A colleague recently asked me an interesting question, and with her permission I decided to turn the answer into a blog post. The question is: What is the situation regarding religious freedom and sexual freedom in Japan? The question was a natural one because I do a lot of work in Japan.

I will break the answer into three parts: 1. Religious Freedom; 2. Reproductive Rights; and 3. Same-sex marriage rights. The situation regarding the first and second parts is reasonably clear. The situation regarding the third part, both legally and culturally, however, is in an interesting state of flux.

1. Religious Freedom- Article 20 of the Japanese Constitution reads: “Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority. No person shall be compelled to take part in any religious act, celebration, rite or practice. The State and its organs shall refrain from religious education or any other religious activity.” Clauses 1 and 3 protect the free exercise of religion. There are also a variety of laws that can be relevant to religious freedom, including education laws and something called the Shuukyou Hojin Ho (Religious Juridical Persons Act). Here, I will focus primarily on Japanese constitutional law.

Many Western religious freedom scholars are familiar with a famous Japanese Supreme Court case called, Matsumoto v. Kobayashi (The Kobe Technical College Case), which involved a Jehovah’s Witness student at Kobe Technical College who could not engage in Kendo practice. The student was otherwise a model student and had high grades. He offered to do alternative work to meet the Kendo requirement, but to no avail. For example, he offered to analyze Kendo moves or write a paper on the history of Kendo. The school refused, and as a result he was not allowed to graduate (he met all the other requirements for graduation). Eventually he filed suit.

The case made it’s way to the Japanese Supreme Court. The Japanese Supreme Court has 15 Justices that can sit as a Grand Bench, or as Petty Benches made up of 5 Justices. A Petty Bench heard the case. The court held that unless Kobe Technical College had a very strong reason to deny the student an accommodation it must accommodate the student’s religious needs. Otherwise, religious freedom under Article 20 and under the education laws would be something of an empty promise. On the other hand, the school could require that the student do alternative work to meet the Kendo requirement. In this case the school’s main argument against providing an exemption was essentially that there should be no exceptions to the rule. The court held this was not a strong enough reason to deny accommodation. Moreover, the student had offered to do significant alternative work to meet the requirement. Therefore, the student won the case.

Two interesting notes on this case. First, in Japanese law review articles and academic discourse there is a strong debate over the meaning of this case. Some scholars assert the case is not really a constitutional case, but rather a statutory case decided under the education laws. Other scholars assert that the case has strong constitutional elements as well as important elements decided under the education laws. Many, if not most, Japanese constitutional law scholars side with the second group and view the case as an important constitutional decision that also involves the education laws.

Second, the case was decided after the United States Supreme Court decided Employment Division v. Smith (the peyote case), which held that there is no duty to provide an exemption to a generally applicable law under the Free Exercise Clause. The backlash against the Smith case gave rise to RFRA. The Japanese Supreme Court’s reasoning rejected the Smith reasoning (the Japanese Supreme Court had followed other U.S. religion clause cases). In fact, the Japanese Supreme Court’s point that a government entity can require anyone receiving a religious exemption to do alternative work to meet legal requirements suggests a weakness in Justice Scalia’s arguments on behalf of the Smith majority. He argued that requiring accommodation unless the government has a compelling interest to deny the accommodation will create a slippery slope and make every person a law unto themselves. Yet, the slippery slope is exceedingly unlikely if those seeking accommodation must meet alternative requirements, an option the Smith majority failed to raise.

2. Reproductive Freedom- Today there is broad access to contraception and abortion in Japan, but the legal history on this issue—including somewhat recent legal history—is pretty disturbing. Abortion has been widely available in Japan since the 1950’s, but it is technically illegal under a 1949 law unless there is a birth defect or the life or health of the mother is at risk. The origins of the provisions in the penal code are disturbing. The birth defect element of the 1949 law was influenced by older laws that generally punished abortions, but which allowed them when the child born would have been disabled (yes eugenics was sadly an influence). Moreover, the woman’s health element of the law was originally viewed as a narrow exception to the general rule that punished the mother, but not the father, for having an abortion.

