By Stuart Gaffney and John Lewis–
There’s a well-known adage in Japan: “The wood post that sticks out from the ground will get pounded down.” Its meaning: Sticking out and standing up as different from the perceived norm is enormously challenging in Japan.
No one knows this better than the LGBTIQ Japanese. A few years ago, we were talking to a queer Japanese law professor friend about our experiences giving marriage equality talks and meeting with LGBTIQ activists in Japan. We told him how we as Americans marveled that Japan had no anti-LGBTIQ conservative Christian political movement. Our friend replied incisively, “Conformity and the need for harmony is a more powerful religion than conservative Christianity.”
His clarity pierced the air. We remembered his words earlier this month when the Japanese government announced that the forthcoming new Imperial era would be called “beautiful harmony,” whose Japanese characters could also imply “command” or “order.”
The last time we gave talks in Japan, we visited the Manshu-in temple in Kyoto. The temple features a stunning rock garden with a 400-year-old pine tree as it centerpiece. As we immersed ourselves in the garden, we saw on a wall of the temple the adage about the post that sticks out getting pounded down. But underneath it, we saw a striking rejoinder:
“The post that does not stick out will eventually rot in the ground.”
On Valentine’s Day this year, 13 same-sex couples across Japan decided to stick out, stand up and not let themselves “rot in the ground.” They filed historic coordinated lawsuits for nationwide marriage equality. They did so nearly 15 years to the day when over 4,000 LGBTIQ couples began flooding into San Francisco City Hall to marry after then-Mayor Gavin Newsom kicked opened the door for marriage equality here. Every time we have spoken to activists and audiences in Japan, we have told our story of how profound and life-changing participating in San Francisco’s Winter of Love was for us.
The Japanese lawsuit follows years of Japanese LGBTIQ people becoming increasingly vocal and visible in society in the face of significant social and familial pressures. The plaintiff couples represent a diverse cross-section of Japanese same-sex couples and provide lived examples of the need for equal protections and rights for LGBTIQ couples.
They also intend the lawsuit to help all LGBTIQ Japanese. Plaintiff Kenji Aiba told the Japan Times that the lawsuit “will let us share the hardships of sexual minorities with all people in Japan,” and his partner Ken Kozumi proclaimed they would “fight this war together with sexual minorities all around Japan,” the Associated Press reported.
Kozumi also stressed that “progress in Japan has been too slow.”
Japanese LGBTIQ activists have been using the facts that the world’s eyes will turn to Japan during the 2020 Tokyo Olympics and that Japan is the only member of the G7 without marriage equality or civil unions to pressure for faster change. Two years ago, grassroots activist Kanako Otsuji became the first openly LGBTIQ elected member of the Diet (Japanese Congress). The LGBTIQ community has made much progress in Japanese businesses. Eleven locales, including major cities such as Osaka, Sapporo and parts of Tokyo, issue same-sex partnership certificates of largely symbolic value.
Plaintiffs in their lawsuit rely on sweeping human rights guarantees in the Japanese Constitution, drafted in 1946 during American occupation and, in part, by a Western feminist who had lived in Japan. The Japanese Constitution declares: “All of the people are equal under the law and there shall be no discrimination … because of race, creed, sex, social status or family origin.” Further: “All of the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall … be the supreme consideration in legislation and in other governmental affairs.”
The pivotal issue in the lawsuit will be how these guarantees shape present-day interpretation of the Constitution’s marriage provisions, enacted in 1946 to give women equality, autonomy and dignity in marriage for the first time. In particular, one provision ensures: “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.”
When this women’s rights breakthrough was drafted in 1946, no one was thinking about same-sex marriage. Neither this provision nor any other provision of Japanese law explicitly bans same-sex marriage. But no government entity has ever issued marriage licenses to same-sex couples, and the government has maintained that the Constitution prohibits it. Interestingly, the 1946 Japanese Constitution contains words in another marriage provision that seem almost prophetic today: “With regard to choice of spouse … laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes.”
Support for marriage equality is growing in Japan with recent polling showing 70 percent of people in their 20s and 30s in favor. However, the road ahead for same-sex couples in the lawsuit is formidable. For example, Human Rights Watch reports that the Japanese Supreme Court has struck down only 10 laws as unconstitutional in over 70 years. It recently upheld an outdated and medically debunked law regarding transgender people.
We bow to the same-sex couples who are bringing this lawsuit and to all of the Japanese LGBTIQ people and their supporters who are taking the risk to be posts that stick out despite the fear of being pounded down.
John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.
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