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

I usually conduct research on the Constitution in my office at Mita, but occasionally I am called out of my study to perform work separate from my research activities. The destinations vary—committee memberships, high school-university collaborations, essay writing, lectures, and so on—but as a rule, I have decided to respond to calls involving judicial practice. This is because it is the ultimate testing ground to see if the theories I have constructed in my study can exert influence on real society. In a sense, it is like a final exam to test my own learning outcomes. It is a moment of ambivalence—the feeling of wanting 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 even a usually 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.

As a result of these efforts, the first-instance judgment in the Sapporo lawsuit ruled that the current legal system, which does not recognize same-sex marriage, is unconstitutional. The media reported the words of those involved as "A giant step forward!" Certainly, it cannot be denied that it was a judgment of great significance.

No, let me stop speaking in such a guarded way. I must state this accurately. The grounds for unconstitutionality were that the various benefits granted to opposite-sex couples upon marriage are not granted to homosexuals at all (..........) in a uniform manner, 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 that were zero would now be recognized in full. Rather than treating same-sex couples the same as opposite-sex couples under the Civil Code, one solution could be to establish a separate category, such as a "Special Act on Same-Sex Marriage," and strictly maintain the distinction between the two. 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 "unconstitutionality ruling" is an important point of contention, but let us set aside such roundabout legal interpretations for a moment and summarize the core of the same-sex marriage lawsuits clearly.

"The reality of the intimate relationship formed by a pair of parties 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 of 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, none of these are granted to same-sex couples. They cannot inherit, they cannot be designated as life insurance beneficiaries, and they cannot be present at the deathbed. Some people 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 such cruel institutional responses? How long will we continue the deception 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 considerable seriousness. The issue of same-sex marriage, the issue of optional separate surnames for married couples, the issue of imperial succession and the nature of the Imperial Household, and so on. What is postponing a full-scale review of the system is the attitude of clinging to an old "family portrait." Simply standing and staring at the "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.