Keigo Komamura: The Constitution Standing Still Before the Fading "Family Portrait"

2021/11/19

I usually spend my time researching constitutional law in my office at Mita, but occasionally I am called outside my study to perform work separate from my research activities. These calls come from various places—serving on councils, high school-university collaborations, writing essays, giving lectures, and so on—but as a rule, I make it a point to respond to requests involving actual litigation. This is because it serves as the ultimate testing ground to see if the theories I have constructed in my study can hold influence in real society. In a sense, it is like a final exam to test my own learning outcomes. It is a moment of ambivalence—the desire to avoid the exam if possible, mixed with the desire to receive an objective evaluation of my abilities—and though it may be a strange way to put it, it is truly enjoyable. Furthermore, collaborating with lawyers in litigation activities allows a typically solitary researcher to experience the sense of accomplishment that comes from teamwork.

For these reasons, I am involved in same-sex marriage litigation. These cases were filed simultaneously across many jurisdictions, including Tokyo, Sapporo, Nagoya, Osaka, and Fukuoka. Perhaps aided by such a "large-scale setup," I have had the opportunity to engage in heated discussions—going beyond just writing legal opinions—with very passionate lawyers.

Thanks to those efforts, the first-instance judgment in the Sapporo lawsuit ruled that the current legal system, which does not recognize same-sex marriage, is unconstitutional. Media reports quoted those involved saying, "A giant step forward!" Certainly, it cannot be denied that it was a judgment of great significance.

No, let me stop mincing words. I must state this accurately. The grounds for the unconstitutionality were that the various benefits granted to opposite-sex couples upon marriage are uniformly (..........) denied to homosexuals in their entirety, which violates equality. Conversely, this means that if some (....) of the benefits arising from marriage could be provided to same-sex couples, it would be considered acceptable. Furthermore, if a separate (..) legal system were established to provide all the same benefits as the current marriage system to same-sex couples—even if it were not called "marriage" and still excluded same-sex couples from the existing marriage system—the unconstitutionality would be resolved because the benefits, which were previously zero, would be granted in full. Rather than treating same-sex couples the same as opposite-sex couples under the Civil Code, establishing a separate category like a "Special Act on Same-Sex Partnerships" to strictly maintain the distinction between the two could also be a solution. These are the potential outcomes of the judgment. From the perspective of the plaintiffs seeking same-sex marriage as "marriage," the legal team decided to appeal this Sapporo District Court ruling, which could be described as an unwanted favor.

The conservative nature lurking within the Sapporo District Court's "unconstitutional ruling" is an important point of contention, but putting aside such roundabout legal interpretations for a moment, I would like to clearly summarize the core of the same-sex marriage lawsuits.

"The reality of the intimate relationship between a pair of individuals is no different from that of an opposite-sex couple, so why does the current law exclude same-sex couples from the marriage system?" This is the poignant question asked by the parties involved. Why is it poignant? Marriage as a legal system brings two things. One is social recognition. The other is a multitude of rights, obligations, and other legal and factual benefits granted to the parties of the marriage. Even for two people who share all the abundance and hardships of life, support each other, and intend to stay together until the end, same-sex couples are granted none of these. They cannot inherit, they cannot be designated as life insurance beneficiaries, and they cannot be present at the deathbed. Some even adopt their partners just to become "family."

I believe there are various views on homosexuality. However, please try to imagine. Because they have fallen in love, whether they are opposite-sex or same-sex, the virtues that love produces do not change. While they should be welcomed with equal dignity, one is celebrated and the other is denied. There are same-sex couples caring for partners who are not legally recognized as family. There are same-sex couples who cannot exercise joint custody even if they have children. Partners grow old, and children grow up. There is no more time. How long will we continue this cruel institutional response? How long will we continue the hypocrisy of consuming the tragedies of "outsiders" as mere stories? I want to ask the judges: How should the Constitution—and the judiciary—confront this current situation?

Currently, legal issues surrounding the family are reaching a critical state of seriousness. The issue of same-sex marriage, the issue of the option for separate surnames for married couples, the issue of imperial succession and the nature of the Imperial Family, and so on. What is postponing a full-scale review of these systems is the attitude of clinging to an old "family portrait." Simply standing still and staring at that "family portrait" will not bring back those nostalgic days, and the dead will never come back to life. The only way for the family to survive is to try and paint a new one.