1 The Constitution and the Family in Japan Shigenori Matsui University of British Columbia

2 Introduction The Family Law used to be a part of Civil Law, separated from the Constitution. Yet, in the United States, the United States Supreme Court has constitutionalized the Family Law since 1970s.

3 In Japan, the constitutionalization of the Family Law occurred in 1946, when the Family Law enacted under the Meiji Constitution was radically amended to conform to the Japanese Constitution. Many people believed that the constitutionalization is over and the Family Law could exist outside of the Constitution.

4 Yet, there are some constitutional challenges. Moreover, with the development of equality right jurisprudence and the development of right of autonomy, some of the provisions of the Family Law may be constitutionally questioned.

5 1 The Family Law and the Constitution A) The Family Law under the Meiji Constitution Civil Code of 1890 Civil Code of 1898 The “ie” (house) system

6 B The Family Law under the Japanese Constitution Article 14 “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”

7 Article 24 “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.”

8 The enactment of new Family Law in 1947 Individual dignity equality

9 Even though the people’s attitude did not change soon, still many of the people believed that all questionable provisions were removed and there no longer existed any necessity of further constitutionalization.

10 2 Some of the Constitutional Challenges A) Special Ban on Re-marriage against woman “A woman may not remarry unless six months have passed since the day of dissolution or rescission of her previous marriage (article 733, section 1).

11 Conflicting presumption of paternity “A child conceived by a wife during marriage shall be presumed to be a child of her husband” (article 772 (1)). “A child born after 200 days from the formation of marriage or within 300 days of the day of the dissolution or rescission of marriage shall be presumed to have been conceived during marriage” (article 772 (2)).

12 Judgment of December 5, 1995, Supreme Court, 3rd petty bench, 1563 Hanreijihou 81.

13 B) Discrimination against illegitimate child Article 900 If there are two or more heirs of the same rank, their shares in inheritance shall be determined by the following items: i if a child and a spouse are heirs, the child’s share in inheritance and the spouse's share in inheritance shall be one half each… iv if there are two or more children…the share in the inheritance of each shall be divided equally; provided that the share in inheritance of an child out of wedlock shall be one half of the share in inheritance of a child in wedlock…

14 Decision of July 5, 1995, Supreme Court, grand bench, 49 Minshu 1789.

15 3 Emerging Equality Right Jurisprudence and the Right of Autonomy A) Emerging Equality Right Jurisprudence Treating “race, creed, sex, social status or family origin” listed in article 14 as a suspect classification and applying heightened scrutiny

16 Application of strict scrutiny to sexual discrimination Application of strict scrutiny to discrimination based on social status

17 B) Constitutional Protection of the Right to Autonomy Article 13 “All 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.”

18 Re-reading article 24 as a textual source of substantive right to autonomy in family matters and sexual matters Application of strict scrutiny?

19 C) Restriction on Remarriage for Woman Reconsidered

20 D) Discrimination against Illegitimate Child Reconsidered

21 4. Future Agenda A) The Right to Marry (1) Discrimination regarding the Minimum Age for Marriage “ A man who has attained 18 years of age, and a woman who has attained 16 years of age may enter into marriage” (article 731).

22 (2)The ban on marriage in close relationship

23 (3) The ban on bigamy

24 (4) The requirement of same surname “A husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage” (article 750)

25 (5)Preclusion of same-sex marriage

26 B) Divorce A couple can divorce upon agreement. One must go to court for judicial divorce if the other partner does not agree. There must exist one of the listed grounds for judicial divorce.

27 The court may dismiss a suit for divorce if it finds continuing the marriage reasonable taking into account all circumstances, even in the case where there is a cause listed the statute. The Supreme Court has created the judicial doctrine to reject the divorce claim from responsible party.

28 C) Sexual activity (1) Rape (2)Prostitution (3)Sexual Intercourse with minors

29 (4)Contraception (5) Homosexual conduct and sodomy (6)Abortion

30 D) The right to have a child The pregnancy after the death of husband using frozen sperm. Judgment of September 4, 2006, Supreme Court, 2nd petty bench, 60 Minshu 2563.

31 Surrogate mother Decision of March 23, 2007, Supreme Court, 2nd petty bench, 61 Minshu 619

32 Conclusion It is necessary to re-examine the family law and law regarding the family in light of the Constitution.