Last month the Supreme Court handed down its verdict on a lawsuit filed by people who objected to the Civil Code requirement that married couples be registered under one surname. The majority of the 15 judges ruled that the plaintiffs’ rights were not being violated by the law, and the media debate that followed pivoted on the question of constitutionality versus culture, or the assumption that Japan had some unusual social need for couples and their children to be identified by one name only.
Within this discussion, Sota Kimura, an associate professor at Tokyo Metropolitan University and presently one of the most in-demand media pundits when it comes to constitutional matters, brought up the wording the judges used in their decision. On various media, Kimura pointed out that this is the first time the Supreme Court has ruled on a case concerning Article 24, which defines marriage as a legally binding union between two people who mutually agree to enter into that union. Although English translations of the Constitution typically describe marriage as involving “both sexes,” the word ryōsei can also be interpreted to mean “two parties,” and Kimura believes it was this interpretation the judges were stressing. While the court said there is nothing unconstitutional about compelling married couples to register under one name, they didn’t expressly limit marriage to a man and a woman.
According to Kimura, if a same-sex couple someday sues the state to have their marriage legally recognized, lawyers can use this ruling as a precedent to claim that such a union is guaranteed by the Constitution. He is certainly aware of Prime Minister Shinzo Abe’s remark that the Constitution would have to be revised before same-sex marriages can be permitted in Japan, but the Constitution does not use the word danjo (men and women), so it is not manifestly apparent that the two “parties” have to be of different genders.
Kimura says the mainstream press has ignored this aspect of the ruling, but that’s understandable. Japan’s mass media isn’t conversant in the niceties of constitutional law, and thinks the trial only focused on surnames and women’s rights, but lately it has begun to look at the issue of same-sex marriage as something more than a novelty topic.
Last October NHK conducted its own nationwide survey of sexual minorities in Japan, and found that 50 percent of respondents admitted they had partners, but only half of these people were living with them. More than 80 percent said they want some sort of legal recognition of same-sex partnerships, regardless of whether or not they are presently in a relationship, with 65 percent saying they would prefer that these partnerships be legitimized as marriages. One LGBT blogger who analyzed the findings expressed surprise, since this person had always thought that the institution of marriage bolstered a “paternalistic family system” anathema to the LGBT community, but the desire for a marriage system within that community seems to be an acknowledgment of social realities. Lesbian, gay, bisexual and transgender couples want the same legal guarantees that straight married people enjoy in terms of housing, medical care, social services and employment.
These findings highlight the need to address same-sex marriage as a civil-rights matter, but they sidestep the aspect that will probably have a greater effect on public acceptance: sentiment. The reason the Americans included provisions for marriage in Japan’s Constitution in the years right after World War II was to safeguard the right of individuals to choose their own legal partners in life, since at the time most marriages were arranged and usually for the benefit of the husband’s family. While the provision was couched in terms of civil rights, it carried with it an assumption that people should be able to follow their hearts.
The U.S. Constitution contains no mention of marriage, but it was thought that Japan, left to its own devices, would not extend marital rights to individuals since marriage was a legal contract here rather than a declaration of devotion. And, to a certain extent, marriage has taken on at least the trappings of a romantic ideal since the war.
In this regard, same-sex marriage has a better chance of winning the general public’s approval if it’s presented not so much as a civil right but as a very human one. This aspect is illustrated in the U.S. documentary “The Case Against 8,” which chronicles a lawsuit brought by the American Foundation for Equal Rights against the State of California following approval in 2008 of Proposition 8, the ballot initiative that defined marriage as that between a man and a woman. The American Foundation for Equal Rights used the 14th Amendment, which guarantees equal protection under the law, to argue that Proposition 8 was unconstitutional, and continually won in court, but the state appealed all the way to the Supreme Court, which refused to hear the case, thus killing the proposition and making same-sex marriage legal in California.
However, what made the case compelling over the five years it was fought was the two same-sex couples the American Foundation for Equal Rights used as proxies. Whatever the obvious truths of their civil rights arguments, it was the example of these four people, desperate to be married in the eyes of the state, that made the difference in the court of public opinion. It was their love that swayed the country, which has since come to accept same-sex marriage. As several conservatives stress in the movie, it’s difficult to deny, face to face, someone who so passionately wants to marry the person they love and hopes to start a family.
If the Japanese media cover this aspect of the issue in a nonexploitive way, same-sex marriage might gain traction, since marriage is an inherently conservative institution and, as such, is in the government’s interest. Kimura may think it’s ironic that same-sex marriage could be a reality before separate married names, but it really isn’t. After all, everyone loves a wedding.
“The Case Against 8” opens at Cinemart Shinjuku in Tokyo on Jan. 30. In English with Japanese subtitles.