A. Is Japan a Country Generous to Same-Sex Relationships?

The history of same-sex relationships in Japan would not seem to suggest that it would be one of the last liberal democracies to recognize marriage equality. On the contrary, if history were a guide, one would expect the reverse: that it would be Europe, where same-sex relationships were referred to during the Renaissance as ‘the unmentionable vice’, that would lag behind in this regard.Footnote ⁷ The historical position of same-sex relationships is well captured by Gary P Leupp's Male Colors: The Construction of Homosexuality in Tokugawa Japan.Footnote ⁸

It is no secret to any careful student of Japanese society in the Tokugawa period (1603–1868) that during these two and a half centuries male gay behavior was extremely common, at least in towns and cities. Sex between males was not only widely tolerated among the articulate classes, but positively celebrated in popular art and literature.

This tolerance, bordering on idealization, of gay relationships changed with the arrival of the censorious West – Commodore Perry, the ‘black ships’, and the inevitable Christian missionaries. Lacking the ability to resist militarily, Japan faced the same choice as China did then, and myriad developing countries face today: present yourself as ‘civilized’ or face colonialization, in substance if not in name. Japan chose to adopt the trappings of civilization and – again foreshadowing today's developing world – began legal modernization following the Western model. Part of these reforms were aimed at fostering economic growth – never mind that early 19th century Japan had been one of the richest countries in the world without Western commercial law – but part of it was also moral. One result was the criminalization of sodomy in 1873, but the law was repealed in 1882. Japan clearly did not have the stomach to criminalize what had been acceptable behaviour, but the media treatment of sexual orientation turned negative and the era of the celebration of male-male sexuality ended. Unlike most of the rest of the world, however, there has not been any criminalization of same-sex relationships in Japan since.

In the background of Japan's tolerance is its religious tradition. The Japanese generally take a syncretic view of religion, with different Shinto, Buddhist, or Confucian ceremonies for different stages in life. The small minority of Christians are an exception, but their low numbers meant that religious opposition has never amounted to a serious political force. In contrast to the role of religion in the United States and Korea, or in Islamic countries like Iran, for example, there is no church, temple, or mosque that opposes same-sex marriage or that denies the ‘existence’ of LGB individuals.

Indifference has not, however, meant inclusion or respect. On the rare occasions when sexual orientation emerges in public, ridicule has been the norm. Japanese popular culture went through aゲー・ブーム (geibuumu) [gay boom] starting in the 1990s when television became saturated with gay personalities and comedians, who were characterized by ostentatious exoticism and carried names like Hard Gay, Matsuko Deluxe, and Mitz Mangrove. While these made LGBT individuals visible in the same sense that a minstrel show did to African Americans in the 19th century, such spectacles hardly made gays ‘exist’ by recognizing them as social beings. Bizarre as it may be, Deluxe himself never came out to his parents, presumably preferring to appear before millions of viewers as a ludicrous caricature than to initiate an intimate conversation with his family.Footnote ¹⁰ Gay, lesbian, and transgender advocates were not pleased by this portrayal of sexual minorities. As one spokesman for the community said, ‘Hard Gay's acceptance by the Japanese public shows me that there is a strong tendency here to see sexual orientation as something to be laughed at. That is sad.’Footnote ¹¹ Mangrove himself said, ‘We are not treated as human beings. We are okay as long as we say things that are not mainstream or that are sharp or vulgar.’Footnote ¹²

Surveys seem to bear Mangrove's observations out. Less than 20 per cent of Japanese in a national survey in 2019 said that they knew a gay person, as opposed to almost 90 per cent in the US.Footnote ¹³ Perhaps more tellingly, 78.8 per cent of LGB respondents had not come out to anyone; 25.7 per cent said that they would come out if the situation was right; and 40.1 per cent replied that it is ‘not necessary to come out even if there are no obstacles.’Footnote ¹⁴ Although only a minority of Japanese expressed repulsion at the idea of same-sex relationships, that repulsion increased the closer the putative gay person was to the respondent, peaking with the prospect that one's child were gay.Footnote ¹⁵ The depth of the taboo is hard to exaggerate. In their discussion of the chances of success in litigation, one of the reservations raised by advocates was that potential plaintiffs may be reluctant to appear openly in court.Footnote ¹⁶

Two questions spring from this reluctance of even advocates of the community to identify publicly as beneficiaries of their cause. First, why would activists, including lawyers, be unwilling to identify their sexual orientation even implicitly by representing LGB interests in a test case? An initial answer is fear of expulsion from a firm, the loss of clients, antipathy from fellow attorneys, and the like, but these direct forms of discrimination are not among the usual complaints of Japanese gays. As one of the two openly gay members of the National Diet put it, ‘homophobia is invisible here and we have to fight this silent avoidance.’Footnote ¹⁷ Although one can only speculate, it seems likely that a gay or lesbian lawyer would hesitate to represent LGB clients for the same reasons that Matsuko Deluxe did not come out to his parents. One might characterize that reluctance as shame or as a reluctance to have the kind of uncomfortable conversations that gay Americans forced themselves (and their families and friends) to endure not too long ago, or simply as a desire to maintain a general sphere of personal privacy that is stronger in Japan than elsewhere. Whatever the motivation, however, this dance around sexual identity makes it possible to function in mainstream society as privately gay individuals leading unexceptional lives, thereby avoiding embarrassment, discomfort, and exposure as somehow different. Neither they nor those around them would need to publicly acknowledge that they live in a society where gays exist openly as normal members.

