The recent decision by Japan’s Supreme Court to uphold a controversial law requiring married couples to have the same surname comes as no surprise, writes STACEY STEELE.
On 16 December 2015, the Supreme Court of Japan found that a controversial law requiring married couples to have the same surname is constitutional.
Nearly 96 per cent of women officially adopt their husbands’ name on marriage in Japan, although some continue to use their maiden names in their daily life. The 10–5 majority decision of the court privileged the position of families over the rights and interests of women, but called on the parliament to revisit the issue.
Five plaintiffs had argued before the court that Article 750 of the Civil Code violated their right to be respected as individuals (Article 13), their right to equality and to be free of discrimination (Article 14) and their right to freedom in marriage (Article 24). Three of the plaintiffs changed their surnames on marriage, but used their maiden names in daily life; the other two changed their surnames on marriage, but then divorced so that they could continue to use their maiden names officially.
The majority of the court found that Article 750 was not unreasonable in light of the importance of the family unit to Japanese society and the significance of married couples having the same name for that family unit. They concluded that the 1946 Constitution does not protect individuals from being required to change their surnames on marriage.
Further, Article 750 does not stipulate that the female of the married couple should be the individual to have to change names. Couples choose their surname based on their own free will according to the majority of the Court. The judges argued that any concerns about equity between males and females can be mitigated by the name changer using their maiden name in professional settings.
Four of the judges in the minority found, however, that the Civil Code indirectly discriminated against women because in practice nearly 100 per cent of women were required to change their names. They argued that a woman typically has a weaker status in both society and at home, and thus the so-called ‘free discussion’ is a fiction. This judicial group included the three of the 15 justices who happen to be women: Justices Sakurai, Okabe and Onimaru. They were joined by Justice Yamamura.
Justice Kiuchi, who also dissented, approached the issue slightly differently. He argued that the requirement was unreasonable, including because the Civil Code provides for couples to use maiden names in cases such as divorce and adoption. Further, he thought that using the same surname was not a particularly strong indicator of family kinship. He didn’t think that children would be damaged simply by their parents using different names.
The majority displayed the traditional judicial restraint that the Supreme Court is known for. In his supplementary opinion, Chief Justice Terada also suggested that it is beyond judicial authority to decide whether there is social acceptance for using separate surnames and it was a discussion that was more suited to the political sphere.
Having met and hosted many Japanese judges in my role at the Asian Law Centre, including some current Supreme Court justices, the majority’s thinking about the role of the court itself is not surprising to me. The conservative approach in this case is also supported by research about the court. In Japan, the typical, although not universal, approach of the court is to defer to the parliament on controversial issues. In other words, the general prevailing view among the senior judiciary is that it is up to the legislature to address such issues. Part of the problem in Japan, however, is that the omnipresent Liberal Democratic Party (LDP) has systematically opposed separate surnames.
The fragmented decision suggests an interesting possible trend at the court, however. Dissenting and supplemental opinions are traditionally rare in Japanese Supreme Court opinions, making this decision controversial in its outcome, process and content. We’ve recently seen justices in other controversial cases relating to the saiban’in (lay judge) system providing supplemental opinions. Supreme Court enthusiasts will be watching with interest.
Predictably, key Japanese mainstream media outlets disagree about a way forward along conservative/progressive newspaper lines.
The conservative and most widely read Yomiuri Shimbun advocates a softly, softly approach in its editorial. Yomiuri argues that ‘by expanding the scope in which the use of maiden names is permitted in society, comfortable job environments for women should be created first’.
The more liberal-leaning Mainichi Newspaper calls for the Japanese Parliament to quickly consider legislative change to reflect societal opinions. The Mainichi finds ‘the idea that family ties could be damaged if married couples used separate surnames … difficult to understand’.
The LDP’s stance is inexplicable in the face of Prime Minister Abe’s call for support for improving the status of women to grow the Japanese economy.
Asahi Shimbun, also typically considered to be a liberal newspaper, conducted a telephone survey of 1,849 people on the topic and published the results in November 2015. When asked if they would choose the same or different names if they had a choice, 78 per cent said that they would choose the same name. However, 52 per cent thought that the law should be changed to allow couples to choose to have different names if they wanted to. A significant overall minority opposed law reform (34%), the highest opposition being from those 70 years and over (34% in favour; 48% opposed to change). In each other age bracket, however, the majority of people agreed that the law should change, and of the youngest group surveyed (20–30 year olds) only 25 per cent opposed law reform.
This small sample survey suggests that there is firm support for change, but it is not overwhelming and unlikely to force the legislature’s hand any time soon.
The LDP’s stance is inexplicable in the face of Prime Minister Abe’s call for support for improving the status of women to grow the Japanese economy. Yet using economic growth as the sole rationale for improving women’s status makes me uncomfortable in the first place. Why should human rights be driven only by an economic context? Article 750 and the court’s decision have been criticised internationally, including by the United Nations Committee on the Elimination of Discrimination against Women.
Although only three of the Supreme Court justices are women, gender isn’t necessarily an indicator of a persons’ stance on the surname issue, as the dissenting opinions of Justices Yamaura and Kiuchi show. It’s not a coincidence, however, that the minority included the three women justices. The justices are listed on the court’s website, together with a photo and a summary of their educational and professional backgrounds. The last woman was appointed in February 2013. There have been six male appointments since, which should have given the Abe Cabinet ample opportunity to elevate women if it really wanted to, despite ritualistic and unlegislated allocations for appointments.
Disappointingly, the Asahi Shimbun survey does not report answers along gender lines. But the survey also suggests a respondent’s age is relevant to this issue. The average age of the current Supreme Court is 66.5 years, which is usual for Japan’s highest court. The justices are appointed after distinguished careers, most likely as a career judge. Ironically, as Japanese society ages, the court is becoming more representative from an age perspective. One-quarter of Japanese people are now over 65.
Even so, the 5–15 minority may be read as equating to 33 per cent support on the court for reform in this area. A simple comparison with the Asahi Shimbun’s survey shows that this supportive percentage is even less than that of the average person in their 60s. According to Asahi Shimbun, 47 per cent of people in their 60s support changing Article 750. This comparison highlights the court’s inherent conservatism.
I wish to thank Natsuko Kouo Matsumoto, research assistant, Asian Law Centre, for her assistance and comments on this article. Mrs Kouo Matsumoto is also a bengoshi (attorney at law) in Japan and a Master of Laws student at Melbourne Law School.