Same-sex marriage: the role of courts in the march to marriage equality
- Dan
- Mar 26, 2021
- 3 min read
Last week, Japan’s Sapporo District Court ruled that the nation’s refusal to recognize same-sex marriage is “unconstitutional”, marking the first time the country has ruled on marriage equality in its history. Although the ruling is localised and non-binding given Japan’s civil law system, the Court’s ruling demonstrates that same-sex marriage is a growing and persistent issue in global constitutional law, even outside the West. Following such news, this article considers where marriage equality is headed next.
Same-sex marriage and its progress so far
Marriage is defined as “the state of being united as spouses in a consensual and contractual relationship recognized by law”. Not only is it an expression of one’s bond with another, but it is a central institution in our society, and confers legal privileges like employment and tax benefits. The United Kingdom legalised same-sex marriage in 2013 and is part of a club of 29 countries that currently perform and recognize marriage regardless of gender. This club has sharply grown in recent years. For example, Finland joined the list in 2017; Austria In 2019. Many other countries also perform civil unions or registered partnerships.
As you can see, most of these 29 countries are in the West, but legal institutions and the courts play a huge role in the more global battle for same-sex marriage - it can be introduced in democratic countries through (i) popular vote/the legislature, or (ii) through court rulings. 9 countries have legalised same-sex marriage through court rulings, or through courts compelling their federal governments to pass legislation to do so.
A key factor in this is the function of courts applying broad interpretation to constitutional clauses in civil law systems. For example, in Japan’s recent ruling, the court reinterpreted Article 24 of Japan’s constitution: the court ruled that the purpose of marriage being defined as “mutual consent of both sexes”, is to prohibit forced marriages, and not to restrict marriage to ‘man and woman’.
Importantly, there is a pattern of court decisions mandating the inclusion of same-sex couples in discrimination protections, which in turn prompts the passing of same-sex marriage legalisation. In Taiwan, for example, the Taiwanese Constitutional Court’s ruling ordering sexual orientation to be included into anti-discrimination law came two years before the country’s legislature legalised same-sex marriage.
Courts, therefore, have an important role in progressing marriage equality, especially when legislatures are gridlocked or reluctant to take action. As the Council on Foreign Relations notes, in 2019 73 countries had “protections against employment discrimination based on gender identity or sexual orientation”. This makes marriage equality the logical next step.
The role of international law
It’s worth noting that international law is favourable to same-sex marriage: Article 12 of the European Convention on Human Rights; the United Nations (UN), and the Yogakarta Principle 24 in human rights law, all support both the right to marriage equality, and the right of the LGBTQ community to be shielded from discrimination in public and private life.
The problem is that international bodies like the UN have “limited power” in that they can not force sovereign nation states to enforce same-sex marriage, and thus progress is uneven. In Mexico, its Supreme Court decision legalising marriage equality lacked erga omnes effect given its federal system, meaning that the ruling was not binding on all of Mexico’s state governments. In the Middle East, many states like Iran, Saudi Arabia, Afghanistan, Pakistan, Yemen and Sudan, follow Sharia religious law, meaning that same sex marriage is very unlikely to be achieved in such regions.
Conclusion
Same-sex marriage is now being considered in many jurisdictions globally. The courts have a huge role to play in this, both through judicial interpretation and through anti-discrimination rulings that act as a prelude to marriage equality. Eastern Europe and Latin America are most promising for legalisation in future years, although Japan’s recent district court ruling highlights that same-sex marriage is becoming a truly global issue. Crucially, polling finds that younger generations are more tolerant of different sexualities than ever before, highlighting that achieving same-sex marriage in different countries around the world is not a question of if, but when.
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