Japan is the only country in the industrialized world that forbids married couples from having different surnames.1 Though most Japanese people oppose the system, the Supreme Court of Japan (SCJ) recently upheld the laws that make married couples share a surname.2 The SCJ’s reasoning typified weak judicial review, consisting of deference to the legislature and failure to balance constitutionally protected interests against the public welfare, both of which implicate concerns about the legitimacy of the Japanese Constitution. Its reasoning also showed how weak judicial review can lead the SCJ to overlook constitutional rights, like freedom of expression.
In 2018, three couples asked on their marriage registration forms that the husband and wife have different surnames.3 The Mayor of Kokubunji denied the requests because of Civil Code Article 7504 (CC-750), which says that “[a] husband and wife shall adopt the surname of the husband or wife . . . at the time of marriage,”5 and Family Register Act Article 746 (FRA-74), which says that couples need to put “the surname that the husband and wife will take” on their applications.7 The couples appealed, arguing that the laws violated the Japanese Constitution’s equal protection and marriage provisions.8
The Tōkyō High Court upheld the Mayor’s dismissal.9 In a twelve-to-three decision, the Supreme Court affirmed, holding that CC-750 and FRA-74 were constitutional.10 The majority relied on a case from 2015 (the “2015 case”), where the SCJ, on similar facts, held that surnames are part of the legal system, so harms stemming from changing surnames affect personal interests, not constitutional rights.11 Although the Constitution requires the Japanese Legislature, the Diet, to account for personal interests, CC-750 was constitutional and reasonable.12 The 2021 majority agreed and held that, under the 2015 case’s reasoning, FRA-74 was “obvious[ly]” constitutional as well.13 The majority acknowledged a shift in some important social factors, like a higher percentage of women in the workforce and lower percentage of people who agreed with the system, but held that the 2015 case still controlled.14 Last, the majority argued that since the same-surname system was constitutional, it was up to the Diet to decide what kind of system to use.15
Justices Miyama, Okamura, and Nagamine wrote a concurring opinion.16 They argued that the system is an indirect constraint on marriage because it does not limit the act of marriage itself, but rather is one effect of marriage that does not hinder the free and equal decisionmaking of the couples.17 Next, the Justices looked at whether the system was unreasonable “in light of . . . individual dignity and the essential equality of the sexes” and therefore unconstitutional.18 The Justices thought changed circumstances could make the system unconstitutional19 but argued that none of the changes since 2015 — like increased female employment, less popular support, or the disapproval of the Committee formed by the Convention on the Elimination of All Forms of Discrimination Against Women20 (CEDAW) — made it unconstitutional.21 The Justices acknowledged that forcing someone to change their surname can harm personal interests through, for example, feelings of identity loss, and that, to avoid this harm, some people have chosen not to marry; however, they asserted that addressing these consequences was the Diet’s job.22
Justice Miura concurred only in the judgment, arguing that the same-surname system was unconstitutional but still agreeing that the SCJ should uphold the dismissal of the applications.23 He noted that since the reasonableness of a restriction involving constitutional rights was in question, the SCJ needed to examine the constitutionality of the laws “according to the nature of the relevant right[s].”24 He argued that surnames and given names had value as symbols of one’s individuality even if surnames traditionally showed relationship status.25 He noted that the law makes one spouse give up those personal interests, directly constraining the marriage.26 He thought that not allowing exceptions was unconstitutional because of how today’s family structures differ from traditional family structures.27 Justice Miura also said that two factors lessened the system’s rationality: first, the law affects only some families, which weakens the “public announcement” rationale; and second, more people are informally using maiden names after marriage, which weakens the “family unity” rationale.28 Then he argued that even though the statutes’ texts were gender-neutral, that did not mean the system’s effects were also gender-neutral.29 He voted to uphold the system, however, as he contended that the SCJ could not strike it down without the Diet first making changes to the broader legislative framework; to do otherwise would cause “confusion in society.”30
Justices Miyazaki and Uga dissented.31 They agreed with Justice Miura that the same-surname system is unreasonable and unconstitutional but argued that the SCJ should have ordered the applications’ acceptance because the Mayor did not have discretion to deny them.32 The Justices asserted that marriage is a natural human activity and not simply a state service.33 They also noted that, in modern society, the full name carries import and identifies the individual.34 Some requirements, like notifying the government of a marriage, were reasonable because they were necessary to provide services, but the Justices argued that the same-surname system went too far.35 They stressed the different outcomes for men and women, noting it is almost always women who change their surnames,36 and cited societal changes like the increasing popularity of maiden names as evidence of the system’s irrationality.37 They also argued that marriage is private, so any “public announcement” justification could not be sustained,38 and that the CEDAW committee’s recommendations against the system signaled the same-surname system was unconstitutional.39
Justice Kusano also dissented, arguing that the system went against a constitutionally required welfare analysis.40 He argued that Article 13 of the Constitution requires grounding laws in individual dignity, and if it is obvious the Diet is “ignor[ing] individual dignity” in its weighing of values, the SCJ should step in.41 He asserted that allowing exceptions would not harm people who want to change their names, but that not allowing exceptions harms people who do not, including by making people share their relationship statuses with employers.42 He also considered children’s and third parties’ welfare, concluding that the welfare gained from allowing exceptions far outweighed the welfare lost.43