The situation is not static. In the first place, the obstacle to acceptance is more discomfort than disgust, or as one group of proponents put it, 気持ち悪い (kimochi warui) or the ‘yucky feeling’ akin to that which one gets when thinking of one's parents having sex.Footnote ¹⁸ Even conservative Liberal Democratic Party (LDP) politicians such as Sugita Mio go no further than criticizing gays for being ‘unproductive’ for not bearing children, and even then, her own party's website criticized her comments, advocating tolerance of sexual diversity instead.Footnote ¹⁹ From a more positive perspective, many local governments have passed ordinances recognizing same-sex unions of various sorts.Footnote ²⁰ In a unitary legal system such as Japan, however, the legal effect of local action is limited. Perhaps more significantly, at least in the sense of demonstrating the national government's attitude, the Ministry of Justice recently reversed a deportation order for a Taiwanese man illegally overstaying his visa, explicitly citing the importance of his 30-year relationship with a Japanese man.Footnote ²¹ Nor are LGBT individuals reclusive or secretive. There is an annual gay pride week in Tokyo, and openly gay civil society groups have emerged. One of these, the Japan Alliance for LGBT Legislation,Footnote ²² has become actively involved in local electoral politics – surveying candidates about their stance on relevant issues and making the results public – and several openly gay politicians have been elected to local office.Footnote ²³

The prospects for legislative action at the national level are less bright. Although opposition parties submitted a bill calling for same-sex marriage in mid-2019, there are only two openly gay members of the Diet, and LGB rights are rarely discussed or debated publicly.Footnote ²⁴ The LDP and former Prime Minister Shinzo Abe have opposed same-sex marriage and have claimed that the Constitution of Japan 1947 (the Japanese Constitution) does not anticipate marriage equality, much less require it. At the national level, the embryonic change in public attitudes will probably have to be accelerated, and transformed from fascination with the bizarre to boredom with the ordinary. To make sense of the prospects and motivations for such a change, we will look closely at the rhetoric used by same-sex marriage advocates, but first we must consider a common feature of the same-sex marriage debates elsewhere (particularly in the United States), a feature that some observers see as instrumental in the American movement's eventual success.

B. What's Missing?

If a history of acceptance combined with contemporary indifference are not enough to bring about the recognition of gays’ existence as equal citizens, what more is needed? If the American experience can be a guide, however idiosyncratic it may be, the answer may simply be murderous hatred or, put more gracefully, the paradoxical role played by religious opponents of same-sex marriage. Conservative Christian groups began to mobilize against same-sex relationships in America during the 1980s in response to the cultural shifts which, in these groups’ eyes, augured the moral collapse of society. The religious right's activism against even minor steps in favour of LGBT rights at a time when marriage equality was inconceivable arguably brought more attention to the issue than gay rights groups could or would have done themselves. Professors Michael Dorf and Sidney Tarrow argue that:

Although neither typical nor itself connected to Christian intolerance, the 1998 murder of Matthew Shepard in Laramie, Wyoming, is often cited as illustrating this factor. One observer evaluated its impact as follows:

The impact of the repeated incidents, of which the Shepard murder is perhaps the most sensational example, was twofold. First, the brutal violence forced many ‘straight’ Americans to acknowledge the presence of their gay compatriots for the first time. Although each person's story is unique, the effect on the general population can be illustrated neatly by the reaction of Wyoming sheriff Dave O'Malley, who had investigated Shepard's murder:

The second impact was on the gay community itself and not solely or even primarily engendered by sensational events like the Shepard murder, but more importantly, by the persistent campaign of conservative groups against any recognition of their existence. The level of virulence and disgust convinced many previously indifferent gay and lesbian Americans that they could no longer remain comfortably and invisibly in the shadows. They saw their social status and individual dignity as being attacked, and increasingly decided to join gay rights organizations, come out to friends and colleagues, and eventually demand recognition as fully participating and responsible citizens. Such recognition required the normalization of their lives together, which in turn required same-sex marriage.Footnote ²⁸ Accompanying these coordinated but quintessentially individual acts was a litigation campaign, initially primarily in state courts and later in the federal courts, eventually leading to the Supreme Court's legalization of marriage equality in Obergefell v Hodges in 2015.Footnote ²⁹ That decision, therefore, may be more accurately interpreted not as a singular legal triumph – as a preoccupation with judicial activism might lead one to believe – but as a recognition of a broad-based attitudinal change engendered by an explicit strategy among American gays to normalize their existence. They did this by presenting themselves as not only entitled to liberty and individual rights but also – and this is more politically salient – as being worthy of enjoying the social benefits common to all citizens and willing to assume the concomitant social responsibilities that married couples shoulder in every society.

If this interpretation is even partially correct, it presents difficult questions for Japanese activists. There is simply no similar phenomenon in Japan that would dramatize the pain of intolerance or galvanize gays and lesbians to action. As we will see in the next section, there is bullying in school – the fear of shame and ostracism is enough to drive some to suicideFootnote ³⁰ – and there has been at least one murder-robbery at a gay cruising spot in Tokyo.Footnote ³¹ But violence is rare, and even rhetorical opposition is limited to the relatively mild level of Sugita Mio's ‘unproductive’ aspersion. The point is not that legalization of same-sex marriage requires murder and hatred. Many societies, including Taiwan (which was the first in Asia to do so) have recognized gay marriage without the high cost of virulent religious opposition on the scale seen in the United States.Footnote ³² They have done so, not as a reaction to hatred, but as a vindication of positive social values. Japanese activists are attempting to follow that path, and we now turn to a review of what those positive values and social goals are, as articulated in the Valentine's Day litigation.

