8)(i)). In
addition, although there are differences across age groups, survey results show that the percentageof people in support of legally recognizing same-sex marriage has increased from 2015 to 2018.
In 2015, the number of people supporting same-sex marriage already reached around 50%. In
particular, people in younger generations hold more positive views towards same-sex marriage(Findings of Fact (10)(i) to (v)). Further, 75% of the respondents to the survey agreed that somekind of legal guarantee should be granted to same-sex couples (Findings of Fact (10)(v)). The
number of companies in Japan that have adopted basic policies on LGBT rights, such as policies
to respect LGBT rights and to prohibit discrimination against people in the LGBT community,
also doubled between 2016 and 2018 (Findings of Fact (8)(ii)).
Although these facts do not represent the views of all people, they show that public awareness ofthe need to eliminate differential treatment on the basis of sexual orientation has increased, andthat such public awareness is likely to continue to increase into the future. This should be taken
into consideration in deciding whether there is any reasonable basis for the Differential Treatment.
(vi)
Since it was recognized that homosexuality is not a mental disorder, many
countries have enacted legislation to legalize same-sex marriage or to introduce the RegisteredPartnership System for the same-sex couples. While courts in some jurisdictions have held thatmarriage is limited to the opposite sex, others have held that the failure of a legal system torecognize same-sex marriage is unconstitutional. Those examples can be found in many
developed countries, such as the G7 member states (Findings of Fact (7)(i)). Foreign16

organizations in Japan also express concerns that their foreign employees’ activities in Japan havebeen restricted (Findings of Fact (7)(ii)).
Since foreign countries and their organizations differ from Japan in their culture, values andreligious views on marriage and romantic relationships, their views cannot directly influence ourcountry’s approach to providing legal protection to same-sex couples. However, those facts
show that, since it has become commonly accepted that homosexuality is not a mental disorder,
the growing demand in other countries and regions to eliminate the differential treatment between
same-sex couples and heterosexual couples should be a taken into consideration in deciding
whether there is any reasonable basis for the Differential Treatment.
(vii) (a)Until around 1980, in Japan and internationally, homosexuality wascommonly perceived as a mental disorder that must be prohibited. It was also a widely heldview in the area of education (Findings of Fact (4)(iii)). According to a recent survey, while
the majority of people supported permitting same-sex marriage by law, many people in older
age groups of 60 and above were against it (Findings of fact (10)(i), (iv)). The prevalentview from the Meiji period until recently that homosexuality was a mental disorder whichshould be cured or prohibited is one of the reasons why national consensus has yet to bereached on permitting same-sex marriage. It is also one of the reasons why people form
negative opinions and views on same-sex marriage. Now, while this view has been rejectedboth scientifically and medically, many people continue to form negative opinions and viewson same-sex marriage due to this historical background. In light of this, it must also be taken
into consideration that not an insignificant number of people still hold negative opinions andvalues toward same-sex marriage. In particular, since the enactment of the Meiji Civil Code,marriage has been defined by social customs and socially accepted ideas (Findings of Fact
(3)(ii), (5)(ii)). Therefore, when exercising its legislative discretion on whether to permit
same-sex marriage in the same way oppose-sex marriage is permitted, the legislature can take
into consideration that not an insignificant number of people hold negative views towards
same-sex marriage.
(b)
However, as we explained repeatedly, it is now established knowledge
that homosexuality is not a mental disorder in any sense and cannot be chosen or changed at
one’s own will. Homosexual persons are only a minority in our country, and heterosexual
persons account for more than ninety percent of the population (Findings of Fact (1)(ii)).
Because of this, if we do not provide homosexual persons any of the important Legal Benefitof Marriage because the heterosexual majority does not understand or tolerate homosexuality,
this is too severe a result for homosexual persons, who could not choose their sexual
orientation, considering the legal rights heterosexual persons can enjoy. This is true eventaking into consideration that extending legal protection to homosexual persons would moreor less change our country’s traditional view of the family.
As explained in paragraph (v) above, there is increasing public awareness of the need toeliminate discriminatory treatment on the basis of sexual orientation and such publicawareness will continue to increase into the future, and similar trends are seen in othercountries as well. Considering these facts, while the negative opinions on same-sex
marriage explained in paragraph (a) above can be one factor that the legislature can take into
account in exercising its discretion, it should only be given limited weight in deciding whether
there is any reasonable basis for not providing homosexual persons with the legal means toenjoy, even partially, the Legal Benefits of Marriage.
(viii) The Defendant argues that there is no disadvantage to same-sex couples because
they can enjoy the same legal benefits as those attained from marriage through contracts or wills.
17

