TLI Talk: Family Law Reform through Constitutional Litigation?: The Persistence of Fossilized Rules and the Challenges for the Japanese Supreme Court

The Japanese Supreme Court may be entering an era of judicial activism. In 2013, the Court held that a rule of inheritance provided in the Civil Code, giving illegitimate children a lesser share of their parents’ estate than their half-siblings, was inconsistent with the Equality Clause of the Constitution. This was followed by another decision in 2015, in which the Court declared unconstitutional another provision of the Civil Code, which stipulated a six-month waiting period for remarriage only for women.

A certain inconsistency is visible, however, when these innovative decisions are contrasted with the fact that the Court affirmed the constitutionality of a statute requiring a married couple to assume a single surname. Emphasizing the neutrality of the text in the face of social reality in which 96% of married couples choose the surnames of husbands is not a persuasive way to justify the mandatory rule permitting no exception. The Chief Justice’s concurring opinion, however, seems to suggest that the Court should have stepped in had the dispute involved a specific minority group. This may be a sign that the Court is prepared to undertake a more active role in cases involving sexual minorities, such as when the issue in question is about same-sex marriage.

Biography

Keisuke Mark Abe, Ph.D., is Professor of Law at Seikei University in Tokyo. A specialist in comparative law, he is the co-author of several books including The Separation of Church and State in Historical Perspective (Sairyusha 2006) and Case Studies in Bioethics and Law (Yuhikaku 2d ed. 2012).

He is currently a visiting researcher at King’s College London, where his research focuses on the enforcement of constitutional values in a pluralistic society. He is working on a book on the transformation and future challenges of Japanese law under the pressure of globalization, examining in particular issues of gender and sexual orientation equality.

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