Is same-sex marriage right for Japan?

Is same-sex marriage right for Japan?
A crowd waves rainbow flags during the Heritage Pride March in New York on June 28. Large turnouts were expected for gay pride parades across the U.S. following the landmark Supreme Court ruling that said gay couples can marry anywhere in the country.
PHOTO: AFP

On June 26, a years-long debate was brought to an end when the U.S. Supreme Court handed down a ruling recognising same-sex marriage as a constitutional right.

In Japan this spring, a law took effect in Tokyo’s Shibuya Ward that recognises same-sex couples.

How will the world move on same-sex marriage, and how should we consider its domestic institutionalization? We posed these questions to two individuals.

◆Worldwide trend of acceptance

Hiroyuki Taniguchi, Associate Prof. at Takaoka University of Law

It can be said that the movement to accept same-sex marriage is a global trend. The U.S. ruling in this case brings the number of countries recognising same-sex marriage past 20.

There are over 20 countries, including Germany and Switzerland, that have established “partnership systems” for same-sex unions. The fact that inheritance rights and tax benefits are guaranteed to same-sex couples makes these partnerships nearly tantamount to regular marriages.

Deciding whether to recognise same-sex marriage is a sensitive topic that divides countries right down the middle.

“If it is recognised, the family foundation will crumble and children will likely be negatively influenced.” It is no simple task to settle such a contention.

Due to this, most of the countries that currently recognise same-sex marriage first responded by establishing partnership systems. Denmark led the world by adopting such a system in 1989 and allowing same-sex marriages from 2012. The Netherlands, meanwhile, created a partnership system in 1998, then proceeded to revise their marriage law in 2001.

There are also cases, such as Germany, where acceptance of same-sex marriage remains elusive. Although the Living Partnership Law was enacted in 2001, the current ruling party, the Christian Democratic Union (CDU), is not bending its stance that the bedrock of a family is a marriage between a man and a woman.

It can be said that, in the cases of all these countries, the pros and cons of same-sex marriage were sounded out gradually by first establishing “trial systems.”

A unique case is that of France, which in 1999 introduced a system of civil solidarity pacts that can be used by heterosexual and homosexual couples alike. The tall hurdles of divorce are reflected in France’s high number of common-law marriages, which are a part of the national character. Despite the fact that same-sex marriages have been accepted since 2013, this system still lingers.

In looking at the efforts surrounding the issues of same-sex marriage, primarily from the background of how things have progressed in Western countries, we can see that most of them once had criminal regulations punishing sexual relations between members of the same sex. These are called “sodomy laws” and are based on religious conventions. England, for example, considered love between men to be a crime until the 1980s. Opposition grew on the grounds that such laws were an unjustified involvement in people’s private affairs, which then led to an antidiscrimination movement. This developed into actions demanding guaranteed rights for same-sex couples.

Recently, major corporations have started popping up in Japan that recognise marriage leave for same-sex couples. Such cases show that the eyes of Japanese society have now begun to turn toward the pleas of sexual minorities. From that perspective, the fact that laws granting certificates to same-sex couples have been enacted by local governments, which are so interwoven with the citizenry, is symbolic. We must continue, carefully, to debate whether to change legal systems such as the Civil Code.

Taniguchi’s area of expertise is international human rights law. He is currently a fellow at the Japan Society for the Promotion of Science. Aged 40.

(Interview conducted by Yomiuri Shimbun Staff Writer Yasuto Akaike)

◆Influence tremendous when children involved

Noriko Mizuno, Prof. at Tohoku University

The historical progress and systems of marriage surrounding homosexuality are vastly different between Japan and the United States. It is simply too soon to judge whether the U.S. Supreme Court ruling will apply to the debate in Japan.

The ruling referred to the fact that, even well into the 20th century, homosexuality has historically been widely prohibited. Against the backdrop of strong discrimination coming from the Christian faith, the general consensus in the United States was one of fierce opposition toward homosexuality.

The court’s reasoning was largely influenced by desperate pleas from homosexuals to “have a union permitted by God through marriage.” The Supreme Court ruling was only 5-4, however, and it is possible that judicial rulings will be swayed if there are any harmful effects stemming from same-sex marriage in the years to come.

Japan, however, has long had a tradition within public morality of tolerance toward homosexuality, having built a society in which it is easier, compared to Western nations, to live as a homosexual. Of course, discrimination and bias must be eradicated if they rear their heads, but are the eradication of discrimination and the acceptance of same-sex marriage one and the same?

Marriage is a system by which parents are supported for child-rearing, a framework within which children can be born and raised in a stable environment. Children are not born naturally through same-sex marriages. Children who are born via assisted reproduction technologies (ART) using a third party’s sperm or egg will fundamentally experience distress upon realizing that their parents are not their biological parents. There is also a major difference between becoming a parent through adoption and becoming a parent through the use of ART.

ART is widespread throughout the United States, and the reality is that same-sex couples are already freely able to have children via medical assistance. This is certainly why the Supreme Court ruling included the reasoning that the recognition of marriages provides legal protection to families and children.

Even in countries where same-sex marriage has been recognised, the debate over what to do regarding children continues. In France, same-sex married couples are prohibited from having children through means of ART. I believe this is where any country should draw the line.

The drafters of Article 24 of the Japanese Constitution certainly never imagined same-sex marriage. The Constitution could, however, allow for the creation of a partnership system for homosexuals aside from marriage.

There are many children suffering abuse at the hands of unfit parents in Japan, a country with a remarkable lack of child-rearing support. There would likely be many cases in which such children would be saved if they could be adopted and raised by same-sex couples.

Mizuno’s area of expertise is the Civil Code (family law), a field in which she has been active since 1998. Aged 60, one of her roles is being a member of the Civil Code task force (inheritance-related) of the Justice Ministry’s Legislative Council.

(Interview conducted by Yomiuri Shimbun Staff Writer Tomoko Koizumi)

◆Split opinions on Japan’s constitutional position

The U.S. Supreme Court on June 26 ruled that state laws prohibiting same-sex marriage are unconstitutional and contrary to equality under the law, saying that same-sex couples are deprived of receiving the tax breaks and other benefits that those in heterosexual marriages can receive. Four of the nine Supreme Court justices dissented from the ruling.

Article 24 of the Japanese Constitution states, “Marriage shall be based only on the mutual consent of both sexes.” Whether this is a regulation denying same-sex marriage is an issue on which the opinions of scholars are divided.

 

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