C. Why Marriage Equality? The Right to Self-Expression or the Alleviation of Pain?

In 2015, thirty-one Japanese lawyers formed a litigation team or 弁護団 (bengodan) and filed a human rights petition with the Japanese Federation of Bar Associations (JFBA), asking that the JFBA formally request that the Prime Minister and the Minister of Justice draft legislation legalizing same-sex marriage to be passed by the Diet.Footnote ³³ The petition was followed by a monograph, Same Sex Marriage: Everyone has the Right to Marry in 2016,Footnote ³⁴ compiled and edited by the same bengodan. This detailed the social, political, and humanitarian reasons for same-sex marriage. The formal complaints filed three years later are based on Same Sex Marriage, and an analysis of those reasons is indispensable to understanding the motivations of the plaintiffs, their lawyers, and their supporters. Confining our inquiry to the four corners of the Valentine's Day cases alone, however, would limit what the litigation can tell us about the role and meaning of law in Japanese society or what the realization of rights like marriage equality means to individual Japanese. For this deeper insight, a comparative law approach is needed, and we therefore now turn to a brief review of the corresponding arguments made by American advocates in the decades-long struggle leading to the legalization of same-sex marriage in Obergefell.Footnote ³⁵

Justice Anthony Kennedy's majority opinion opens with an unequivocal assertion of the universal freedom of self-expression: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.’Footnote ³⁶ The initial question for Kennedy was the constitutionally guaranteed right to be oneself, which is similar to what Article 13 of the Japanese Constitution guarantees.Footnote ³⁷ It was not until Part II of Justice Kennedy's opinion that he mentions the institutional role of marriage in ‘binding families and societies together’ and noted that ‘Confucius taught that marriage lies at the foundation of government’.Footnote ³⁸

If the American plea for same-sex marriage was based on granting the LGB community the liberty of self-expression and allowing them to participate equally as mature adults in society, the Japanese emphasis is on the alleviation of unwarranted pain. Of course, both communities are diverse and the public discourse includes rhetoric from all points on the spectrum between these two positions (assuming that they are even on a spectrum). American advocates speak of the hardships of same-sex couples living without legal status, and the editors of Same Sex Marriage did not ignore the constraints on individual dignity that were at the heart of Justice Kennedy's opinion. Both movements also stressed the constructive role that normalized LGBT individuals could play in society. Jonathan Rauch in Gay Marriage: Why It is Good for Gays, Good for Straights, and Good for America notably argued that gay marriage would be good for straight marriage and social stability generally and expressly denigrated the idea of a distinct ‘gay culture’.Footnote ³⁹ The editors of Same Sex Marriage noted that gays can have just as virtuous relationships as straights, that same-sex marriage will not decrease the birth rate, and that the current problems with heterosexual marriage in Japan should not prevent the creation of same-sex marriage. But to claim that the thrust of the Valentine's Day litigation was about either self-realization or improving the institution of marriage would misrepresent the lawyers’ central arguments.

On the contrary, the individuals portrayed in the book speak of pain. The stories of four of the petitioners who spoke at the press conference launching the book will illustrate: Tanaka and Kawata from Kagawa Prefecture, together for eight years, told of their anxiety over Kawata's inheritance rights if Tanaka, in whose name they had bought a home, were to die suddenly. Makimura Asako told of the bitterness of feigning laughter as her middle school classmates taunted another kid with yells of レズ (rezu) [lesbian], the relief she and her French partner found after marrying in France, and her dream that it would one day be possible in Japan. These three were all ‘out’ to their parents and friends, but the fourth remained closeted, appearing at the press conference under a pseudonym and with her face covered. She directly addressed the question of why so many gays and lesbians prefer to remain invisible: ‘I have been living with my significant other for more than half of my life, but I haven't talked about her with my parents or friends. I truly wish our future generations who are going to have experience in romance will have no hesitation about their partner who may or may not be the same sex, and have the blessing [of others] as heterosexual couples do.’

The narratives described above are typical. The details are familiar, and similar to those suffered by same-sex couples everywhere. Suffice to say that the pain includes the isolation and anxiety when a fundamental part of one's identity is not recognized by society and one's relationships are not acknowledged by family, colleagues, and neighbors. Although the list of legal disabilities in Same Sex Marriage does not include the fear of entanglement with the criminal justice system that long characterized the suppression of same-sex relationships in the West, it remains considerably longer than the list of emotional consequences. The legal disabilities start with the creation of a relationship, then the inevitable events of family life: raising and gaining legal custody of children, buying or leasing a home, dealing with illness and injury, episodes of domestic violence and separation, access to social insurance and welfare benefits, and so on. Even death may not end the legal incapacity. A partner's family may refuse to allow participation in a funeral, and access to what was in practice joint property may be denied.

A. Wrongful Dismissal

Japan is known for its practice of ‘lifetime employment’, under which an employee enters a company at an early age and never leaves, rising in lockstep with his or – much less often – her age cohort regardless of merit. Invariably celebrated (or condemned) as a product of Japanese culture, this phenomenon did not exist in pre-war Japan but was created by post-war courts which overrode clear statutory language that established at-will employment. The story of Mr Shioda and his employer, Kochi Broadcasting, illustrates this broad trend.Footnote ⁴² Shioda was assigned to read a ten-minute news segment at 6 am. On 23 February 1967, however, he did not awake until 6:20, missing the entire broadcast. Two weeks later, he again overslept but managed to get to the microphone by 6:05 to read half of the broadcast. Remarkably, since his failure had literally been broadcast to the world, Shioda initially did not report the second incident and later lied about it. The company discovered the facts and fired him. Shioda sued for wrongful dismissal.