However, as described in paragraph (2)(i), marriage is a legal act which confers comprehensive
legal benefits tied to such family relationship either simultaneously or subsequently, sincemarriage creates a family relationship between the parties to the marriage and their respective
families, publicly certifies such relationship through the family register, and grants a variety oflegal rights and obligations corresponding to that relationship. The nature of Legal Benefits ofMarriage is in the creation and the public certification of the family relationship and in the grantof legal status corresponding to such family relationship. As a result, marriage cannot be
substituted by contracts or wills which create individual debtor-creditor relationships but do notconfer a family relationship. The Civil Code does not present contracts or wills as alternatives
to marriage in the first place. While heterosexual couples can create rights and obligations
through contracts or wills in addition to marriage, same-sex couples do not have the means tomarry. It is obvious that same-sex couples do not have the same legal means available toheterosexual couples. In addition, with regard to the right of inheritance of a surviving spouse(Article 890 of the Civil Code), one of the Legal Benefits of Marriage, although same-sex couples
can transfer property upon death by a testamentary gift or a gift on donor’s death, these means aredifferent from the right of inheritance of a surviving spouse because they can be subject to theclaim for forced shares (Article 1046 of the Civil Code). With regard to the right of short-term
residence of a spouse (Article 1037 of the Civil Code), a contract between the parties cannot be
asserted against a third party. While contracts or wills can confer some legal benefits, theycannot confer the same level of legal benefit as the Legal Benefits of Marriage.
Based on the foregoing, the purpose and legal effects of a contract or a will differ from marriage.
Creating individual debtor-creditor relationships through contracts or wills is not substitutablewith the Legal Benefits of Marriage. Therefore, we reject the Defendant’s argument above.
(4)
Taking into consideration the circumstances described in paragraph (3), we now
consider whether or not there is any reasonable basis for the Differential Treatment.
As described in paragraph (3)(i), the Differential Treatment in this case is based on sexual orientation—
something that cannot be chosen or changed at one’s own will. Therefore, we need to carefully
consider whether there is any reasonable basis for the Differential Treatment in this case. As
discussed in paragraph (3)(ii), the Legal Benefits of Marriage are benefits conferred by law, and theyshould be equally available to both same-sex couples and heterosexual couples and the Differential
Treatment here concerns those benefits. The Differential Treatment is derived from the Provisions.
As explained in paragraphs (3)(iii) and (3)(iv), while the purpose of the Provisions is justifiable, theview at the time of the 1947 Amendment of the Civil Code that homosexuality was a mental disorderand must be prohibited was completely rejected by around 1992. In light of this, the Provisions’failure to recognize same-sex marriage and Article 24 of Constitution cannot be the reason to deny all
legal benefits to same-sex couples. Notwithstanding this, the Provisions create a distinction between
homosexual persons and heterosexual persons in relation to whether they can marry someone thatmatches their sexual orientation.
As described in paragraph 2(3) above, the system for marriage and family of same-sex couples cannot
be determined unequivocally. Since it is a system for same-sex couples, it inevitably will not (andcannot) be exactly the same as the system for marriage and family of heterosexual couples. Further,
the specific system for same-sex marriage cannot be derived from the interpretation of the Constitution.
Therefore, we must wait for the discretionary judgement of the legislature. Additionally, as describedin paragraph 2(1) above, a somewhat significant number of citizens hold negative opinions and values
toward same-sex marriage. Marriage has been defined by social customs and norms since the Meiji
Civil Code, and matters pertaining to marriage and family should be determined by making acomprehensive examination of the overall principles governing marital and parent-child relationships
18

