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Lawsuit as Lobbying: Understanding Same Sex Marriage and Other Constitutional Litigation in Japan
Published online by Cambridge University Press: 14 March 2025
Abstract
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This article uses same-sex marriage litigation currently before the courts in Japan as a vehicle for showing how a particular form of lawsuit—the claim for damages against the state for tortious legislative inaction—has become one of the leading tools for constitutional litigation in Japan.
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- Copyright © The Authors 2024
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Notes
1 See, for example: Law, David S., The Anatomy of a Conservative Court: Judicial Review in Japan (October 10, 2012). Public Law in East Asia (Albert H.Y. Chen & Tom Ginsburg eds., Ashgate 2013), Texas Law Review, Vol. 87, p. 1545, 2009, Washington U. School of Law Working Paper No. 09-06-02, Available at SSRN: https://ssrn.com/abstract=1406169. Note that while it is common to focus on the small but growing number of instances of rulings where the Supreme Court has found a provision in a Japanese statute to violate the constitution, there is a similar number of rulings where the court finds a particular application of a statute or other government act to be unconstitutional.
2 See, e.g. Feldman, David, “Public Interest Litigation and Constitutional Theory in Comparative Perspective.” The Modern Law Review, vol. 55, no. 1, 1992, pp. 44-72. JSTOR, http://www.jstor.org/stable/1096844. Accessed 21 Nov. 2023. Note Feldman does not use the word “lobby” anywhere in this article.
3 For example: Japan court finds same-sex marriage ban unconstitutional, BBC News, March 17, 2021, at: https://www.bbc.com/news/world-asia-56425002; Japan: Osaka court rules ban on same-sex marriage constitutional, BBC News, June 20, 2022, at: https://www.bbc.com/news/world-asia-61670667; Japan court: Non-recognition of same-sex marriage is ‘state of unconstitutionality,‘ NHK World, June 8, 2023, at: https://www3.nhk.or.jp/nhkworld/en/news/backstories/2512/. The judgments are available on the courts.go.jp website as follows: Sapporo District Court judgment of March 17, 2021 (https://www.courts.go.jp/app/hanrei_jp/detail4?id=90200), Osaka District Court judgment of June 20, 2022 (https://www.courts.go.jp/app/hanrei_jp/detail4?id=91334), Tokyo District Court judgment of November 30, 2022 (https://www.courts.go.jp/app/hanrei_jp/detail4?id=91778), Nagoya District Court judgment of May 30, 2023 (https://www.courts.go.jp/app/hanrei_jp/detail4?id=92316), Fukuoka District Court judgment of June 8, 2023 (https://www.courts.go.jp/app/hanrei_jp/detail4?id=92164).
4 Explanations of programmatic provisions generally also refer to the Public Assistance Act of 1950, article 1 of which clearly declares its purpose to be the implementation of article 25. However, despite widespread acceptance of the notion of programmatic provisions, other examples such as this where a statute clearly identifies itself as fulfilling a specific constitutional mandate are rare.
5 In English, Japan's constitution appears to establish universal human rights enjoyed by “the people.' However, in Japanese, these are rights of kokumin or, Japanese people. Some provisions describe rights using terms such as ”any person,“ but they appear in a document which, including the title of Chapter III, articles 11, 12, and 97 refer to all rights granted in the constitution as being those of the Japanese people. Article 17 does say ”any person“ can bring a claim against the Japanese state, but article 6 of the State Redress Act only grants foreign nationals a conditional right to do so, suggesting the safe assumption is that it is a statutory right rather than a constitutional one for foreign nationals.
6 Supreme Court, 1st Petty Bench Judgment of November 11, 1985. An English translation of the judgment is available at: https://www.courts.go.jp/app/hanrei_en/detail?id=80. Note that although the “official” translation of the 国家賠償法 available at Japanese government's Law in Translation website calls the law the “State Redress Act” translation of Supreme Court judgments render the title as “Law Concerning State Liability for Compensation,” but both refer to the same statute.
7 Characteristically, the apology from the Supreme Court came fifteen years later than the other two branches of government. The Court had used its administrative powers over the court system to require routine trials involving Hansen's Disease sufferers to be conducted in special isolated courtrooms, a seemingly blatant violation of constitutional norms.
