Supreme Court’s surname ruling

The Supreme Court’s Grand Bench last week upheld the constitutionality of the Civil Code provision requiring a couple to use the same surname when they register their marriage. The 10-5 ruling by the justices at the same time called on the Diet to discuss whether Japan should allow married couples to use different surnames if they so wish. The Diet should not take the ruling as an excuse for inaction and should instead start the process to change the provision by fully taking into account the inconveniences and disadvantages many women suffer under the same-surname system, even to the point of suffering an identity crisis.

The Grand Bench, composed of 15 justices, in a separate but related ruling declared that another Civil Code provision prohibiting women from remarrying within six months of their divorce is unconstitutional, suggesting that the ban should be shortened to 100 days. The six-month ban has been designed to avoid confusion over who is the father of a child born to a recently divorced woman. But the top court ruled that since under the Civil Code a child born within 300 days after divorce is deemed that of the previous husband and one born after 200 days have passed since marriage that of the current spouse, a remarriage ban longer than 100 days is irrational, noting that keeping in force such a margin to avoid confusion over the child’s paternity cannot be justified in view of modern DNA technology that can determine the father of the newborn with a high degree of accuracy.

While the Diet should quickly take action concerning the six-month remarriage ban, it should go beyond the ruling and consider whether a 100-day ban is reasonable given the advance of DNA tests, which are relatively inexpensive and can be easily conducted.

The roots of the two Civil Code provisions go back to the Civil Code introduced in 1898. Incongruities of the provisions set during the Meiji Era with social changes that have since taken place, including diversified forms of and views about families, have come to the fore and are causing problems for many people. The Meiji Civil Code, which served as the legal underpinning of the ie family system in prewar Japan, mandated that all members of a family must use the surname of the head of the family, which in principle was the husband.

Although the Civil Code abolished the ie system through a 1947 revision, it retained the same-surname requirement but said that married couples can choose either the wife’s or husband’s family name. The majority Supreme Court opinion last week said that since the question of which surname to adopt is a decision every couple can make, there is no “formal inequality” between the two genders and the same-surname system does not violate either Article 14 of the Constitution, which guarantees equality under the law, or Article 24, which stipulates individual dignity and essential equality of the sexes.

While the ruling acknowledges that a change of surname can lead to an identity crisis and professional disadvantages, in most cases among women, and that the current system forces some people to choose not to marry, it said that those disadvantages and problems can be mitigated through a broader use of pre-marriage surnames. It is true that use of pre-marriage surnames in the workplace is widening. According to a survey of major companies by the private Institute of Labor Administration, workers were allowed to use their pre-marriage surnames for their work at 64.5 percent of the firms in 2013, up from 17.8 percent in 1995. But the ruling failed to take a close look at the reality.

The use of pre-marriage surnames as mentioned by the ruling is not based on law, and is therefore not allowed to be used in official or legal matters, such as in obtaining a driver’s license and passport or opening a bank account. Some women reportedly think that the change of their surnames upon marriage is tantamount to losing the identity that they have built up through their life and job career. If a couple chooses de-facto marriage in order to retain separate surnames, neither of them can become a legal heir to each other or exercise joint parental authority over their children.

It is noteworthy that all three of the female justices on the Grand Bench said the same-surname system is unconstitutional on the grounds that it imposes irrational conditions on people who marry and restricts the freedom of marriage. Their opinion should be interpreted as representing the sentiments of the many women who suffer disadvantages and anguish under the system.

Attention should also be paid to what one of the three judges said about a survey finding by the Health, Labor and Welfare Ministry that 96 percent of married couples opt for the husband’s family name. She said that even if the wife agrees to use the husband’s surname, inequality and power relationship in real life influence the decision-making process, and that this process is not based on individual dignity and gender equality. It would not be far-fetched to say that the split decision of the top court reflects the gender gap in awareness of the problems surrounding the issue.

Even as the top court upheld the constitutionality of the same-surname system, it said its ruling does not mean that a system of letting a married couple choose to use separate surnames if they wish would be irrational. The Diet should pay heed to this point and discuss the issue from a viewpoint of removing what many women regard as discriminatory under the current system, even if the law is gender-neutral.

Conservative lawmakers, who stress the importance of the family system and argue that separate surnames for married couples would threaten family values, should be tolerant enough to accept that the current system poses potential difficulties for many married people. They should listen to what one of the female justices said — that there are no grounds to the allegations that couples who chose to use different surnames would likely to face marital problems and that their children would have problems in their personal growth.

  • skillet

    The whole effort to destroy family unity is a Fortune 500 globalist effort to break down the nation and the family. Eliminating the family name is an assault on a grassroots institution which stands in the way of top down control on the people.

    I am glad to see the Japanese “folk” defending their identity.

    • R0ninX3ph

      Don’t you get tired of wearing the same tinfoil hat all the time?

      • skillet

        Personal insult is HATE SPEECH. Your comment has been FLAGGED ! FYI, Japan Times does not allow ad hominem attacks upon its readers and esteemed commentators !

      • R0ninX3ph

        hate speech

        speech that attacks, threatens, or insults a person or group on the basis of national origin, ethnicity, color, religion, gender, gender identity, sexual orientation, or disability.

      • R0ninX3ph

        I’m not the one claiming that having the same family name is a grassroots institution that stops Governments from controlling people.

        Nor, am I the one claiming that people who do want the choice to have a different surname, are part of a Fortune 500 globalist effort to break down nations and families.

        Both claims scream conspiracy theory to me.

      • Ogre Rasing

        Your “safe space” is not in any comment section on the Internet. I suggest the closet.

    • jcbinok

      Not sure how changing to a spouse’s name is “defending” one’s identity.

