Here’s this week’s Media Mix, about the recent Supreme Court decision on separate names and its potential effect on the legalization of same-sex marriages. In the column I pointed out that the majority of the judges on the court ruled that requiring married couples to have the same name did not violate the Constitution, but I did not say that the three female judges all held the minority opinion. I also didn’t mention that constitutional scholar Sota Kimura repeatedly mentioned in his commentaries on the case that he found the media’s focus on this aspect condescending toward those three judges. Reporters and other commentators repeatedly said that the three judges decided that the same name law was unconstitutional “because they were women.” While it’s true that the bessei (separate names) issue has mainly been framed as a women’s issue, reducing the three judges’ decision to a matter of gender loyalty shortchanges their capabilities as jurists and implies a personal agenda. This sort of prejudice is part of the reason why bessei has never been discussed for what it is, which is a right, not an obligation or an intrusion. Conservative elements that want to preserve the Civil Code mandate on same names for family units as defined by the koseki (family register) have always maintained the upper hand by making it seem as if the supporters of separate names would somehow make them mandatory, and the media has never challenged these conservative elements on this misunderstanding. The question should be framed, “Do you think married people should have the right to use separate names?”, but invariably surveys frame it as, “Do you think married couples should use separate names?”, which makes it sound like an obligation. The three female judges see the matter as a civil right, and making it seem as if they are pushing their own interests misrepresents their intentions.
Moreover, the argument that couples can still use separate names for professional purposes if they want to doesn’t hold water, because, legally, they still have to have the same name. Such couples would, by definition, be relegated to second-class status since, in exercising a personal choice that is not at all harmful to others, they are put at a legal disadvantage. By the same token, in the documentary mentioned in the article, “The Case Against 8,” when the two same-sex couples who are acting as proxy-paintiffs in the AFER suit against the State of California are asked about the state’s domestic partnership law, which essentially gives any cohabiting couples the same legal benefits as those of married couples, they reply that they find the domestic partnership arrangement demeaning, because they think of themselves as members of a society that deems marriage to be the certification of a loving partnership. Why should they be excluded from that certification as long as they pledge to adhere to its tenets? This is why conservatives in the movie eventually come around, because marriage is an inherently conservative institution. It’s also why many LGBT people and others have always rejected marriage, because they see it as the ultimate acceptance of social conventions, which, traditionally, have been paternalistic. Japanese conservatives who oppose separate names are, in essence, defeating their own purpose, because the people who bring lawsuits against the Civil Code statute want to get married. They want to belong. Isn’t that the whole point?