8 Supreme Court, Grand Bench judgment of September 14, 2005. English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1264.
9 Both of the cases in which the Supreme Court found malapportionment so egregious as to be unconstitutional, the claims were based not damages for tortious legislative inaction, but that the elections were invalid. This is not an uncommon remedy for electoral claims, but to declare an election constituting the Diet invalid several years later would have potentially both invalidated everything the Diet did during the intervening period and left the country without a validly-constituted Diet to remedy the problem. Supreme Court, Grand Bench judgment of April 14, 1976, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=48; Supreme Court, Grand Bench judgment of July 17, 1985, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=79.
10 Supreme Court, 3rd Petty Bench judgment of December 5, 1995, available at: https://www.courts.go.jp/app/hanrei_jp/detail2?id=76107 (not translated).
11 Supreme Court, Grand Bench judgment of December 16, 2015, 69 Minshū 2427, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1418.
12 Supreme Court, Grand Bench judgment of December 16, 2015, 69 Minshū, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1435.
13 Supreme Court. Grand Bench decision of June 23, 2021, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1824.
14 Supreme Court, 3rd Petty Bench judgment of March 22, 2022, judgment available (Japanese only) at: https://www.courts.go.jp/app/hanrei_jp/detail2?id=91054. This case is interesting in that unlike in the 2015 judgment, the Court obliquely acknowledges the odd positive discrimination enjoyed by those Japanese who marry foreign nationals, since the samesurname requirement does not apply in such unions.
15 Most legislation actually passed by the Diet is proposed by the Cabinet.
16 Supreme Court, 2nd Petty Bench judgment of September 28, 2007 (Student disability pensions), English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=913; Supreme Court, Grand Bench judgment of Mary 25, 2022 (overseas voting in judicial retention elections), English translation available at https://www.courts.go.jp/app/hanrei_en/detail?id=1890.
17 Japan high court rejects appeal for damages over forced sterilization, Kyodo News, June 1, 2023, available at: https://english.kyodonews.net/news/2023/06/dcda565d0620-japan-high-court-rejects-appeal-for-damages-over-forced-sterilization.html. The claims were rejected on the grounds of the passage of the statute of limitations.
18 Tokyo District Court judgment of January 25, 2023, available (in Japanese only) at: https://www.courts.go.jp/app/files/hanrei_jp/809/091809_hanrei.pdf. Citing a body of domestic legislation and international treaties had joined, the court rejected the premise that the Diet had been inactive. No tort, no damages.
19 The Supreme Court is free to reject appeals from High Courts without dwelling on the merits through a short ruling that simply states the claim does not merit consideration. In many of the judgments where it does make a substantive statement about the issue at bar, it does so after first noting that the claim does not merit consideration, but that it is going to consider it anyways.
20 I published a review of one of them, see; Colin P.A. Jones, Kaoru Inoue, Shihô no shaberisugi [Blabbermouth Judiciary]: Moral Relief, Legal Reasoning and Judicial Activism in Japan, Emory Int'l L. Rev. Vol. 19, P. 1563, 2005. See also, Colin P.A. Jones, Judiciary's ‘snake legs’ exposed, Japan Times, Apr. 29, 2008, available at: https://www.japantimes.co.jp/community/2008/04/29/issues/judiciarys-snake-legs-exposed/.
21 This is not to say that Japanese judges have no powers whatsoever; there is a specific statute (the Maintenance of Order in Courtrooms Act of 1952) which empowers judges to impose summary punishments on parties who disrupt or frustrate court proceedings.
22 Supreme Court, Grand Bench judgment of April 4, 1973, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=38. The law remained on the books, but prosecutors refrained from bringing charges under it until it was excised when the Penal Code was overhauled in 1995. More recently, Supreme Court rulings that a statute is unconstitutional have generally resulted in prompt legislative action.
23 Note that “losing” typically means being ordered by the court to pay “litigation costs.” However, these are mostly filing fees which are calculated based on the amount claimed and are thus not significant. To the extent most parties engaged in impactful constitutional litigation can be assumed to have the assistance of lawyers working for free or highly-reduced fees, the filing fees are likely immaterial.
24 Nagoya High Court judgment of April 17, 2008, 2056 Hanji 74, judgment available in Japanese at: https://www.courts.go.jp/app/hanrei_jp/detail4?id=36331.