of the relevant era, as well as the various social factors including national tradition and public sentiment.
Therefore, if the legislature takes the matters above into consideration within its broad legislative
discretion pertaining to the marriage and family of same-sex couples and determines that theProvisions do not apply to same-sex couples, it does not automatically mean that such determination
should be considered as lacking a reasonable basis.
However, as described above, the only difference between heterosexual persons and homosexual
persons is their sexual orientation, which cannot be chosen or changed by one’s own will. In light of
this, there should be no difference in legal benefits that persons of any sexual orientation can enjoy.
Nevertheless, the Provisions fail to make available any legal means to homosexual persons to enjoy,even partially, the Legal Benefits of Marriage. As described in paragraphs (3)(v) to (vii) above, when
considering whether the Differential Treatment is reasonable, the increasing number of citizens who
hold positive opinions on granting legal protection to homosexual couples, the growing desire toeliminate the distinction between homosexual persons and heterosexual persons, and the similar trend
in other countries to eliminate differential treatment based on sexual orientation should be taken into
account. On the other hand, the fact that not an insignificant amount of people hold negative opinions
and values toward same-sex marriage should be given limited weight in deciding whether it isreasonable to not provide legal means to enjoy even a part of the Legal Benefits of Marriage tohomosexual persons.
The Provisions provide the institution of marriage to heterosexual persons, but fail to offer tohomosexual persons any legal means to enjoy, even partially, the Legal Benefits of Marriage. Basedon the foregoing, we must conclude that, even accepting its broad legislative discretion, the legislature
has exceeded its discretion. The Differential Treatment, to that extent, must be considered a
discriminatory treatment that lacks any reasonable basis.
Accordingly, the Provisions, to the extent described above, violate Article 14, Paragraph 1 of theConstitution.
4

Issue (2) (whether, for the purpose of Article 1, Paragraph 1 of the State Redress Act,the fact that the Provisions have not been amended or repealed should be consideredillegal)(1)
Article 1, Paragraph 1 of the State Redress Act provides that when public officials, in
exercising public authority of the State or of a public entity, have breached a legal obligation they owe
to an individual citizen and inflicted damage on that citizen, the State or the public entity shall be
responsible for compensating that citizen. In determining whether the Diet members’ legislative
action or inaction is illegal in the context of this paragraph, the key question is whether the Diet
members’ conduct in the legislative process breached a legal obligation they owe to individual citizens,
not whether the results of such legislation is constitutional. Further, the evaluation of the legislative
conduct above should, in principle, be left to the political judgement of the citizens. As such, even if
a particular piece of legislation violated the Constitution, the legislative action or inaction of the Diet
members should not be automatically deemed illegal in the context of this paragraph for that reason
alone.
However, in cases such as where the Diet neglects, for a long time and without justifiable reasons, totake legislative measures such as revising or repealing the provisions of a law even though it is clearthat those provisions are in violation of the Constitution as they restrict rights and interests that are
constitutionally guaranteed or protected without reasonable grounds, the legislative inaction of the Diet
members should, on an exceptional basis, be deemed to be unlawful for the purpose of applying theprovisions of Article 1, paragraph 1 of the State Redress Act, as the actions of the Diet members in thelegislative process constitute a breach of the legal obligations they bear under their duties stated above19(see case number 1978 (O) 1240, Supreme Court, First Petty Bench judgment of 21 November 1985,
Minshu Vol. 39, No. 7, p. 1512, and case numbers 2001 (Gyo-Tsu) 82 and 83 and 2001 (Gyo-Hi) 76
and 77, Supreme Court, Grand Bench judgment of 14 September 2005, Minshu Vol. 59, No. 7, p. 2087).
(2)This Court now examines whether the fact that the Provisions have not been amended
or repealed should be considered illegal in the context of the application of Article 1, Paragraph 1 of
the State Redress Act.
Because at the time of the 1947 Amendment of Civil Code, homosexuality was perceived as a mental
disorder (Findings of Fact (2), (4)), this Court cannot find the Provisions to be unreasonable eventhough they did not provide any specific legal protection to same-sex couples.
The perception that homosexuality is a mental disorder has since been rejected in the United States inaround 1980, and by the World Health Organization in around 1992. We acknowledge that, by around
1992, Japan also rejected the perception of homosexuality as a mental disorder (Findings of Fact (6)(i),(ii)).
Although homosexuality as a mental disorder has been scientifically and medically rejected, theintroduction of the Registered Partnership System or same-sex marriage in foreign countries did not
begin to unfold until after 2000 when the Netherlands introduced their same-same marriage system(Findings of Fact (7)(i)(b)). Japan’s adoption of the Registered Partnership System by local
authorities further lagged behind, and only began after Shibuya City, Tokyo, introduced the RegisteredPartnership System in October 2015 (Findings of Fact (8)(i)).
In addition, according to recent surveys, although the majority of people in younger age groups in their
20s and 30s hold positive views on providing legal protections to same-sex marriages or to same-sex
couples, the majority of people in the relatively older age group of 60 and above hold negative viewson the same (Findings of Fact (10)(i), (iv)). Accordingly, we infer that the positive views towards
same-sex marriage did not become the majority view until relatively recently.
Furthermore, there are various approaches to granting same-sex couples the Legal Benefits of Marriage,
and it is difficult to say that the specifics of the same-sex marriage system are unequivocally obvious.
As mentioned in paragraph 3(1) above, the determination of the specific system to adopt should be left
to the Diet’s reasonable legislative discretion. Evidence in this case shows that same-sex marriage
was first mentioned in the Diet on November 17, 2004 during witness testimony in the House ofCouncilors’ Research Commission on the Constitution. However, there is no indication that samesex marriage was discussed during that Research Commission (Plaintiffs’ Evidence A260). We
recognize that actual discussions on same-sex marriage did not begin in the Diet until 2015 (Plaintiffs’
Evidence A11, 12, 60 to 62, 261, 267).
In addition, as explained in paragraph 3(3)(vii) above, not an insignificant number of citizens holdnegative opinions and views toward providing legal protections to same-sex marriages andhomosexual couples.
Further to these considerations, since the 1947 Amendment of Civil Code, there has not been any
judicial decision on whether the lack of a system for same-sex marriage is unconstitutional. As such,
the Court must conclude that it was not feasible for the Diet to immediately recognize that theProvisions violated Article 14, Paragraph 1 of the Constitution.
In conclusion, although the Provisions were unconstitutional to the extent explained in paragraph 3(4)above, for the purpose of Article 1, Paragraph 1 of the State Redress Act, we cannot conclude that theDiet neglected, for a long time and without justifiable reasons, to take legislative measures such asrevising or repealing the provisions of a law even though it is clear that those provisions are in violation20

