[LINK] "Japan's Married-Name Law Isn't Just About Names"

[rfmcdonald]

Bloomberg View's Noah Feldman writes about patriarchy in Japan.

Japan's Supreme Court has rejected an equality-based constitutional challenge to a law requiring couples to adopt either the husband’s or the wife’s last name. The decision is fascinating in its own right, reflecting the contemporary moment for feminism in Japan. It also raises a much broader question: How much should a constitution reflect the distinctive values of the society in which it operates, and how much should it express fundamental rights recognized almost universally?

The decision of Japan’s highest court exemplifies this question in a very concrete way. Japan’s Civil Code, enacted in 1896, during the Meiji era of Westernizing reforms, required that married women adopt their husbands’ last names. A 1947 revision created Article 750 of the code, which says the couple must adopt one family name, which can be that of the husband or the wife.

The provision had an intriguing history. Until 1870, commoners in Japan generally didn’t use last names. In 1876, the reformers initially decided that women should keep their own names upon marriage. The 1896 law reversed this rule, bringing Japan into closer conformity with Western practice of the time.

Today, 96 percent of couples choose the husband's name. This has led to challenges from Japanese feminists and pressure from the United Nations Committee on the Elimination of Discrimination Against Women, which considers the provision sexist.

The court’s decision relied in part on the formal equality of the provision, which it said was sufficient to satisfy the anti-discrimination provision of the constitution.