To win, he had to overcome the Civil Code and the Labor Standards Law that gave both parties the freedom to terminate without cause. To make the task even more difficult, the plaintiff (Shioda) was hardly blameless. Nonetheless, the District Court, High Court, and Supreme Court all ordered his reinstatement. The Supreme Court did not shy away from the facts. It recognized that the company had spared Shioda a disciplinary discharge, which would have hindered his finding other employment; that he had violated work rules; that the company had suffered therefrom; and that Shioda had not dealt with the incident honestly. ‘However,’ the Court continued:

The Court went on to note that Shioda's job performance up to this point had not been ‘particularly bad’ and that he had eventually apologized for the second incident. These circumstances made the company's reaction unreasonably severe in the eyes of the Court, and it declared the dismissal inconsistent with the ‘common sense of society’ embodied in the general clauses of the Civil Code, Articles 1 and 90. The former requires that private rights conform to public welfare, be performed in good faith, and not constitute an abuse of right. The latter adds the equally vague provision that any ‘juristic act whose object is such as to be contrary to public order or good morals is null and void.’

Although certainly more colorful than most, Kochi Broadcasting is not an isolated case but just one iteration of a series of labour law cases protecting employees from dismissal, so much so that the practice has become routine and fully anticipated by employers. For foreign observers, however, it is important to restate the significance of the judicial role that the decision and opinion exemplifies. It is not its solicitude for employees; while many developed countries have made it very difficult to fire employees, they have done so via legislation and not via judicial fiat in direct defiance of existing legislation. Japanese courts have not limited their activism in employment cases to dismissals, but have also systematically narrowed companies’ discretion across a wide range of areas including discipline, transfers, and the termination of temporary employment.Footnote ⁴⁴ In doing so, they have relied on general clauses in the Civil Code like ‘good public order’, ‘good faith’ or ‘the common sense of society’ to nullify legislation on the basis of an abuse of rights. This pattern has been repeated in the area of private gender discrimination in employment. But before we consider those cases, it is worth briefly recounting the courts’ role in contested divorces where, instead of resorting to the general clauses or the abuse of right doctrine, courts simply ignored legislative language to make marriages almost as difficult to unilaterally sever as an employment relationship.

B. Contested Divorce

If they agree, Japanese spouses need only register with their local family registry to get a divorce. If it is contested, however, judicial action is required, and Article 770(1) of the Civil Code lists the permissible grounds. The first four restate pre-war fault-based grounds such as adultery, but the fifth, ‘any other grave reason for which it is difficult for the [plaintiff/spouse] to continue the marriage’, transformed the pre-war fault-based regime into what has been called an ‘incompatibility’ regime.Footnote ⁴⁵ The creation of a non-fault regime was part of the reform of family law under the American Occupation, and was intended to replace the patriarchal 家 (ie) [home] system – seen by reformers as a pillar of militarism – with a marriage system based on party autonomy, gender equality, and individual dignity.

In 1952, however, the Supreme Court essentially reinstated the fault-based regime by interpreting the fifth ground so as to reject any divorce petition by a morally-culpable spouse. Although the Court portrayed its goal as the protection of morality, stating that ‘the primary role of the courts is the protection of good morals,’ they were not seeking to revive the pre-war system. On the contrary, since it was usually the husband seeking a divorce, the practical effect of the decision was to deny a divorce to a husband who had committed any transgression – adultery being the most likely one – regardless of how irretrievably the marriage had broken down. This move may be interpreted as an attempt to protect the marital status of women or to at least give them a bargaining chip in the division of marital property. Whatever the Court's motivation, its action cannot be understood as anything other than the favouring of its own interpretation of prevailing social conditions over those of conservative male legislators.

In case anyone might think the 1952 decision an aberration – perhaps explainable as a one-off rejection of Occupation norms imposed on the citadel of traditional Japanese values – the Court again unilaterally changed the rules for contested divorce in a 1987 decision. At least this later decision possessed the virtue of candour as the Court explicitly overruled its prior decisions.Footnote ⁴⁶ By this time, the financial and social position of Japanese women had improved dramatically, and the Court significantly liberalized the fifth ground of Article 770(1) by allowing an adulterous husband to pursue a divorce. Despite there being no change in the statutory language, the Court reversed course and established a set of factors to be considered when judges contemplate granting divorces to ‘culpable spouses’, and since then, the judiciary has been tinkering with the meaning and weight of these factors. In the meantime, the Diet actively discussed amending Article 770 but has not acted, further underscoring the Court's lack of deference to the legislative branch, at least in this regard.

C. Gender Discrimination in Employment

Whatever influence one attributes to the courts’ remaking of labour and divorce law, it is undeniable that both labour and marriage practices subsequently conformed to the norms imposed by the courts in these areas. In contrast to pre-war practice and in defiance of applicable statutory language, post-war Japan experienced extremely low divorce rates and, although Japan is hardly an employee's paradise, it remains extremely difficult to dismiss employees. The courts’ equally aggressive interpretations of the doctrines concerning gender discrimination, on the other hand, have been met with less wholehearted acceptance by the government and the people of Japan.