of the Constitution as they restrict rights and interests that are constitutionally guaranteed or protectedwithout reasonable grounds.
Accordingly, in the context of the application of Article 1, Paragraph 1 of the State Redress Act, thefact that the Provisions have not been amended or repealed is not illegal.
IV

Conclusion

As stated above and without having to make findings on the other issues, this Court has determinedthat there is no basis to uphold the Plaintiffs’ claims. The Plaintiffs’ claims shall therefore bedismissed.
The judgment is rendered as stated in the decision.

Second Civil Division, Sapporo District Court
Chief Justice

Tomoko Takebe [signature]

Justice

Ichita Matsunaga [signature]

JusticeYuya Kawano [signature]

21

(Exhibit 1)
List of Parties[Plaintiffs’ identities omitted for privacy reasons]Attorney for the six Plaintiffs above:
Same as above Fumiyasu Tsunamori
Same as above Fumiko Suda
Same as above Hiromi Minagawa
Same as above Fumio Ueda
Same as above Takuya Hayashi
Same as above Yusuke Takahashi

Takeharu Kato

1-1-1 Kasumigaseki, Chiyoda-ku, Tokyo
Defendant: The State
Representative of the same, Minister of Justice:Appointed agent of the same:
Kohei Asano
Same as above Takahisa Suto
Same as above Daisuke Mishima
Same as above Yuji Yamamoto
Same as above Masafumi Nakano
Same as above Yuna Tayu
Same as above Akihide Hosoya

Yoko Kamikawa

22

(Exhibit 2)
Summary of the Parties’ Claims
1Issue (1): Whether the Provisions violate Article 13, Article 14, Paragraph 1, or Article
24 of the Constitution(1)

Summary of the Plaintiffs’ Claims(i)

