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Written by Joel Rheuben (University of Tokyo)

As reported in the New York Times earlier this month (and by the Sydney Morning Herald some two weeks later), Beate Sirota Gordon sadly passed away in the final days of 2012, aged 89. While the Times’ obituary provides an adequate summary of her life’s achievements, scholars of Japanese law will likely best know of Ms Gordon as the only female civilian member in the Government Section of the postwar Occupation forces, recounted in her 1998 autobiography, “The Only Woman in the Room” (now astonishingly overpriced on Amazon: see her verbal summary on YouTube instead).

In particular, having grown up in and witnessed first-hand the status of women in pre-war Japan, Ms Gordon drew on her childhood experiences to draft several of the human rights provisions of the Occupation’s draft for the Japanese Constitution, including the equal rights provision and another in respect of equality within marriage. Both were adopted into the final document without significant alteration. The latter, Article 24, provides:

Marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis.
With regard to choice of spouse, property rights, inheritance, choice of domicile, divorce and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.

Ms Gordon remained a campaigner for women’s rights in Japan even after returning to the United States. Yet some 66 years after the Constitution entered into force, the outcome of her efforts has been mixed. The position of women in Japanese corporate, social and political life is often referred to an need not be repeated here, other than to note that representation of women has in fact slid backwards in the most recent election. But nor is women’s equality assured even under the Civil Code, particularly in respect of marriage.

Article 733 of the Civil Code, for example, provides that women (but not men) are prohibited from remarrying for a period of six months after divorce. The spurious reason for this discrimination – to prevent disputes over paternity where a pregnant woman rushes to remarry – is both out of touch with reality and redundant in an age of over-the-counter pregnancy kits and medical paternity tests. Yet no serious proposal has ever been made to remove the provision. Similarly, Article 750 requires both husbands and wives to share the same family name – theoretically a gender-neutral provision, although in practice wives take their husbands’ names in more than 96% of cases. The previous Democratic Party government initially attempted to do away with this requirement, but was ultimately forced to back down after the change became too controversial.

At the southern end of the Pacific, “marriage equality” is used more often to refer to marriage between same-sex and transgendered couples than to shared surnames. In contrast with the active debate over same-sex marriage in Australia, consciousness of the issue in Japan is practically non-existent. This is partly attributed to the low priority placed on women’s rights in general, with lesbian and bisexual women taking the lead in pushing for legal protections for same-sex couples. The new LDP-government, whose party manifesto calls for constitutional amendment to enshrine respect for the family unit, stated prior to the most recent election that it opposed any special provision for LGBT rights, whether to marriage or otherwise.

On the other hand, also unlike Australia, where the Federal Parliament has recently confirmed its legislative position against allowing same-sex marriage, Japanese law does not explicitly preclude same-sex marriage, nor recognition of same-sex marriages conducted overseas. There is no equivalent in the Civil Code to Sections 5 or 88EA of the Commonwealth Marriage Act, restricting marriage to “a man and a woman”. Japan agreed several years before Australia to issue consular Certificates of No Impediment to same-sex couples planning to marry overseas, and has even issued spousal visas to same-sex spouses. However, all of this probably reflects a lack of concern over same-sex marriage due to its low prominence, rather than a genuinely liberal stance.

Indeed the dominant view is that Article 24 of the Constitution, requiring the mutual consent of “both sexes” precludes the possibility of same-sex marriage under Japanese law. While this has never been directly tested, a 1999 judgment of the Saga Family Court held (using somewhat circular reasoning) that same-sex couples cannot possess the requisite intention to enter into a married relationship as that term is traditionally understood, and hence purported same-sex marriages are void for lack of consent under Article 742 of the Civil Code. This remains the only Japanese case to have dealt with same-sex marriage, and is taken as authority for the proposition that the consent required under Article 24 of the Constitution is incompatible with same-sex relationships.

The Japan which Ms Gordon sought to change in drafting her provisions belongs to a different era: one many decades before “marriage equality” took on its current meaning. One can only speculate as to Ms Gordon’s personal views on same-sex marriage, which became legal in her home State of New York only the year before her passing. Nevertheless, there is an irony that a human rights provision drafted by her with a view to emancipating women’s role within the family could be subjected to a twisted interpretation in order to prevent some women (and men) from forming one.

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Japanese Law in Asia-Pacific Socio-Economic Context
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