Japanese women share the judiciary's reputation for passivity. While they are given credit for contributing to social stability, their role is generally portrayed as being good wives and mothers. They are seldom seen depicted as demanding their legal rights, but instead as remaining quietly in their place. Their refusal to meekly accept their husbands’ requests for divorce is one exception to this stereotype. We now examine a second. Starting in the late 1950s, Japanese women began to sue their employers for sex discrimination and have continued to do so up to the present.Footnote ⁴⁷ From the beginning, the courts not only supported them, but did so in the face of contrary statutory language and virtually universal social practice.

When these cases began, the statutory protection against sex discrimination in employment was thin, and employers routinely discriminated against women in virtually all terms of employment. Article 14 of the Japanese Constitution prohibits sex discrimination, but it applies directly only to state action, and the only statutory provision covering sex discrimination was Article 4 of the Labor Standards Act (LSA),Footnote ⁴⁸ which prohibited wage discrimination on the basis of sex. In contrast, ‘sex’ is conspicuously absent from Article 3 of the LSA, which forbids discrimination on the grounds of citizenship, religion, and social origin. Other sections of the LSA condoned discrimination by barring female workers from certain types and conditions of work. Labour law not only tolerated, but fully anticipated sex discrimination across the spectrum of employment relations. Nonetheless, the courts found enough authority in the general clauses to prohibit a range of employment practices including forced retirement upon marriage and sexual harassment in the workplace.

Again, the best way to illustrate the courts’ approach is with a real-life example. Suzuki Setsuko went to work for Sumitomo Cement in 1960, when Sumitomo's employment regulations required women to retire upon marriage. Three years later, she married, refused to resign, and was fired. The Tokyo District Court, in an approach confirmed later by the Supreme Court, noted the economic hardship imposed on women who were forced to retire upon marriage, and concluded that such hardship was a substantial restriction of the freedom to marry provided in Article 24 of the Japanese Constitution.Footnote ⁴⁹

Since the Japanese Constitution was not directly applicable, the court turned to Article 90 of the Civil Code and the requirement that private employment be consistent with ‘public order and good morals.’ The defendant, Sumitomo, pointed out that similar practices were universal in Japanese employment; they were expected and accepted as natural and fair by workers, unions, and employers; and they were consistent with Japanese values and traditions. The court rejected this invitation to ratify social practice and instead referred to the ideals that they found embodied in the Japanese Constitution: ‘The essential equality of the sexes must be realized. The prohibition of unreasonable discrimination not just in relationships between the state and private individuals, but also in relationships wholly within the private sector, is a fundamental principle of the law.’Footnote ⁵⁰ The court brushed aside the provisions of the LSA and ridiculed Sumitomo's argument that women were inherently inefficient, declaring that, unlike the shrine maidens of Shinto ritual, where religious doctrines require virginity, there was no reason for requiring Sumitomo's female employees to be single.

Over the next two decades, Japanese courts used this approach to strike down a range of virtually universal employment practices without any specific statutory basis, ironically justifying their actions by reference to general clauses that are themselves premised on social norms. As it did in the issue of contested divorce, the courts did so in the face of legislative inaction. Instead of turning to the social norms referenced in Articles 1 and 90, the court relied almost entirely on the Japanese Constitution, which it had previously declared did not apply to private behaviour.

As with Kochi Broadcasting, it is important not to understate the boldness of the Japanese courts here. First, the general clauses were meant to provide a means to reach a just result in cases where the strict application of the legal rules would lead to a result that was inconsistent with the purpose of the rule. They were never meant to give the courts power to supplant, even temporarily, the legislature as the institution responsible for establishing fundamental norms. Second, these decisions went directly against the interests of the Liberal Democratic Party. Frustrating aging businessmen who wished to marry their mistresses, forcing companies to retain lazy workers, and preventing employers from utilizing female employees as they wished were not part of the LDP platform. Nor is it likely, given that the LDP was repeatedly re-elected during this period, that the courts’ values were strongly shared by most Japanese. It is, of course, possible to argue that the judiciary's actions were just part of a larger evolution of social attitudes, and that the statutory rather than constitutional basis of their reasoning still left the Diet with the power to respond. Support for this hypothesis lies in the fact that the Diet never repudiated the courts’ actions. However, that does not explain why it was the judiciary that pushed the pace of change. Wherever one might attribute the cause, the boldness, and the progressive direction of the courts’ interventions are clear, even when compared to arguably the most aggressive judiciary in the world: that of the United States.

D. Discrimination on the Basis of Gender Identity

In 2003, the Japanese Diet passed the Gender Identity Disorder Act (the GID Act)Footnote ⁵¹ that gave transgender individuals a conditional right to change their gender in the family registry. To take advantage of the law, an individual must first satisfy the definition of GID under Article 2: have a clear sexual identity at birth; permanently identify with an alternative gender; intend to conform physically and socially to that alternative gender; and be diagnosed by two or more competent physicians as having GID. Once the person has satisfied this definition, he or she must also satisfy the following statutory conditions: (1) be at least 20 years old; (2) be unmarried; (3) have no minor children; (4) have no gonads or permanently lack functioning gonads; and (5) have ‘genitalia that closely resemble the physical form of the alternative gender.’ Once these provisions, which effectively require sterilization and sex reassignment surgery to meet (4) and (5) are met, the individual can petition the Family Court for adjudication of his or her change of gender. Once successful, Article 4(1) requires that the applicant be ‘regarded as having changed to an alternative gender in the application of the Civil Code and all other laws and regulations.’ Japanese courts have upheld the statute against criticism that both the exclusion of married persons and the sterilization requirement are too restrictive,Footnote ⁵² but they have done so ambivalently and with a generally sympathetic approach to transgender rights, as two cases will demonstrate.