By the 1950’s, however, the exception to protect the health of the mother was broadly interpreted by the medical community and abortions became widely available. Today, there are still somewhat conflicting laws and rules on abortion, but as a practical matter so long as an abortion is performed by a doctor with the consent of the mother (and the father if available) it is allowed. The medical laws allow doctors, and women, wide discretion in determining whether an abortion is necessary, even though the penal code provision making abortion illegal unless there is risk of a birth defect or risk to the life or health of the mother is still on the books.

Interestingly, while there has never been a legal prohibition on condoms, until 1999 oral contraceptives were not allowed in Japan (the sexism and protectionism that underlay the restrictions prior to 1999 could be the subject of a multi-volume set). In fact, once oral contraceptives were approved abortion rates began to decline. Today, oral contraceptives are widely available for a variety of reasons, but surveys show that most Japanese still prefer condoms over oral contraceptives. There are a number of reasons for this including lower costs and fear of STD’s.

So, as a practical matter, reproductive rights are pretty broad in Japan even if as a legal matter things are a bit blurry. It is important to remember that Western cultural taboos are virtually non-existent in Japan so the forces driving even those who oppose reproductive freedom are not usually based in religion, but rather concern about declining birth rates. In fact, there is some concern that with negative population growth in Japan there will be an increased legal push to limit reproductive freedom. This has not manifested itself as a practical matter, but it is worth keeping an eye on.

3. Same-sex marriage- Same-sex marriage is not legal at the national level in Japan, but in July, 2016 the city of Naha in Okinawa Prefecture became the fifth city to recognize same-sex marriage as having equal rights to other marriages. This is important because in Japan marriage is a legal transaction performed at the local level and there is no requirement for any sort of marriage ceremony. Marriage ceremonies have no legal meaning in Japan. Anyone can have a marriage ceremony, and while most people do so after having the marriage legally recognized by the relevant city, many Buddhist Temples and wedding “chapels” have been performing same-sex ceremonies for years. Still, legal recognition by the relevant city is the key to obtaining the legal rights accorded other marriages.

Interestingly, the reasons same-sex marriage is not legal nationally in Japan are far different from in the West and the likelihood is good that legal recognition will continue at a quick pace now that it has begun. Moreover, the fact that wedding ceremonies (known as Kekkon-Shiki) are totally separate from the legal process of marriage, which simply requires the stamping and filing of the proper documents by the city, makes the recognition of same-sex marriage potentially easier. As long as the city recognizes same-sex marriage the legal rights accorded married couples exist, and regardless of whether the city recognizes the marriage the couple can have whatever sort of ceremony they want just like any other couple.

What are the reasons same-sex marriage is not yet legal at the national level in Japan? The religious backlash against same-sex marriage in the U.S. is virtually non-existent in Japan. One reason that same-sex marriage is not legal at the national level is that the movement toward legal recognition of same-sex marriage has been slower in Japan. Now that the movement is gaining strength cities have begun recognizing same -sex marriage. To the extent there is cultural resistance in Japan two forces may be at work, neither of which is based in religion. The first reason may have a lot more to do with xenophobia than homophobia. Japan is experiencing negative population grown at an alarming rate. Some people think same-sex marriage is likely to lead to increased adoptions and the most likely source of adopted children is other countries in Asia. Some Japanese still have a sense of Japanese nationalism and these people frown upon foreigners. Thankfully, these people represent an increasingly smaller percentage of the population, but they are still a large enough group to have an impact on these issues. To be clear the evidence supporting this is primarily anectdotal so further studies would be helpful. Second, there is a sense of tradition and culture (bunka) in Japan, and social change on family issues tends to move slowly even when there is no strong opposition to change. Some people may simply view marriage in a certain way, and even if they have no religious objections to same-sex marriage, they may view it as challenging their cultural norms. Whatever the cause of resistance to same-sex marriage legal recognition by local governments is likely to increase in the coming years.





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