Top court puts onus on Diet to resolve surname issue

By Tatsuro Yasuda / Yomiuri Shimbun Staff Writer

18:19 JST, June 24, 2021

The Supreme Court’s latest ruling that laws requiring married couples to have the same surname are constitutional also took a not-so-subtle swipe at the legislative branch of government for not seriously addressing this issue in recent years.

Wednesday’s ruling suggested that rules on such family-related matters should be made by the Diet — rather than through a legal decision — and showed frustration that discussions had ground to a halt.

The decision, handed down by Chief Justice Naoto Otani at the court’s Grand Bench, came about 5½ years after the bench first ruled that requiring married couples to have the same surnames were constitutional. During this period, local assemblies across Japan have passed more than 100 resolutions calling for the introduction of a system that allows married people to use different surnames if they choose. In a Cabinet Office public opinion survey conducted in 2017, a record-high 42.5% of respondents supported establishing such a system.

A group of three couples wanting to have separate surnames took this latest case to the Supreme Court because they felt the ruling handed down in 2015 was already losing its legitimacy due to rapid changes in the social landscape.

However, the majority opinion of 11 justices filled only two pages of the about 50-page written decision. They agreed with the 2015 ruling that stated the laws were constitutional and put a heavy emphasis on elements such as “family unity.”

The majority opinion did acknowledge there had been changes in public sentiment since the 2015 ruling, including growing support for the introduction of a separate surname system and an increase in the proportion of women who had started working or taken up managerial positions. But the 11 justices concluded that, as things stand, the situation did not justify changing the 2015 ruling.

Reluctant to get involved

The Supreme Court has traditionally been reluctant to get involved in legal disputes regarding family matters.

Although the court has issued a number of “first rulings” since the start of this century as families become increasingly diverse due to the rise in divorces and remarriages, and the development of assisted reproductive technologies, in most cases the conclusions followed the provisions of the Civil Code.

“Issues pertaining to the family will require discussions and judgments based on a vision of our future society,” an experienced civil court judge said. “[The top court] believes this is a role that the Diet is precisely suited to play.”

Only 5½ years have passed since the Grand Bench’s first ruling on the issue of spouses having separate surnames. One court insider said, “If this conclusion was overturned so soon after it was made, the judicial system could appear to be unstable.”

The Supreme Court explained its stance by saying in the latest ruling that the question of how legislative policies should be was “on a different level” from the issue of a judicial review of whether the current rules were constitutional.

Even so, the individual opinions of the justices also revealed strong dissatisfaction with the Diet’s failure to start meaningful discussions on possibly reforming the system.

Three justices who agreed with the majority opinion, including Takuya Miyama, also provided supplementary opinions that said drawing up a system for separate surnames should be entrusted to the Diet. They also said it was possible that future changes in society, such as a further increase in the number of women who are disadvantaged by the requirement to have the same surname, could lead to these provisions being deemed unconstitutional.

Four justices, including Yuko Miyazaki, argued the ban on separate surnames was unconstitutional, as at the time of marriage 96% of women adopt their husband’s surname and many women experience a sense of loss. The justices expressed concern over the current situation in which a significant number of couples therefore have no choice but for their relationships to be de facto marriages, and repeatedly stated the necessity of a separate surname system.

Talks put off

The 2015 ruling said the court “does not mean to judge” a separate surname system “to be unreasonable,” and added this “is a matter that needs to be discussed and determined by the Diet.” This was aimed at spurring active discussions in the national legislature.

However, substantive discussions within the ruling Liberal Democratic Party started only in April this year. Those talks were quickly suspended and then postponed until after the next House of Representatives election. A supplementary opinion issued by several justices, including Miyama, said: “The Diet should constantly keep a watchful eye on changes in society. We hope serious discussions [on this matter] will be held.”