The first case, S Company Case,Footnote ⁵³ was a wrongful dismissal case in 2002, one year before the passage of the GID Act. The plaintiff, who had been diagnosed with GID and begun transitioning from male to female, requested that the defendant, S Company, accept her as a woman and allow her to work wearing women's clothes and to use women's facilities. The defendant rejected her request, ordered her not to wear women's clothes, accessories, or make-up, and transferred her to another department. She refused and the defendant terminated her employment. She sued, and the Tokyo District Court found her dismissal to be unreasonable. The opinion first recognized that GID was a ‘medically accepted condition’ and then found that the plaintiff had ‘from childhood felt strong discomfort living and growing up as a male and gradually realized her identity as a woman’, and that:

In response to the argument that her transition had disrupted the workplace, the court chastised the defendant in terms reminiscent of its comments about ritual virginity in Sumitomo Cement:

The court then concluded that although the plaintiff's refusal to accept the transfer and comply with the conditions of continued employment may have met the formal grounds for dismissal, the circumstances of the case made the dismissal disproportionately harsh and therefore invalid as an abuse of right.

The same didactic tone dominates the second case twelve years later, despite a change in context – from the highly protected realm of wrongful discharge to an application to a private golf club.Footnote ⁵⁶ This time, the transgender female plaintiff had received judicial permission to change her gender identification in the family registry. Shortly thereafter, she purchased shares in the defendant club for JPY¥2,150,000 (approximately USD$20,000) and applied for membership. The application was rejected, according to the court's findings, ‘solely because she was diagnosed with gender identity disorder, had sex reassignment surgery, and upon such surgery, received a Family Court ruling mandating change in her gender status.’Footnote ⁵⁷

She sued. The court began by stating that the GID Act was aimed at ‘eliminating the social disadvantages that persons with gender identity disorder face.’Footnote ⁵⁸ It then dismissed the defendant's argument that her admission to the club, especially her participation in competitions, would cause ‘strong anxiety and confusion’ by holding that the plaintiff ‘is a woman in terms not only of family registry, but also of appearance, including voice and external genitalia, and that there has not been any particular confusion when plaintiff had used facilities for women at golf courses (including the defendant's) as well as at other places’ in the past.Footnote ⁵⁹ Reminiscent of Kennedy's Obergefell opinion, the court characterized the plaintiff's injury as the ‘denial of the basis of her personality’, but emphasized the unnecessary infliction of pain in a manner similar to the S Company decision:

E. Discrimination Against the LGB Community

Compared to gender identification discrimination, there has been only one case examining discrimination against gay males: the Tokyo High Court case of OCCUR v. Fuchu Youth Hostel.Footnote ⁶¹ The facts are straightforward.Footnote ⁶² In February 1990, OCCUR, a group of young LGBT adults, stayed at the Fuchu Youth Hostel administered by the Tokyo Metropolitan Board of Education. When other guests, specifically an elementary school soccer team and members of a Christian organization, called OCCUR members ‘homo’ and ‘おかま(okama) [fag]’, OCCUR members demanded that the hostel open a discussion. During the discussion, a leader of the Christian organization told OCCUR members that the Holy Bible provided, ‘If a man also lie with a male, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death’, and that same-sex relationships should never be allowed. When OCCUR members disagreed, a hostel official frequently interrupted in support of the Christian youth organization. A month later, when OCCUR applied to stay overnight again, they were refused. The formal ground was the likelihood of a disturbance, but the court noted that after the initial incident, the hostel manager had researched the term ‘homosexuality’ in the Ministry of Education's ‘Basic Document about Problem Behavior of Students’, which warned that:

The hostel further argued that its policy of tolerating no sexual activity on its premises was impossible to implement with gays because it could not be avoided by requiring same-sex roommates.

In this instance the court was more charitable toward the defendant's behaviour than in S Company or Sumitomo Cement, noting that knowledge about sexual orientation in 1990 was underdeveloped and that it was やむを得ない (yamu wo enai) [inevitable] that the hostel manager would fear a negative impact on other guests, especially elementary school students. Nonetheless, the court found for the plaintiff on the basis of Article 21 of the Japanese Constitution's guarantee of freedom of assembly and Article 244 of the Local Autonomy Law, which guarantees equal access to public facilities.Footnote ⁶⁴ While recognizing the defendant's policy of preventing sexual activity, the court refused to assume that the policy could be addressed in only one way. On the contrary, the court chastised the Tokyo Education Committee for considering only the ‘common social customs of heterosexuals’, noting that ‘it is necessary for the Committee to show meticulous consideration for gays, as a minority, and to ensure that their rights and interests are upheld.’Footnote ⁶⁵ It concluded with the admonition that:

Common to all these cases is the judiciary's use of open-ended norms to help disadvantaged groups, despite weak statutory basis for such intervention. Indeed, such interventions were at times in direct defiance of existing law. What are the chances of these same judges intervening on behalf of gays and lesbians wishing to marry? Before we consider such possibilities, a note of caution: while these examples certainly provide grounds for optimism for the plaintiffs, we must remember that the constitutional nature of the same-sex marriage litigation creates a potentially starker and more direct conflict between the courts and the democratic branches than do cases based on general clauses of the Civil Code. While none of the foregoing instances of judicial activism were repudiated by subsequent legislation, the point is that they could have been. The situation with our present cases is considerably more complicated, as we shall see.

