Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System

(2024) 2 Comparative Constitutional Studies X

22 Pages Posted: 6 Jul 2023 Last revised: 19 Dec 2023

See all articles by Guy Baldwin

Guy Baldwin

Department of Law, School of Social Sciences, University of Manchester

Date Written: June 21, 2023

Abstract

Japan is increasingly isolated among advanced economies in not having made provision for same-sex marriage or same-sex civil unions at the national level. The main political obstacle to legal recognition of same-sex couples is the Liberal Democratic Party (LDP), Japan’s dominant party, which has ruled the country with only two interruptions since 1955; many other parties support legalizing same-sex marriage, while the LDP does not. The literature suggests that the LDP secured its dominant position due to opposition fragmentation and ineffectiveness, and its own clientelist practices. Against this backdrop, cases are progressing through the Japanese judicial system seeking a finding that same- sex marriage is required under the 1947 Constitution. At the time of writing, the results of these cases have been mixed, with one case finding the current marriage law unconstitutional and two finding it constitutional.

This article contends that Japanese courts should find in favour of these claims and hold that same-sex marriage is constitutionally required. That is so not merely because it is the better position under existing legal doctrine relating to equality and non-discrimination under Article 14(1) of the Constitution, but also because the dominant party status of the LDP means that there is less reason in constitutional theory for courts to show deference to the legislature. In a dominant party system, there is less reason to expect that the government will pay sufficient heed to rights, while ‘counter-majoritarian’ difficulties with judicial review are less credible given the more ambiguous nature of the democratic mandate of the legislature. This undercuts a significant justification given for judicial deference.

Keywords: Civil and political rights, comparative constitutional law, comparative public law, constitutional interpretation, constitutional rights, constitutional theory, Japan, same-sex marriage

Suggested Citation

Baldwin, Guy, Same-Sex Marriage in Japan and the Role of Courts in a Dominant Party System (June 21, 2023). (2024) 2 Comparative Constitutional Studies X, Available at SSRN: https://ssrn.com/abstract=4490325 or http://dx.doi.org/10.2139/ssrn.4490325

Guy Baldwin (Contact Author)

Department of Law, School of Social Sciences, University of Manchester ( email )

United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
265
Abstract Views
6,204
Rank
218,522
PlumX Metrics