Document Type

Article

Comments

This is a pre-publication version of the article; the published version appears in The Asian-Pacific Law & Policy Journal, vol. 16, no. 1.

Abstract

Marriage is one of the most significant stages in one’s life. For many decades, gays and lesbians have been excluded from the legal institution of marriage solely because of their sexual orientation. However, the situation concerning same-sex marriage has drastically changed in many societies including the U.S. in the past several years. This recent wave of the opening of same-sex marriage has yet to reach my home country, Japan. In Japanese society where no religion opposing to same-sex activity is influential, gays and lesbians have not been persecuted criminally or religiously, which caused the absence of gay and lesbian rights movements and public unawareness. In Japan, same-sex activity was common in pre-modern times. Today, however, homophobia, a social stigma against gays and lesbians, exists. In discussing how the pre-modern same-sex activity differs from the concept of gay and lesbian rights today and how same-sex couples are treated both socially and legally in today’s society, this paper seeks the possibility for Japan to legalize same-sex marriage in the near future. It also discuss the social meaning of marriage, the understanding of which is essential to same-sex marriage. Furthermore, in order to suggest an ideal process of the legalization, the paper considers the “step-by-step” approach taken by the Netherlands and England (referring to England and Wales), which legalized same-sex marriage in 2001 and 2013 respectively. Part I introduces the history concerning gays and lesbians in Japan. It discusses the pre-modern same-sex activity, the emergence of homophobia and the treatment of sexual orientation in postwar Japanese society, and the social meaning of marriage. Part II describes the situation surrounding same-sex couples in the present Japanese legal system. Possible bases of legal challenges asking for marriage equality under the Japanese Constitution are also discussed. Part III studies the “step-by-step” approach taken by the Netherlands and England. Part IV considers the possibility for Japan to open marriage to same-sex couples in comparing the two countries with Japan. This paper concludes that Japan should also legalize same-sex marriage step by step, which is to make small legal and social changes by introducing a registered partnership system designed for same-sex couples as an interim measure. In Japan, however, the opening of same-sex marriage after the introduction of a registered partnership system will be more difficult than in the Netherlands and England because the meaning of marriage differs significantly. In Japan, marriage is not just a matter of individual life choice, but it is deeply connected to the concept of ie or family lineage. Therefore, to open marriage to gays and lesbians, who do not fall within in this traditional idea of marriage, will likely take time. Nonetheless, meanwhile reconsidering the current meaning of marriage, the introduction of a registered partnership system would be a significant step to resolve the current situation wherein same-sex couples have no means to recognize their relationships.

Date of Authorship for this Version

2014

Keywords

Same-sex marriage, Domestic relations