The opinions in favor of upholding the system epitomized a weak form of judicial review that is deferential to the legislature and that does not weigh rights and interests, ignoring some altogether. In the abstract, this decision says little about the status of individual rights, but, in the Japanese context, there might be cause for concern. Scholars question whether Japan’s current Constitution, which enshrines individual rights and gives the SCJ judicial review,44 emerged democratically and is therefore legitimate.45 General Douglas MacArthur had U.S. officials draft a constitution for Japan in eight days after he rejected the Japanese government’s attempt at a draft.46 None of the writers were experts in constitutional law, and the first draft was in English.47 After its debate in the Diet and translation into Japanese, the Constitution became law in 1947, and it remains the oldest unamended constitution in the world.48 Worries about the Constitution’s legitimacy could make the SCJ reluctant to scrutinize the legislature’s decisions with a strong form of judicial review.49
As of 2021, the SCJ has used judicial review to strike down laws only ten times.50 As a result, scholars have called the SCJ “the most conservative constitutional court in the world”51 and decried it as “so subdued as to deprive judicial review of all its significance.”52
The reasons for this wariness are still unclear.53 But, as Professor Nobuhisa Ishizuka explains, the result of this wariness is crystal: the constitutional text has not changed, but the Diet passes laws in line with traditional values and not the Constitution, “adapting the democratic principles of the constitution to the conservative social and political conventions of the country.”54 And today’s effective one-party rule in Japan might facilitate this adaptation.55
This is the milieu in which the SCJ decided this case, plainly deferred to the legislature, did not balance the rights at stake, and as a result, overlooked the free expression implications of its logic. The majority opinion, concurring opinion, and 2015 case showed their deference by suggesting that “[h]ow this type of system should be designed is a matter that needs to be discussed and determined by the Diet.”56 That the SCJ deferred in one more case does not evince weak judicial review. This case is an example of weak judicial review, however, because none of the opinions that deferred to the legislature compared the public interest to private, personal interests. They minimized the private interests, pointing to the use of premarriage surnames postmarriage as a way of alleviating social disadvantages, but never balanced the significance of any interests against each other.57
Article 13 of the Japanese Constitution says “[a]ll 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,” which implies a balancing test with individual rights on one side and the public interest on the other.58 But the majority opinion, concurring opinion, and 2015 case did not weigh interests. Instead, they just said that the personal interests were not enough. The 2015 case majority gave three public welfare interests in forcing couples to share a surname: showing the legitimacy of children, providing ease for the child in sharing a surname with both parents, and having feelings of unity for all family members with that surname.59 These public interests, the 2021 concurring opinion explained, conflict with the personal interests of avoiding feeling a “loss of identity and . . . disadvantages in social life” that come with changing one’s official surname.60 However, instead of weighing the interests as Justice Kusano did in dissent61 and despite acknowledging societal changes since the 2015 case, the 2021 majority and concurring opinions deferred entirely to the legislature on the question of the proper surname system.62
So, rather than analyze the significance of competing interests to see if the system was unreasonable and therefore unconstitutional, the majority and concurring opinions acknowledged the interests and deferred to the Diet. Notably, Justice Miura’s opinion did weigh the interests but still deferred for broader societal reasons.63 For such an opinion to be possible calls into question whether the SCJ’s role as interpreter of the Constitution is about enforcing individual rights, and it reveals how reluctant Justices might be to strike down laws.
Last, the SCJ’s failure to weigh the free expression rights implicated by its reasoning shows how weak judicial review might lead the SCJ to overlook some rights altogether. Surnames involve more personal interests than any of the opinions acknowledged.64 And forced changes of a surname implicate political speech for both spouses.65 Previously, the SCJ said free expression is “a fundamental human right . . . that underpins democratic society,”66 but, in this case, the holding recycled problematic reasoning from the 2015 case.67 Not all couples want to “publicly indicate to others that they are members of one unit.”68 In fact, they might want to indicate something to the contrary. So, forcing couples to share a surname is both a privacy concern, as the dissents noted,69 and a concern of compelled political expression. Whether the public interests outweigh those concerns in this case is for the SCJ to decide. But that scholars have a difficult time pinning down the Court’s free expression doctrine70 evinces the SCJ’s failure to weigh interests in this case and others. This vagueness and the fact that the SCJ has yet to strike down a single law on free expression grounds is likely why scholars describe the free expression jurisprudence as “highly deferential to the government and . . . not underpinned by any serious analysis.”71
Weak judicial review does not necessarily mean individual rights are on the chopping block.72 But in modern Japan, if both the Japanese public and Supreme Court question the legitimacy of the Constitution and a single party dominates politics, leaving scant room for competing voices in constitutional adaptation, there might be a reason to worry.