Photo/Illutration Plaintiffs of the lawsuit enter the Fukuoka High Court on Dec. 13. (Masaru Komiyaji)

FUKUOKA—The Fukuoka High Court on Dec. 13 ruled that provisions of the Civil Code and the Family Register Law that do not recognize same-sex marriage are unconstitutional.

It is the third high court to reach that decision, but the first to say the provisions violate Article 13 of the Constitution, which stipulates the right to pursue happiness.

The court did not find the government liable for compensation.

A same-sex couple in the Kyushu region filed a lawsuit at the Fukuoka District Court in September 2019, and two other couples followed suit in February 2021. Both cases were heard together.

In addition to Article 13, the plaintiffs said the current provisions violate: the first paragraph of Article 14, which stipulates equality under the law; the first paragraph of Article 24, which guarantees freedom of marriage; and the second paragraph of Article 24, which states that marriage and family laws must be enacted based on “individual dignity and the essential equality of the sexes.”

Concerning Article 13, the Fukuoka High Court said there is no difference between opposite-sex and same-sex couples in their “desire to pursue happiness” by creating a family.

Therefore, the court said, the current provisions, which exclude same-sex couples from marriage, violate the right to pursue happiness of people who choose same-sex companions.

It said the provisions not only violate Article 13 but also the second paragraph of Article 24.

Concerning the first paragraph of Article 14, the court said the provisions discriminate against same-sex couples without reasonable grounds.

But the court said the provisions cannot be immediately interpreted as violating the first paragraph of Article 24.

In a ruling in June last year, the Fukuoka District Court stopped short of declaring the current provisions unconstitutional in terms of the second paragraph of Article 24.

The ruling said they are “in the state of unconstitutionality” because same-sex couples suffer serious disadvantages by not being legally recognized as a family.

“It can never be overlooked in light of individual dignity,” it said.

But the district court said the provisions are in compliance with the other articles of the Constitution mentioned in the lawsuit.

One point of contention was the interpretation of the word “marriage” in the first paragraph of Article 24, which says, “Marriage shall be based only on the mutual consent of both sexes.”

The plaintiffs argued that the meaning should be considered in accordance with changes in society, citing the growing number of countries that recognize same-sex marriages, among other factors.

The district court, however, said it is “difficult, at least at present,” to interpret the word as including same-sex unions since the paragraph assumes marriage is between a man and a woman.

Six similar lawsuits have been filed in five district courts.

The Sapporo High Court ruling in March said the first paragraph of Article 24 guarantees same-sex marriage to the same extent as opposite-sex marriage, saying the word “marriage” is intended for a “free association between persons.”

The Tokyo High Court ruling in October said the current provisions discriminate against same-sex couples based on sexual orientation and are in violation of the first paragraph of Article 14 and the second paragraph of Article 24.

Both courts dismissed claims for compensation on the grounds that the state’s “failure to act” is not recognized in terms of legislation.

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