Ban on same-sex marriage unconstitutional, Sapporo High Court rules

https://www.japantimes.co.jp/news/2024/03/14/japan/crime-legal/same-sex-marriage-ruling/

by mikhael • 2 years ago

123 39 2 years ago

japantimes.co.jp

AdrianB15• 2 years ago

I know nothing about the legal system in Japan, so I am asking: why several courts rule independently on the same matter? Is there a supreme court that decides or not? What are the next steps?

And the other question is: what is a marriage in legal terms in Japan? In Europe marriage was originally a religious thing, officiated by priests and managed by the church; then the states stole the term to use it for a civil contract, officiated by civil servants (usually the mayor) with laws and courts managing it. For Japan, which one is in the courts?

GrumpySloth• 2 years ago

In Europe marriage was originally a religious thing, officiated by priests and managed by the church

Previously, not originally. In ancient Greece it was a state matter: <https://en.wikipedia.org/wiki/Marriage_in_ancient_Greece>

skywhopper• 2 years ago

What a weird way to look at it. States “stole” the term “marriage”? Sorry, that’s not how any of it ever worked.

retrac• 2 years ago

It's maybe oddly phrased, but in much of Europe, the state did assume power over marriage from the church at some point. Sometimes very dramatically, such as during the French Revolution, when priests were banned from marrying people in the traditional manner and people were compelled to register their marriages with the government. I can see why one might describe that as stealing marriage from the church; or if not stealing, then perhaps expropriation.

AdrianB15• 2 years ago

Until 100 years ago there was no civil marriage in my country and no civil laws regarding marriage, it was just some penal law punishing polygamy. Then the state took ownership of the notion of marriage by regulating it by law and forbidding churches to perform marriage ceremonies unless you get married by the state, so the religious marriage is just a ceremony with no legal implications these days.

So yes, the state stole the term. It's like tomorrow the state decides by law that everything that color red will be called color blue, that would be stealing the word "blue" and use it to define the color of red things. It is not a natural evolution of language.

lmm4• 2 years ago

Legal marriage in Japan is purely civil, administered by the municipality. Religious marriage ceremonies have purely religious effects (which is surely what you'd expect; legal processes are run by the legal system, religious processes are run by the religious system, render unto Cesar and all that).

AdrianB15• 2 years ago

In my country legal and religious marriage are strongly related: you cannot get married in the church until you get married in front of the mayor. So it is not that obvious as you suggest it is.

groby_b• 2 years ago

It's worth noting that it's still a religious thing as well. It's just that if you want to claim the governmental benefits that accrue to people the state considers married, well, you'll need the state to say you're married.

And unless you live in a world where words can be owned by an entity, nobody "stole" anything. Many marriages still get both the official paper (civil contract) and the sacrament. They mean a similar thing, and humans being humans means they use the same word.

(It's also not "usually the mayor", btw - that depends on the country. In Germany it's e.g usually the "Standesbeamte". A government official that does the job of a registrar. Mayors can only do the job if they've also been appointed to that role)

jltsiren• 2 years ago

The Christian idea of marriage is a further evolution of ancient Roman laws and customs. Roman marriage was fundamentally a civil contract between families. Like any contract, it could be severed. Either by the people in question or by the heads of their families. Early Christians took the Roman idea of monogamy and added a new idea that marriage is sacred and unbreakable.

fennecbutt2• 2 years ago

The concept of marriage existed long before churches as a social contract.

belorn3• 2 years ago

I am a bit curious about the tax benefits that the article mentions in the end. How does it work?

jwrallie3• 2 years ago

You get lower taxes if you add your wife / husband as a dependent and your shared income is below a certain threshold.

jwrallie3• 2 years ago

One of my friends was fearing of being forced to leave his partner behind in Japan and having to go back to his home country when he had trouble securing a new job, even if his partner’s salary could more than cover for his expenses. To get permanent residence he needs to live 10 years in Japan while working and paying taxes.

