@Jackie San

Japan doesn’t tend to do social change quickly — or in public.

It’s all the more unusual a recent confluence of events that has brought a discussion on the acceptance of the LGBTQ community to the fore. After an aide to Prime Minister Fumio Kishida made a homophobic comment in a meeting with reporters, the prime minister has been pushing a bill aimed at preventing discrimination against the LGBTQ community — a legislative fig leaf ahead of the Group of Seven summit in May, where the host, Japan, will be the only member that doesn’t permit same-sex marriage.

Supporters hope the bill would then pave the way for a discussion on the recognition of such relationships, and later, marriage. Somewhat surprisingly for a conservative country, polling shows a rapid shift in public opinion in favor of same-sex partnerships. Just eight years ago, opinion was divided roughly 50/50; now, nearly two-thirds say they support marriage equality.

With the G7 set for Kishida’s home constituency of Hiroshima — an event that might be the unpopular leader’s crowning moment in office — the comments by his aide have been an opening for opposition lawmakers, who’ve put the prime minister in the hot seat.

It’s undeniable that there is much opposition to same-sex unions within the broad church of the ruling Liberal Democratic Party. It’s not even clear if the premier will be able to pass his legislation, as important as those potential protections would be to LGBTQ citizens. But the corner that Kishida’s been backed into might just provide him with an opportunity to do something bigger.

Some 65% of the Japanese population live in areas which have LGBTQ partnership systems, nonlegally binding recognition that enables couples to receive equal treatment in housing and healthcare. Pressured by the environmental, social and corporate governance investing movement large companies including Sony Group and Toyota Motor are also adjusting their benefit policies to match. But recognizing marriage itself remains distant, with a major sticking point: Article 24 of the U.S.-written Constitution, which states:

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.

Opinion is divided on whether reform of the Constitution is actually required to legalize same-sex unions. While the language might seem unambiguous, proponents argue that other parts of the text, such as the anti-discrimination clause in Article 14, provide more than enough justification. Others have different goals, argues Gon Matsunaka, the head of Pride House Tokyo, who calls the perceived need to change the Constitution a misunderstanding. “Some people try to make this issue constitutional, because they want to change the Constitution for a different reason, in the guise of marriage equality,” he says.

Indeed, opponents may also argue for the necessity of constitutional reform precisely in the hopes of holding it up — the document has never been amended since taking effect in 1947, and even the late Shinzo Abe couldn’t realize his dream of doing so. Abe’s position was that the Constitution doesn’t allow same-sex marriage, though it was not among the articles he sought to change. True to fashion, the Kishida government has avoided declaring a stance one way or the other.

In theory, reinterpreting the Constitution may be possible. After all, a straight reading of Article 9 would also seem to prohibit the country’s Self-Defense Forces, effectively the nation’s military, which exist nonetheless. There’s also the possibility that the courts rule in favor on one of the many challenges introduced by those opposed to the current laws. A Supreme Court decision that backed up the rulings some lower judiciaries have handed down — that a lack of recognition for gay marriage violates the current Constitution — might well be the fastest method.

But such a style of decision-making, in which unelected judges reinterpret an unchanged document rather than leaving it up to lawmakers and the people, is the wrong road to go down. It seems a stretch to suppose that something written by occupying U.S. forces intended to confer same-sex marriage rights at a time when every American state still had anti-sodomy laws. Cabinet reinterpretations of Article 9 have been of existential necessity, but the very existence of its armed forces is still opposed by major opposition parties, who hew to the pacifist intentions of the Constitution’s creators.

Instead, this is the perfect chance to square an eight-decade old circle and bring the debate into the open. Consider how one formerly conservative country went about things: Ireland became the first country in the world to legalize marriage equality through popular vote in 2015. That move was put into place by a constitutional convention, a cross-party assembly of politicians and citizens established by the government to consider how to tackle growing constitutional issues.

Kishida can’t just snap his fingers and declare a referendum. He could, however, advocate for the establishment of a similar body — and bring the debate further into the open. In formerly Catholic Church-run Ireland, the acceptance of same-sex relationships has become near-total, in large part thanks to the comprehensive community debate the referendum triggered.

Of course, the average age of the population skews much younger in Ireland than in Japan. All the more reason, then, to endorse a measure to might bring young people out to vote — with 90% of under-20s saying they support equality in one poll. It might also encourage participation in the legislative process and perhaps help arrest a declining turnout rate.

A majority of Lower House lawmakers favor change, though they can’t quite agree on what parts; even the Constitutional Democratic Party of Japan, which doesn’t back revision, favors “future-oriented constitutional discussion.” Ruling party members who don’t support marriage equality might be persuaded to back change in order to break the eight-decade taboo on altering the document: An LDP-backed slate of revising Article 24 and Article 9 to recognize the existence of the broadly popular Self-Defense Forces could be sold to a suspicious public.

As head of the LDP, Kishida has pledged to seek to constitutional reform and has also said more discussion on the subject of equality is needed. Even a failed attempt at constitutional reform would invigorate such talk. Changing the Constitution might be taboo in Japan. But like same-sex marriage, it need not be.







@Jackie San

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