25 By the time the Nagoya High Court judgment in the preceding case had been issued, the presiding judge of the panel had reportedly already retired and taken up a new job as a law professor. There are a variety of books and articles on the subject of judicial careers, mostly in Japanese, but for a useful and recent overview of a number of viewpoints, including interviews with Professor Hitoshi Nishikawa, probably the leading authority on the subject, see journalist Ryūchi Kino's on-line article: Fushigi na saibannjinji: daikkai – kuni wo makashita saibankan ha sasen sareru [The strangeness of judge HR: Part 1 – judges who rule against the country are sidelined], Slow News website, August 7, 2022, available at: https://note.com/slownewsjp/n/n9796b40166ca.
26 Since its leadership is dominated by career prosecutors whose primary expertise and experience are in criminal matters, the Ministry of Justice depends to a degree on judges on secondment for expertise on civil law issues. In fact a judge on secondment is usually the head of the MOJ's Civil Affairs Bureau. This raises the interesting possibility that that despite having been rejected by the Diet, the amendments to the Civil Code proposed by the Ministry of Justice legislative council in 1996 represent an institutional view of the judiciary and the MOJ about laws that should have been passed long ago but weren't. This would explain the odd prominence of references to the 1996 proposal in cases such as both the Surname Case and the Remarriage Prohibition Case. It was also referenced in the 2013 Out-of Wedlock Inheritance Discrimination Case, which found Civil Code provisions that discriminated against heirs born out of wedlock unconstitutional on equal protection grounds. A revision to this part of the Civil Code had also been part of the 1996 proposal. Supreme Court, Grand Bench decision of September 4, 2013, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1203. One of the judges in that case, Itsuda Terada, recused himself from the decision, reportedly on the grounds of having been on prolonged secondment to the MOJ's Civil Affairs Bureau including during the period when the 1996 proposal was formulated. While the recusal might suggest the MOJ-Judiciary relationship had no impact on the outcome, the court has several dozen research judges who assist the court with research and drafting, thus rendering the opinions of the court (but not individual dissents and concurrences) institutional outputs. Masako Kamiya, Chōsakan: Research Judges Toiling at the Stone Fortress, Washington University Law Review, Vol. 88, Issue 6, P.1601, 2011.
27 Supreme Court, 2nd Petty Bench judgment of January 23, 2019, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1634.
28 Supreme Court. 3rd Petty Bench judgment of November 30, 2021. By contrast, a 2021 judgment of the 3rd Petty Bench challenging another requirement of the same law—that persons seeking to change their children not have any minor children—was dismissed without any such commentary. A dissenting judge noted that the law had previously been amended in 2008, prior to which the requirement was that applicants have no children, even adults.
29 Supreme Court, Grand Bench decision of October 25, 2023, judgment (Japanese only) available at: https://www.courts.go.jp/app/hanrei_jp/detail2?id=88274.
30 See note 25 for citation.
31 Supreme Court, 1st Petty Bench judgment of September 26, 2013, English translation available at: https://www.courts.go.jp/app/hanrei_en/detail?id=1205.
32 That said, the same can be said of the Remarriage Prohibition Case which invalidated the statutory requirements for registering a subsequent marriage. However, as noted, framed as a damage claim, the substantive outcome was the petitioner's claim was rejected. Morever, as indicated in Note 25, it may have been a legislative change the Ministry of Justice already desired but had seen stymied by the Diet.
34 For ease of reference, the full text of article 24 is set forth below. (1) 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. (2) 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.
35 See, for example: Japan court finds same-sex marriage ban unconstitutional, BBC News, March 17, 2021, available at: https://www.bbc.com/news/world-asia-56425002.
36 For what it is worth, if I had to bet, I would expect the Supreme Court to find a violation of article 14(1), because that is where multiple other unconstitutional rulings have arisen.
37 See, for example: David S. Law, The Anatomy of a Conservative Court: Judicial Review in Japan (October 10, 2012). Public Law in East Asia (Albert H.Y. Chen & Tom Ginsburg eds., Ashgate 2013), Texas Law Review, Vol. 87, p. 1545, 2009, Washington U. School of Law Working Paper No. 09-06-02, Available at SSRN: https://ssrn.com/abstract=1406169.
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