Same-Sex Marriage Should Not Be Dictated by Wise Men in Black Robes

In its March 14 decision ordering the Diet to re-write the Civil Law and Family Register Law to recognize same-sex marriage, the Sapporo High Court concedes that in the not-too-distant past, no one questioned that marriage was exclusively between a man and a woman. The court even concedes that this way of thinking, at the time, may have made sense.

But the court now instructs us that this old way of thinking has become "irrational": "There are not a few Japanese citizens who have negative opinions and attitudes about same-sex marriage." It went on to add, "But these opinions and attitudes are nothing more than emotional reactions, and fail as a rational basis for treating same-sex and opposite-sex marriage differently."

Marriage's long history as a union between a man and woman to establish a family, the court tells us, is today nothing more than an unscientific superstition, like believing the earth is flat, that any rational person must now reject. 

The Sapporo Court's Rationale

The court cites several provisions of the Japanese constitution in support of its decision ー Article 13 (respect for the individual, right to pursue happiness), Article 24(1) (marriage based on consent of both parties), Article 24(2) (respect for the individual, equality between the sexes), Article 14 (equal protection). But in each case, the court's reasoning is the same. Not recognizing same-sex marriage is simply "irrational." Variations of the word "rational" are sprinkled throughout the court's decision.

The Sapporo High Court seems to not recognize that our moral instincts are not based on pure logic but on factors that are much more ancient and complex. This is especially so for values at the core of everyday life ー family, the roles and relations of men and women, parents and children. 

A few examples show the limits of abstract reason in grappling with our most basic moral questions.

The Limits of Abstract Logic

When the Titanic was sinking in 1912, no one questioned that children and women should be saved before the men. But was that ranking "rational"? Why not the youngest first, or the strongest and most intelligent, or randomly by casting lots? Pure reason cannot provide the answer. The crew and passengers on the Titanic acted on moral instincts developed over centuries that went beyond simple logic.

Or take the question of abortion that has vexed American courts for the past half-century. The US Supreme Court, applying legal reasoning in the same way as the Sapporo High Court, concluded that it was irrational for anyone to think of an operation to remove a fetus (at least in the early stages of pregnancy) as any different from, say, an appendectomy. Yet the reality is that most women who undergo abortions experience instinctive feelings of remorse and guilt that are entirely absent after an appendectomy. 

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Are those feelings "rational"? Perhaps not, any more than our instinctive fear of snakes and thunder. But most of us would judge a woman who felt nothing after an abortion as remarkably insensitive. In the same way, we should be wary of courts that elevate "reason" to dismiss as "irrational" fundamental moral instincts with deep roots in biology and history.

Should women be prohibited from fighting shoulder-to-shoulder with men on the front lines in armed combat? Or, should they be given the option if they so desire? Should they be required to fight on equal terms with men? Is any answer more "rational" than another? Yet again, these are complex questions that cannot be solved by pure logic. These are not the kind of questions that can ー or should ー be answered by wise men wearing black robes.

Are Taboos Against Incest and Polygamy Also 'Irrational'?

It is the Sapporo High Court's view that it is objectively irrational not to allow two consenting individuals, regardless of gender, to marry. "The freedom to choose whom to marry and when must be accorded due respect."

But if it is "irrational" to limit "who" one may marry, why stop at same-sex marriage? What about a marriage between a brother and sister? Why stop at two? 

As between consenting adults, is the legal prohibition of incest or polygamy any more rational than the prohibition of same-sex marriage? Many proponents of same-sex marriage protest that taboos against incest and polygamy can clearly be distinguished and defended. But why? There are ancient taboos against sodomy, incest and polygamy and all have the same roots and are all in some sense equally "irrational."

The 'Love is Love' Argument

The political campaigns for same-sex marriage in America and Europe portrayed homosexuals as normal people who had the same desire for stable family relationships and children as heterosexuals. We were told they have the same paternal and maternal instincts as everyone else, it just so happened they preferred their own sex. "Love is love" was the slogan. Cruelty could be the only possible motive for denying these people the benefits of marriage.

No doubt there are same-sex couples who lead traditional family lives, are faithful to their spouses and are good parents. But homosexuals who are interested in leading a quiet domestic life with one partner are probably the exception. 

The same-sex marriage of the recently resigned Prime Minister of Ireland, Leo Varadkar, is likely more typical. Despite being married, Varadkar was caught in a gay nightclub engaged in sex play with other men. This does not seem to have bothered his partner, who irreverently posted on Instagram during King Charles' coronation that the royal scepter and rod could be used for fun "on a good night out."

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Must Japan Import Gender Ideology to Keep Up with the West?

In its decision, the Sapporo High Court cites at length the laws and court decisions of America and Europe that have in recent years legalized same-sex marriage. The implication is that Japan is backward and out of date, and should join the rest of the civilized world in embracing same-sex marriage. Before doing so, Japan should look at the larger consequences of the gender ideology that has taken hold in America and Europe following the adoption of same-sex marriage and ask whether the same gender ideology would be good for Japan.

It is no accident that in America and Europe the initial demand that homosexuals be given the right to marry soon expanded. Now it includes more aggressive demands based on the same underlying concept that gender lacks an objective biological basis and is a fluid spectrum of "identities" that individuals are free to choose. 

What used to be considered perversions such as cross-dressing and bondage must now be accepted and indeed celebrated in gay pride parades. Gender-specific public toilets and children's toys are now treated as a form of discrimination. 

Men who have assumed female identities must be allowed to compete with women in athletics. These are simply logical extensions of the idea, approvingly accepted by the Sapporo High Court, that gender is merely an arbitrary "identity" without a biological foundation.

Let the People Decide

It is doubtful that the great majority of Japanese citizens would be happy living in a country in which basic gender differences are treated as basically arbitrary and illegitimate. The Sapporo High Court's decision, however, is telling the people of Japan that their instinctive resistance to the idea that men can marry other men, or women other women, is not rationally defensible. 

In fact objections to same-sex marriage, the court concludes, are so irrational that the decision is outside "the discretion of the legislature." Instead, it must be removed from the democratic process altogether.

The Sapporo High Court's decision is anti-democratic and intellectually arrogant. 

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(This article was first published in Japanese on April 11 by The Sankei Shimbun. 日本語で読む.)

Author: Stephen Givens
Raised and educated in Tokyo and a graduate of Harvard Law School, Stephen Givens is a principal of the law firm JLX Partners and a member of the New York Bar. His practice focuses on corporate law and governance and related legal matters for Japanese and foreign clients. 

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