A. The State Redress Act

Tort claims against the government must be brought under the State Redress Act, which states:

Although primarily used for straightforward tortious behaviour against wayward, negligent, or corrupt officials, this law has also been used to attack government practices and policies by characterizing them as violations of the plaintiffs’ personal rights under tort law. Doing so avoids the stringent threshold and jurisdictional requirements of the Administrative Case Litigation Law like standing, exhaustion of remedies, and ripeness, which combine to put much bureaucratic action beyond immediate review.Footnote ⁶⁸ A tort approach may also sidestep a direct confrontation with official governmental policy decisions. As such, the State Redress Law was used in early environmental litigation, but more pertinent are constitutionally-based cases such as a case in 2005 that successfully challenged the denial of voting rights to overseas resident citizensFootnote ⁶⁹ and a case in 2015 contesting the constitutionality of a Civil Code provision prohibiting ex-wives, but not ex-husbands, from remarriage within six months of divorce.Footnote ⁷⁰ Like the Valentine's Day litigation, the plaintiffs in the latter case argued, first, that the gender differentiation violated Articles 14 (equality) and 24(1) (freedom to marry); second, that the Diet's failure to repeal the provision constituted a tortious failure to perform its constitutional duty; and, third, that the State was liable for any damages caused thereby. The Supreme Court phrased the requirement as follows:

Based on these criteria, the plaintiffs in the Valentine's Day cases had to show: (1) that the limitation of marriage to heterosexual couples was clearly unconstitutional; (2) that the Diet should have been aware of its unconstitutional nature; and (3) that the Diet had failed to revise or repeal the offending provisions (4) for a long time (5) without any justifiable reason. We now turn to the substance of their arguments addressing each element, beginning with the constitutional obligation to provide for marriage equality.

B. The Freedom of Marriage

To set the stage for the argument that sexual minorities have an equal right to marry, the plaintiffs had to show that lesbians and gays are normal citizens under Article 24, and not pathological aberrations. To do so, the Complaint reviewed the science demonstrating that human sexuality is diverse; that diverse sexual identifications are natural expressions of human sexuality; and, ultimately, that the idea that only heterosexuality and cisgender are normal is incorrect. Once it was established that there is nothing pathological about same-sex couples, it follows that gays deserve the same level and type of respect with regard to marriage as that mandated for all persons under Articles 13, 14, and 24.

The first doctrinal step argued that Article 13's respect for individual dignity constituted ‘the fundamental principle at the heart of the Constitution’ and thus the basis of the freedom of marriage of Article 24:

It was then necessary to connect individual dignity to the social importance of marriage, and hence its importance to a normal life for lesbians and gays, who had been shown to be ordinary human beings with the same desire and need for a stable life partner. This second step may actually be easier than the first in the Japanese context. Although perhaps central to the structure of all secular democracies, the institution of marriage holds a particularly prominent place in Japan's post-war democracy, a place belied by the mundane recitation of mutuality and equality in Article 24. To understand the gravamen of the plaintiffs’ argument, a brief review of the role of marriage and family in pre-war Japan is necessary.

The 1898 Meiji Civil Code (Meiji Code) was part of Japan's response to Western imperialism, demonstrating that Japan could be a civilized country with a modern legal system. Consistent with that purpose, the Code was based on European models, at times slavishly so. The exception was the chapter on the family, which the Meiji leaders saw as too fundamental to Japanese society to entrust to foreign models. The goal was to create a legal structure that would preserve the essence of Japanese tradition and serve as a bulwark against the Westernization of society; or at least, such was the rhetoric. In fact, family law under the Meiji Code did not reflect the reality of Tokugawa life, but was instead an attempt to legislate an idealized vision of the family of the samurai class. In other words, it was an invented tradition, like the post-war tradition of permanent employment or low divorce rates.

The result was the ie, usually translated as ‘household’, with a patriarch at its head. To ensure that the ie became the basic intergenerational unit of society, the Meiji Code embedded marriage deeply within the family hierarchy and drastically limited the autonomy of parties to marry without the patriarch's consent. Although it was the instrumental creation of late-19^th century legislators, the ie was routinely referred to as ‘feudal’ in the aftermath of the war and was seen as the social basis of authoritarian and militaristic pre-war Japan. Consequently, the creators of the Japanese Constitution were at pains to guarantee individual autonomy in the choice of spouse and spousal equality in the course of the marriage. It is therefore not surprising that the Complaint expressly connected the conformity, hierarchy, and subservience of pre-war marriage to militarism and war:

The plaintiffs then quoted a leading constitutional law scholar, Ashibe Nobuyoshi, to confirm that the concept of social diversity included a multiplicity of family structures: ‘Diversity in society, which is the basis of democracy, can only be secured by guaranteeing the right of individuals to autonomously determine the ideal form of their families.’Footnote ⁷⁴