For some people the difference in rights might feel small but there are certain edge cases when it makes a big difference. If my friend's partner was not the same sex as his, then he would be eligible to a spouse visa regardless of job status and could get permanent residence in as low as 3 years.

lazzlazzlazz• 2 years ago

Note that the issues you're talking about are, in substance, really about immigration and the legalisms therein. They're not about marriage in itself. The fact that marriage comes with other immigration and residency privileges means that it enters the conversation often when immigration is the topic.

I'm not sure that it makes sense to alter marriage to solve immigration issues.

Renaud• 2 years ago

How about rights of care when your partner of 20 years can’t make medical decisions because your relationship is not recognised?

Or i inheritance rights when you pass away and you lifelong partner gets little or nothing because your relationship doesn’t mean anything to the state?

What about parenting rights?

And what about simply people who decide to commit to a relationship enjoy the same rights, privileges and duties as anyone else instead of making them second rate citizens unworthy of the protection and recognition of the state?

dqv• 2 years ago

The issue they're talking about here is fairness, with immigration as a concrete example. Simple and clean. How you think that fairness should be administered is up to you. If you want to advocate for removing immigration rules for naturalizing foreign spouses in Japan, just say that.

Regardless of immigration, marriage should be "altered" to give everyone the same rights. If that means getting rid of the legal concept of marriage entirely, so be it.

I could be wrong, but I'm sensing some false advocacy here. It seems like you're using immigration as a red herring - don't "alter" marriage, alter immigration laws instead! How about both?

jwrallie3• 2 years ago

Yeah, countries could create extra mechanism to try to minimize discrimination in immigration, taxes, decisions in hospitals, renting/buying a place to live, inheritance, and many other issues that could not come to mind.

Or you could solve it by allowing same sex marriage. That sounds so much easier.

This is strictly my personal opinion, but I would be perfectly fine with renaming marriage to civil union as a whole in terms of law and giving the same rights to all couples independent of sex, leaving the term marriage for other uses outside of law.

However I understand the reasons why people would want to have same sex marriage named as so, I would also be perfectly fine with that.

makeitdouble2• 2 years ago

If we really stuck to the definition, "marriage" as a legal status would make no sense and should have no impact on how the gov. is treating you (fundamentally, why should the gov. care about who your heart belongs to?)

So discussions are bound to be about the perks that have nothing to do with marriage per se, but are bundled with the marriage status, and are harder or impossible to get outside of it. Opening marriage to more people is a more reasonable proposition than rewriting every single marriage perk to be more open to everyone.

lmm4• 2 years ago

If my friend's partner was not the same sex as his, then he would be eligible to a spouse visa regardless of job status and could get permanent residence in as low as 3 years.

Bear in mind that the Japanese government's official rationale for allowing spouses to work freely is to allow foreigners in that position to support Japanese dependent family members. The fact that it applies to spouses of working adults without children is more of a legal accident than deliberate policy (the rules were set at a time when it was rare for women to have careers).

makeitdouble2• 2 years ago

Yes. It's such a weird quirk, where the japanese denomination is for having a "dependent(配偶者) of Japanese national" while the english wording is just "spouse".

I think they're just stuck with the old japanese name and won't bother renaming it to something closer to reality.

belorn3• 2 years ago

Seems like they could move this law to parental benefits with very little change in intent and effect. It would not change for the friend in the parent comment, but it would separate the law from the cultural concept of marriage. It would also eliminate the concept of sham marriage when used as a tool for immigration (I have no idea if that is common or not).

hayst4ck• 2 years ago

For some context I find interesting, Taiwan was the first country in Asia to legalize same sex marriage using a similar method of courts declaring that it was illegal for same sex marriage to not be legal.

https://en.wikipedia.org/wiki/LGBT_rights_in_Taiwan

omeysalvi• 2 years ago

I love the fact that the ruling came from a court in a location called Sapporo (Sapphic)

fennecbutt2• 2 years ago

Such a shame that Japan is so modern in some ways and so backwards in others. They really need a better attitude towards gay couples.

Also some of the comments on this are pretty sad, but I'm not really that surprised. Peeps are still plenty homophobic in 2024.

Ban on same-sex marriage unconstitutional, Sapporo High Court rules

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