The Provisions violate Articles 24 and 13 of the Constitution

Article 24, Paragraph 1 of the Constitution guarantees the freedom of marriage, and this guarantee
extends to marriages between couples of the same sex. Freedom of marriage is guaranteed
because this is essential for the respect for individuality, which is a foundational value of theConstitution, and more specifically, because it holds value as a form of self-actualization ofindividuals, as well as being the foundation of both democracy and a just and fair society. Thatis, in modern society, the state takes on the role of defining and giving effect to requirements formarriage through its laws. It may therefore be said that civil marriage is a system whereby thelaw sets forth the requirements and effects of, and sanctions and authenticates, the continued
cohabitation between two persons. The Constitution also anticipates the existence of civil
marriage (Article 24, Paragraphs 1 and 2 of the Constitution), and the Civil Code grants various
legal and economic benefits comprehensively, such as the obligation of mutual cooperation of theparties (Article 760 of the Civil Code1), a system for fair and equal realization of property rights(Article 882 et seq.), and distribution of property (Article 768), based on the characteristics ofmarriage which is a life of cohabitation founded upon an intimate relationship, and the parties’
relationship is strengthened by these benefits and obligations. Also, civil marriage plays animportant role in that the bond between the parties is legally and socially recognized as that whichforms a family, and such bond is strengthened through this recognition. These values and theirimportance apply to two persons of the same sex, just as much as they apply to persons of the
opposite sex.
In addition, Article 24 of the Constitution does not prohibit the marriage of persons who are legallyof the same sex. Specifically, the purpose of this Article is to repudiate the family system thatexisted under the pre-war civil code and extend the principle of respect for individuality tomarriage, and it may be said that such purpose also extends to same-sex marriages.
In light of the above, the Provisions not recognizing same-sex marriages unjustly infringe on thefreedom of marriage and violate Article 24, Paragraphs 1 and 2, and Article 13 of the Constitution.
(ii)

The Provisions violate Article 14, Paragraph 1 of the Constitution(a)Sexual orientation cannot be controlled by the will of an individual.
Therefore, the difference in treatment, whereupon sexual orientation determines whether anindividual is able to marry or not, should be categorized as discrimination on the basis of sex
or social status prohibited by the latter half of Paragraph 1 of Article 14 of the Constitution,and the reasonableness of such difference in treatment should be subject to strict scrutiny.
Moreover, the benefits of marriage that are denied to homosexual persons as a result of suchdifference in treatment are guaranteed by the Constitution as part of the freedom of marriage.
Taking into account that such benefits are directly restricted and homosexual persons
1

Translator’s note: This appears to be an error. The correct article number is Article 752 of the Civil Code.

23

constitute a small minority in society who may not seek redress through the democratic
process, the reasonableness of such difference in treatment should be subject to strict scrutiny.
(b)
While the Provisions recognize the marriage of heterosexual persons
according to their sexual orientation, they do not allow for the marriage of homosexual
persons on the same basis. The freedom of marriage encompasses marriage between
persons of the same sex as discussed in item (i) above, and the difference in treatment as noted
above concerns the difference as to whether an individual may marry according to his/her
sexual orientation. Therefore, the Provisions violate Article 14, Paragraph 1 of theConstitution.
(c)
In addition, even if it is assumed that the institution of marriage
includes the purpose of the legal recognition of a parent-child relationship, it is clear that thisis not its sole purpose. Rather, marriage centers on the continued cohabitating relationshipgrounded on an emotional connection between the parties, and the main purpose of marriage
is to give formal recognition to, legally govern, and protect, such relationship.
The sense of respect for civil marriage is prevalent amongst Japanese citizens. Further, inJapan, while it may be said that legally married couples are formally recognized and receive
social approval, social significance and necessity also exist in the very act of couples publicly
announcing their relationship and marital status. However, in Japan, homosexual couples
cannot receive formal certification, and as a result of the lack of such social recognition as
couples, they cannot be socially accepted. In addition, while heterosexual couples enjoy
various statutory rights and benefits accompanying marriage, as well as de facto benefits suchas the ability to give consent for medical treatment for their partners, homosexual couples are
not granted any of these rights or benefits.
At the time of the enactment of the Constitution and the Provisions, the common belief wasthat homosexuality was a mental disorder and was not morally acceptable. However, it has
now been established that homosexuality is not a mental disorder, and although the factorsthat determine sexual orientation are still debated, it has at least become clear that sexual
orientation is not determined by the individual’s own will. Consequently, there are nojustifiable reasons for granting the above official recognition and the accompanying rights
and benefits to heterosexual couples but not to homosexual couples.
Moreover, a growing number of foreign countries have begun to pass legislation recognizing
same-sex marriage or establishing registered partnership systems for homosexual couples.
Foreign countries have also expressed concerns about discrimination based on sexual
orientation, and in Japan, many local authorities (meaning ordinary local public entities andspecial wards) have also introduced registered partnership systems that formally recognize
relationships between homosexual couples. It may therefore be said that recognition ofsame-sex marriage has become widespread. In current society, it is common knowledge that
there are persons with various sexual orientations including not only heterosexuality but also
homosexuality. In addition, the number of homosexual couples who are utilizing theregistered partnership systems introduced by the abovementioned local public entities has
also increased.
As discussed above, once heterosexual couples file a marriage notification, the Provisions
grant formal certification, providing psychological, social, legal, economic, and de facto
benefits, while not granting such formal certification or benefits to homosexual couples.
There are no reasonable grounds for such difference in treatment, and therefore the Provisions
violate Article 14, Paragraph 1 of the Constitution.
24