This shows that Article 24 was not simply part of the general post-war reforms, but was consciously aimed at incorporating the dignitary ideals of Article 13 into a totally re-structured model of the Japanese family: from state-imposed conformity to an institution central to a pluralistic democracy. This was also the plaintiffs’ approach in dealing with what was perhaps their most daunting textual obstacle: the inclusion of ‘both sexes’ and ‘husband and wife’ in Article 24 itself. After noting that the Civil Code nowhere ‘specifies that having two people of the opposite sex is a condition for marriage nor does it indicate that only marriage between individuals of the opposite sex is recognized under the Constitution’, the Complaint referred to the transformational goals of the post-war family reforms and declared that ‘there is no basis for deeming that the provision prohibits marriage between persons of the same sex under the law’.Footnote ⁷⁵ Adding oblique support to this claim is language in a Supreme Court case in 2015, which challenged the statutory requirement that spouses adopt the same surname.Footnote ⁷⁶ While concluding that the requirement was constitutional, the Grand Bench referred to Article 24 as ‘understood to indicate clearly that whether to marry, when to marry, and whom to marry should be left to the decision of the parties, having equal rights and free will’.Footnote ⁷⁷ The plaintiffs were quick to point out that the court in that case:

C. The Principle of Equality

The second doctrinal leg of the plaintiffs’ argument does not draw on any unique characteristics of Japanese history or social structure, but simply argues that restricting marriage to heterosexual couples violates Article 14's requirement of gender equality. The Complaint begins with the pain suffered by gay couples because they lack official certification of their status:

After noting the higher rate of suicide among LGBT individuals and other harms to personal dignity and social acceptance, the Complaint summarizes the role of marriage in eliminating discrimination generally:

As psychologically important as recognition may be, the Complaint nonetheless repeats the emphasis of Same Sex Marriage and devotes more than twice as much space to the tangible injury suffered by same-sex couples. The litany of harms ranging from inheritance rights to access to joint mortgages not only provides grounds for damages but also demonstrates the magnitude of damage necessary to trigger strict judicial scrutiny of any government rationale for the discrimination. These dignitary, psychological, physical, and financial harms were then brought under the gender and social status categories of Article 14 by the reassertion that sexual orientation is immutable and that LGB individuals are a small despised minority unable to rely on the democratic process to protect their rights.

The last section of the plaintiffs’ equal protection argument addresses potential grounds for prohibiting same-sex marriage. It begins by reiterating that the purpose of marriage is the stabilization of the personal connection between partners, whatever their gender orientation; it then goes through, seriatim, ‘the meaning and purpose of each of the main rights and benefits associated with marriage under the Civil Code’: the cooperation and support obligation of Article 752; the right of inheritance under Articles 890 and 900; the presumption of common ownership and allocation of assets in case of separation (Articles 762(2) and 768); and joint custody of children (Article 818(3)). In none of these rights and obligations, from mutual support, to economic structure, to parental responsibilities, is the gender of the parties relevant. The section concludes that ‘with respect to any of the main rights and benefits that accompany marriage pursuant to the Civil Code, when examined in light of their meaning and purpose, not a single one logically requires that a couple be heterosexual’.Footnote ⁸¹

D. The National Diet has Negligently Failed to Act

We now return to what may be the most idiosyncratic of the requisite elements for success under the State Redress Act: proof that the National Diet's failure to provide for marriage equality constituted tortious dereliction of duty toward the plaintiffs. As described above, the first element – the unconstitutionality of the status quo – was addressed by the plaintiffs’ arguments based on Articles 13, 14, and 24. The demonstration of unconstitutionality per se is not enough, however. The plaintiffs also had to prove that Japanese social norms had changed to such an extent that the unconstitutionality of denying gay and lesbian couples the right to marry had been clear for a long time. Put somewhat differently and in the context of the social, political, and legal processes underpinning Obergefell, they had to convince the Supreme Court that holding that the Diet has a constitutional duty to recognize same-sex marriage was no more radical than requiring Japanese law to fit Japanese public morality.

As those who argue that foreign influence plays a large role in Japanese domestic legal reform would predict, this section of the Complaint begins with reference to international agreements, first the International Covenant on Civil and Political Rights and then the International Covenant on Economic, Social and Cultural Rights, and notes that both organizations have specifically admonished Japan to be more protective of LGBT rights. It then lists 25 countries that recognized same-sex marriage between 2001 and 2019, and pointedly notes that the United States and Taiwan are examples of jurisdictions where the judiciary ‘had determined that the constitution requires the legislature to take measures to recognize marriage between same sex persons’.Footnote ⁸²

The attention to international opinion notwithstanding, the Complaint devoted more space to detailing domestic Japanese events recognizing the legitimacy of same-sex relationships. While noting the paucity of cases dealing with same-sex rights, it stressed the ringing language of the OCCUR opinion and cited the growing number of cases demanding, for example, survivor's benefits for a partner's accidental death and the right to attend a partner's funeral, as demonstrating a growing awareness of LGB rights. The Complaint argued that the historical lack of cases should not be seen as an excuse for the Diet's failure to act but rather as an expression of the difficulty in seeking redress for discrimination and thus providing impetus for immediate action. The Complaint continued by listing the efforts of the national and local governments to protect LGB rights since 2000, including reference to the human rights of sexual minorities in various national proclamations, the granting of visas to same-sex partners of Japanese nationals, and the growing list of localities that have taken measures such as prohibiting housing discrimination or establishing registries for same-sex partnerships. Also mentioned were various actions by the private sector including by the 経団連 (Keidanren) [Japanese Business Federation] and the American Chamber of Commerce, and the results of several public opinion surveys showing close to 80 per cent approval of same-sex marriage among those under 60.Footnote ⁸³