Japan’s Supreme Court today announced a pair of decisions that are attracting significant media and public attention. The one dominating most of the headlines, it seems, is the ruling that a law forbidding married couples from keeping their original names (rather than one party changing their name) is perfectly constitutional, a decision which is already attracting a degree of scorn from commentators. The other, arguably much more interesting from a political and legal standpoint, is a ruling that a law demanding that divorced women wait six months before remarrying is unconstitutional.
The ruling on “waiting periods” for divorced women is a blindingly obvious piece of law – Article 14 of the Constitution guarantees “no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin”, and the six-month rule applied only to women. The law pre-dated the 1947 Constitution – it was introduced in the late 1800s as an attempt to ensure clear parentage for children born after a divorce, and aside from being discriminatory, is clearly outdated in the modern era of DNA testing (edit: I should note that the court hasn’t demanded that the law be entirely removed, only that it be dropped to a 100-day period, but this is because that’s what the plaintiff in the case asked for, and to the best of my knowledge the Court isn’t empowered to demand that the Government go beyond that in its legal revision. There’s still no waiting period for men who wish to remarry, so the law remains unequal. Hat tip to @anjin_miura on Twitter for pointing this out.). Despite being the sort of ruling on constitutional law that a reasonably bright five year old could manage given sufficient candy incentives, this is still a landmark ruling for the simple reason that it’s incredibly, vanishingly rare for Japan’s Supreme Court to declare a law unconstitutional. Since it was first convened in 1947, the Court has only struck down laws on ten occasions. By comparison, the US Supreme Court (which is, in theory, the model for Japan’s Supreme Court) has struck down over 165 Acts of Congress and almost 1000 state laws on the basis of unconstitutionality in its 226-year history, with the vast majority of those occurring in the 20th century. This underlines the importance of any occasion on which the Japanese Supreme Court actually chooses to rule against a law – no matter how past its sell-by date the law may be.
It also explains, in broad, contextual terms, why the challenge against demanding the adoption of a partner’s surname failed. Even the non-Americans among us are very used to seeing extensive reporting of the US Supreme Court, which regularly turns the tiller of American society with sweeping rulings on social issues, from civil rights to equal marriage. There’s an expectation, perhaps, that the Japanese Supreme Court should be willing and empowered to do the same thing, and a degree of disappointment and even disbelief when they turn out to be far more tame and conservative than their US counterparts.
There are, however, solid legal and political reasons why the Japanese Supreme Court is how it is – and they’re mostly grounded in the 1946 Constitution itself, a document which is revered by Japanese liberals for its pacifist stance but which, in many regards, was flawed from the outset and is now really starting to show its age. The 1946 Constitution established both the Diet and the Supreme Court, and unwittingly created an ill-defined relationship between them, in which the powers and responsibilities of each body are problematically vague. Article 41, establishing the Diet, states that “the Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State”; Article 81, establishing the Supreme Court, says that it “is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act”. So which of them, then, is the highest organ of state power? Does the Supreme Court have the power to command the Diet? Does the Diet have the capacity to disagree with Supreme Court rulings and plough ahead regardless? The language of the Constitution leaves that frustratingly vague, and in a forehead-slap inducing Catch-22, the only bodies with the power to interpret the Constitution’s meaning in this regard are the very bodies whose roles are uncertain in this instance.
The compromise that’s been in effect since 1947 is very straightforward and typically Japanese; the Supreme Court doesn’t rock the boat. When a law is utterly, blatantly in violation of the Constitution, it strikes it down (these are often laws predating the constitution’s promulgation). When a law is in a gray area, in which clauses of the constitution seem to conflict with one another or where there’s a simple lack of clarity, the Supremes shrug their berobed shoulders and toss it back to the Diet, bowing to parliament’s role as the “highest organ of state power” and requesting that they draft legislation to clear things up one way or another. This compromise is made altogether easier by a peculiarity of the Japanese legal system by which it’s impossible to simply request a judicial review of the constitutionality of a law; individuals wishing to challenge a law have to prove that they have standing (i.e. demonstrate that they have suffered damages due to the unconstitutional legislation they’re challenging) in order for their case to be heard. As a consequence, some attempts to challenge laws in the Japanese courts fail not because the law is found to be constitutional, but because nobody can prove to the court’s satisfaction that they’ve personally suffered damages on account of the law; the arguments over constitutionality aren’t even broached before the case is thrown out.
What’s happened in the case of the surnames issue, then, is that the Court has decided that the Constitution doesn’t have anything direct or blunt enough to say on the matter, and thrown it back to the Diet for a legislative solution. Could the court have ruled otherwise? Sure; the plaintiffs argued under Article 13 of the Constitution (“All of the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”) that demanding that one partner give up their family name was an undue interference in people’s lives, and a more activist-minded court could absolutely have agreed with that position. It would, however, have risked a run-in with the government, which takes a conservative stance on family issues, and that would have sailed the ship of state far too close to the awkward questions over the roles of Diet and Supreme Court that nobody wants to ask or answer. The safe ruling, which is on rock-solid legal ground, is to say that the Constitution doesn’t really say anything one way or the other on this issue, giving the Diet free rein to implement whatever legislative solution it likes (in this instance, most likely a continuation of the status quo).
Incidentally, this is a somewhat gloomy preview of what’s going to happen if and when legal challenges on equal marriage work their way through Japan’s courts. Article 14, as cited above, does not offer protection from discrimination on the basis of sexual orientation, and Article 24 defines marriage as being “based only on the mutual consent of both sexes… maintained through mutual cooperation with equal rights of husband and wife as a basis.” An activist or progressive court could happily rule that Article 14’s list of protections is non-exhaustive and that its protection from discrimination on the grounds of gender directly implies protection for sexual minorities, which takes legal precedence over Article 24’s mention of both sexes since equal marriage would extend, rather than curtailing, the protections Article 24 is designed to provide. Japan’s Supreme Court is not an activist or progressive court; it will rule that the present marriage rules are constitutional, and throw the whole issue back to the Diet (where the Abe Cabinet, deeply socially conservative, will bat them it of the field).
There’s no point being angry or disappointed in the Supreme Court over these rulings; it is what it is. The Court is operating from a far weaker and less well-defined position than its US counterpart, its capacity to carry out judicial review is hobbled by legal restrictions, and the Constitution on which it must base its rulings is riddled with contradictions and anachronisms. The Court’s long-standing habit of passing responsibility for decision-making on most issues back to the Diet is pretty much the only option open to it – and simply means that, for those who decry slow progress on social change in Japan, the buck stops with the democratically elected government, not with the Supreme Court or, for the most part, the Constitution. It also, incidentally, means that for significant progress to be made on an issue like equal marriage, a constitutional amendment would be required – meaning that perhaps some liberals could find common ground with conservatives who are determined to change the (extremely high) bar for constitutional amendment.