(2)

Summary of the Defendant’s Claims(i)

The Purpose of the Institution of Marriage

The institution of marriage in Japan has been linked to reproduction since the Meiji Period, andhas developed as a system that legally and officially recognizes the union between a man and awoman. This understanding has remained unchanged even after the establishment of the current
Constitution, and marriage is a system established to protect the cohabitating relationship in which
men and women bear and raise children.
(ii)

The Provisions Violate neither Article 24, Paragraphs 1 and 2, nor Article 13 of
the Constitution

Article 24, Paragraph 1 of the Constitution uses the phrases “both sexes” and “husband and wife.”
It is clear that the Constitution presumes marriage as being between a man and a woman and not
between persons of the same sex and it should be construed that said Paragraph does not mandate
the guarantee for same-sex marriage to the same extent as opposite-sex marriage.
In addition, it is not clear whether Article 13 of the Constitution guarantees the right to selfdetermination, and neither are the details of the rights to self-determination clear. Furthermore,even if some right to self-determination concerning marriage can be conceived, the current legal
system of marriage has been constructed in accordance with Article 24, Paragraph 2 of theConstitution, which requires the establishment of an institution of marriage as a union between a
man and a woman, which in turn is premised on Article 24, Paragraph 1 of the Constitution. It
is clear that the right to seek the establishment of a new legal system in which a person of the samesex can be chosen as a partner in marriage goes beyond the framework of the existing legal system
and is not included in the right to self-determination. The current institution of marriage under
the Provisions was established in accordance with the Constitution, and it cannot be construed thatthe right to seek the establishment of a new institution of marriage beyond this is guaranteed by
Article 13 of the Constitution.
Therefore, the Provisions violate neither Article 24, Paragraphs 1 and 2, nor Article 13.
(iii)

The Provisions do not Violate Article 14, Paragraph 1 of the Constitution

As noted in item (ii) above, there is no guarantee of same-sex marriage in Article 24, Paragraph 1of the Constitution and, because of this, the failure to recognize same-sex marriage cannot beinterpreted as a violation of Article 14, Paragraph 1 of the Constitution.
The Provisions do not identify sexual orientation as part of the standards for whether a person can
use the institution of marriage and all Japanese citizens can use the institution of marriage
regardless of their sexual orientation. Since homosexual persons can marry persons of the
opposite sex, they are not being intentionally discriminated against.
The purpose of the institution of marriage, as noted in item (i), was to give legal protection to the
cohabitating relationship of a husband and wife that bear and raise a child, and even at present, it
is not considered that there has been a change to the understanding that the parties to a marriage
are a man and a woman. It cannot be said that, as for the meaning and purpose of marriage, theimportance of reproduction and child-rearing has declined and more importance is placed on thestabilization of the human bond between partners. The provisions regarding the legal benefits ofmarriage are established alongside such intent or purpose of the institution of marriage; thus, it isreasonable for the Provisions to give protection to the heterosexual relationship between a husband
and wife who can have a child.
25

Also, it is true that the various rights and obligations arising between married couples do not
immediately arise between homosexual couples under the laws and regulations, but such rights
and obligations can arise from an agreement between the parties.
From the above, the Provisions’ differential treatment of homosexual couples and heterosexual
couples is not unreasonable, and they do not violate Article 14, Paragraph 1 of the Constitution.

2

Issue (2): Whether for the purpose of the application of Article 1, Paragraph 1 of theState Redress Act, the Provisions not being amended or repealed should be consideredillegal(1)

