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Katsuhiko Takaike

【#1146】Opposing Civil Code amendment to legalize same-sex marriage

Katsuhiko Takaike / 2024.05.16 (Thu)

May 13, 2024

On March 6 last year, the Constitutional Democratic Party of Japan submitted to the House of Representatives a bill to amend the Civil Code to legalize same-sex marriage. The so-called marriage equality bill has yet to be deliberated on, gathering dust on the shelf. After the Sapporo High Court ruled on March 14 this year that it is unconstitutional for the Civil Code and the Census Registration Act not to recognize same-sex marriage, however, the CDP might have been encouraged to promote the bill. Therefore, I would like to reiterate my opposition to the acceptance of same-sex marriage.

Problems with CDP bill

The bill’s three key points are as follows:

1. To legalize same-sex marriage

2. To revise provisions for special and other adoptions

3. To revise wording to be gender-neutral to meet the acceptance of same-sex marriage

On the first point, I repeat my argument I made in my March 19 “Viewpoints” essay against the Sapporo High Court ruling: Marriage should be an institution aimed at family formation between opposite sexes, and the prohibition of discrimination against homosexuals should be considered separately. While it is true that the number of countries that recognize same-sex marriage is increasing, the trend is partly a reaction to the past criminalization of homosexuality that does not apply to Japan. The question is what to do with discrimination and inconvenience faced by homosexuals, and the elimination of discrimination or inconvenience is not directly linked to the recognition of same-sex marriage.

Regarding the second point, the special adoption is a system for adopting a child where the legal relationship with the biological parents is dissolved, allowing the child to have the same parent-child relationship as if he or she were the biological child in order to promote the welfare of the child. A husband and wife seeking to become adoptive parents can request special adoption, subject to strict requirements and approval by the family court. If same-sex marriage is recognized, a husband and wife would be changed into “parties to marriage.” Consequently, special adoption could be extended also to same-sex married couples.

However, this is a misguided argument. The special adoption has been created for the welfare of a child, not for a husband and wife or “parties to marriage.” A child is different from a pet. The fundamental principle is that a child should be raised by their biological parents, and in exceptional circumstances, adoption by a husband and wife is allowed for the welfare of the child. It is not necessary or appropriate for “parties to marriage” who are of the same sex to adopt a child.

The third point represents a wording issue of changing “husband and wife,” “husband” and “wife” into “parties[party] to marriage” and “father and mother,” “father” and “mother” into “parent[s].” It is an ancillary issue.

Return to constitutionalism

A big problem with the CDP-proposed marriage equality bill is that it does not even mention constitutional amendments. Article 24 of the constitution states that “marriage shall be based only on the mutual consent of both sexes,” indicating that marriage is established between people of the opposite sex. Interpreting “both sexes” as including homosexuals seriously deviates from the wording.

If same-sex marriage is to be admitted, a constitutional amendment should be proposed. The Constitutional Democratic Party’s bill runs counter to constitutionalism.

Katsuhiko Takaike is an attorney-at-law and Vice President of the Japan Institute for National Fundamentals.