      • skillet

        A healthy cohesive nation has healthy cohesive families. Who proudly live together with a name they share. And revere as a precious part of their heritage.

        I can trace both sides of my own family back to before the American revolution.

      • jcbinok

        It’s ironic that you rail against “top down control,” yet at the same time embrace the government dictating how married adults identify themselves.

        As for tracing your family tree way back due to consistent naming, etc., that’s cool. You know who else loves well ordered affairs? Fortune 500 companies. ;)

      • skillet

        If somebody wants to live together, that is fine. I dis that several times when I was young. But in a democracy, people define their social institutions.

        Actually, I would prefer that the government stay out of marriage. Let churches or civic organizations decide for themselves.

        But if government is going to meddle and define things, they should do so in accordance with conventions and tradition.

        I was one of the earliest supporters of LGBT civil unions for example. I was called a flaming leftist in the 90’s for saying people have the right to contract for inheritane/visitation etc. as they please and civil unions were fair.

        But now I am called a right wing bigot. Because I am opposed to gay and other unconventioal forms of marriage. I oppose the fact that the government is legislating social acceptance when 1000’s of years of precedent and almost every referendum carried out has had a rejection of LGBT marriage.

        I am against tampering with organic social traditions with legalese. Marriage is 1000’s of years old and is a venerable social institution.

        Let’s not subject it to the whims of the moment.

        (Leftists will often tell you their true agenda if you listen carefully. Francois Hollande, president of France, once said, “I am against marriage but for gay marriage”.)

        But today, anybody who does not support throwing out a 6000 year old tradition for a 10 year old bias is a “hater”.

      • jcbinok

        Thanks for your response. I’m going to steer clear of the gay marriage aspect and stick with the naming question. I agree with your idea that big, multi-national corporations prefer a weak, “atomized (nice word)” populace. However, you failed to convince me that a woman retaining her original family name is playing into that. In fact, it has been my experience that women who keep their original name tend to be more strong (not less) in refusing to bow down before power. My own sister-in-law (who kept her maiden name) was instrumental in fighting to keep Walmart out of her small seaside town.

        As for “tradition” and all that, I think those are trends for historians to figure out. We each can only do our best at the present moment.

      • R0ninX3ph

        He hasn’t mentioned that his wife retained her maiden name when they married.

        Apparently its okay when it’s his family, but anyone else? Nope, gotta keep those Fortune 500 companies at bay by making sure everyone shares a surname.

      • jcbinok

        Thanks for your response. I’m going to steer clear of the gay marriage aspect and stick with the naming question. I agree with your idea that big, multi-national corporations prefer a weak, “atomized (nice word)” populace. However, you failed to convince me that a woman retaining her original family name is playing into that. In fact, it has been my experience that women who keep their original name tend to be more strong (not less) in refusing to bow down before power. My own sister-in-law (who kept her maiden name) was instrumental in fighting to keep Walmart out of her small seaside town.

        As for “tradition” and all that, I think those are trends for historians to figure out. We each can only do our best at the present moment.

      • skillet

        Family pride and cohesion is the best bulwark against Fortune 500 power. That and organizations such as churches. (Not the modern 501c3 time that can no longer express political views)

        The left used to serve to combat corporate power. Back in the days when the focus was labor unions, for example. But now it focuses on forms of fake liberation that atomize the population and destroy grassroots cohesion.

        A strong extended family of say the 19th century could withstand central authority. Extended family produced much of its own needs. Sewing clothes, gardens, whisky, etc. Cohesion meant survival.

        Fortune 500 today is all about destroying this sort of consciousness. Becuase when it is one puny atomized individual vs the state, guess who wins ?

        Feminism is interesting in that respect. I meassure things in terms of economic value for the homestead. 1980’s style feminism was a plus for us (my own family).

        As the male, I was and am the breadwinner. That has and always was the case. My wife has always insisted on her right as a woman to choose to work or be a homemaker. My counter-demand was that she not expect more from me the smalll townouse and single car lifestyle I could provide. Well, that was nor enough for her.

        So she “womaned up”. Worked, at times making more than I. We lived off my paycheck and she used her income as a surplus to buy a nice house/extra car. Then quit her full time job to freelance as she pleases (much lower income) after her goal was acheived.

        Women with her mindset are an asset to bottom-up grassroots power. That is a mindset which brings prosperity to the entire middle class. However, the egotistical feminist mindset of today is impoverishing the middle class by destroying the solidarity between men and women.

        I never overly (sometimes a little) resented her female right to choose because she kept her part of the bargain. I was the workhorse in the kitchen (and garden and fixing toilets, trimming trees, mowing lawns) when her work hours were longer.

        But her paycheck was always seen as the surplus, even when it was larger. Mine was the main one, even when it was smaller. As she had the right to choose. We had very different but fair roles.

        Feminist will never preach a division of labor which is about empowring the middle class toward grassroots prosperity.

        3rd wave feminism is just “Woman wants, woman wants woman wants…” They are killing the geese (male and female together) that produce the golden eggs.

        Even if the result is increased poverty, kids on ritalin etc. Because the point of all the Fortune 500 ideologies which also permeate academic gender studies departments is to turn all society into docile dependent atomized consumers. LGBT and feminist are useful corporate tool for making us all a dependent class.

      • Ogre Rasing

        Hmmm… My wife and I were married in 1989, and kept separate names for legal reasons. And yet here we are 26 years later, still married, still in Japan, oldest out the door, done with college, working in Japan for a big multi-national, daughter going to Keio University, youngest one still in high school. Two dogs, and a cat. Property owners, and general contributors to the overall betterment of Japanese society. Oh yea, and we can both trace our families back to way, way, way before the American Revolution… So much for your opinion (because that’s all it is).