Summary of the Plaintiffs’ Claims

Only in exceptional cases such as where the Diet neglects, for a long time without justifiable reasons,to take legislative measures such as to amend or repeal provisions of the law while it is clear that theprovisions violate the Constitution as they restrict without justifiable reason the rights and benefits
guaranteed or protected in the Constitution, the legislative inaction of members of the Diet is deemed
to be illegal under Article 1, Paragraph 1 of the State Redress Act as such actions of the members of
the Diet in the legislative process are considered to breach their legal obligations as members of theDiet.
The Provisions are about the institution of marriage, the concrete establishment of which is primarily
delegated to the Diet’s reasonable legislative discretion, but the matters and factors which need to beconsidered for the legislation of the institution of marriage will vary over time. Thus, thereasonableness of the Provisions needs to be constantly reviewed and examined in light of theConstitution’s provisions regarding individual dignity and equality under the law. Also, from the factthat the Provisions lead to differential treatment based on sexual orientation, members of the Diet,
when fulfilling their duties, need to give meticulous consideration to homosexual persons who are theminority, and members of the Diet should sufficiently advocate for the rights and benefits ofhomosexual persons. From the foregoing, regarding the Provisions, the legal obligations borne bymembers of the Diet as part of their duties towards individual citizens, are not passive obligations inwhich it would suffice for them to take legislative measures and otherwise act based on judicial rulings
or other judgments that the Provisions are unconstitutional; rather, their legal obligations should beinterpreted to include obligations to act with initiative and to constantly review and examine thereasonableness of the Provisions in light of the Constitution providing for individual dignity andequality under the law, through their own research into and consideration of various matters concerning
the reasonableness of the Provisions.
However, even well before January 2019, when the Plaintiffs submitted their marriage notification,
there were no longer any grounds for the reasonableness of the Provisions, even taking legislative
discretion into account. The Provisions infringe on the Plaintiffs’ freedom to marry, and discriminate
against homosexual couples including the Plaintiffs regarding marriage, without justifiable reason.
The Provisions infringe on the rights and benefits of homosexual couples including the Plaintiffs to betreated equally with heterosexual couples regarding legal marriage, and thus violate Article 24,
Paragraphs 1 and 2, Article 13, and Article 14, Paragraph 1 of the Constitution.
From the above, the Diet should have been aware of the unconstitutionality of the Provisions wellbefore the Plaintiffs’ submission of their marriage notification, but the Diet failed to take the necessary
legislative measures to amend or repeal the Provisions without justifiable reason. Therefore, thelegislative inaction of the Diet in not having amended or repealed the Provisions should be deemed tobe illegal under Article 1, Paragraph 1 of the State Redress Act.
26

(2)

Summary of the Defendant’s Claims“Illegal” in Article 1, Paragraph 1 of the State Redress Act means that Government officials, who
exercise the public authority of the State or public entities, breach their legal obligations under theirduties towards individual citizens; whether the legislative action or inaction of members of the Diet
would be illegal under that provision depends on whether their actions in the legislative process
breached their legal obligations under their duties towards individual citizens. This should be
distinguished from the issue of the unconstitutionality of the legislation itself. Also, the evaluationof the above actions should in principle be deferred to the political judgment of the citizens, and even
if the legislation contradicts the Constitution, it would not result in the legislative action or inaction of
the members of the Diet being immediately deemed to be illegal under Article 1, Paragraph 1 of theState Redress Act.
That said, only in exceptional cases such as where the Diet neglects, for a long time without justifiablereasons, to take legislative measures such as to amend or repeal provisions of the law while it is clearthat the provisions violate the Constitution as they restrict without justifiable reason the rights andbenefits guaranteed or protected by the Constitution, the legislative inaction of the members of theDiet may be deemed to be illegal under Article 1, Paragraph 1 of the State Redress Act as the actionsof the members of the Diet in the legislative process breach the legal obligations imposed on them by
their duties.
However, the Provisions do not violate Article 24, Paragraphs 1 and 2, Article 13, or Article 14,
Paragraph 1 of the Constitution and thus such legislative inaction cannot be considered to be illegal
for the purpose of Article 1, Paragraph 1 of the State Redress Act.
3

Issue (3): Amount of damages suffered by the Plaintiffs(1)

Summary of the Plaintiffs’ Claims

The Defendant’s legislative inaction and failure to enact legislation recognizing same-sex marriage for
persons who are legally of the same sex has infringed upon the Plaintiffs’ freedom of marriage
guaranteed by the Constitution and as a result has denied the Plaintiffs the emotional and social benefits,
the legal and economic rights and benefits, and the de facto benefits that accompany the social
recognition conferred by marriage. Also, the Plaintiffs have incurred substantial harm to their dignityfrom the stigma attached to them for being in a relationship not approved by society, and as a result of
the foregoing, they have suffered significant emotional distress.
Sufficient compensation for their suffering would amount to no less than one million yen for each
Plaintiff.
(2)

Summary of the Defendant’s Claims

The Defendant denies the damages claimed by the Plaintiffs.
[End of Document]27