from the day they were enacted. In order to avoid strong political reactions from
conservative political forces, the court emphasized the change in circumstances as
a reason to declare these statutes unconstitutional. For instance, in theIllegitimate
Children Nationality Discriminationcase, the court held expressly that the provi-
sion at issue was constitutional at the time of enactment, but that the passage of
time had made it unconstitutional:^55
Since then, along with the changes in social and economic circum-
stances in Japan, the views regarding family lifestyles, including the
desirable way of living together for a husband and wife, as well as those
regarding parent–child relationships, have also varied, and today, the
realities of family life and parent–child relationships have changed and
become diverse, as evident in that the percentage of children born out
of wedlock in the total number of newborn children has been increas-
ing. In combination with these changes in socially accepted views and
social circumstances, Japan has recently become more international
and international exchange has been enhanced; consequently, the
number of children born to Japanese fathers and non-Japanese
mothers has been increasing. In the case of children whose parents
are Japanese citizens and foreign citizens, the realities of their family
lifestyles (e.g. whether or not each child lives with a Japanese parent)
as well as the views regarding a legal marriage and the ideal form of
parent–child relationship based therein are more complicated and
diverse than in the case of children whose parents are both Japanese
citizens, and in the former case, it is impossible to measure the degree
of closeness of the ties between the children and Japan just by exam-
ining whether or not their parents are legally married.^56
The court was thus still very cautious even when its decisions were not likely to
elicit strong reactions from conservative politicians. This is very interesting when
compared to the attitude of the Supreme Court of the United States because the
strategy of emphasizing the change of circumstances was precisely the one used
when the Warren Court declared racial segregation unconstitutional for the first
time inBrownv.Board of Education.^57 In Brown’s first case, Chief Justice Earl
Warren emphasized that changing historical circumstances justified a departure
from the long practices of the South.^58 The compromise by the court was both
necessary and yet inadequate to gain the support of the south. The Supreme Court
of Japan adopted the same strategy to mitigate the reaction from conservative forces
and it seemed to be successful in Japan.
(^5562) Minshu 1367 at 1372 – 3. (^56) Ibid.at 1373 – 4.
(^57) Brownv.Board of Education, 347 U.S. 483 ( 1954 ).
(^58) See Morton J. Horwitz,The Warren Court and the Pursuit of Justice: A Critical Issue
(New York: Hill and Wang, 1998 ), pp. 26 – 9.