delivered at the
International Coalition for Religious Freedom Conference on
"Religious Freedom and the New Millenium"
Tokyo, Japan May 23-25, 1998
As is well known, the current Japanese constitution was drafted after World War II by the occupation forces, which consisted mainly of U.S. forces. Then it was submitted by the Japanese government to the parliament and the Directorate, subject to various forms of censorship imposed by the occupation forces. I do not mean to imply, however, that it is not a valid constitution. It is a legitimate constitution.
As a result of its genesis, the articles of the constitution related to freedom of religion reflect the American way of thinking. We can regard it as a typical example of the spiritual control by occupation forces of a nation in a state of lethargy after its defeat. Both the legal community and courts followed judicial precedents established in the United States. Now, on the basis of those historic facts, I would like to examine some legal and constitutional aspects of religious freedom in Japan.
As a person in the legal profession, I think my position is rather easy because what we have to define is something already well established. Those in the legal profession must make sure that we stay on course. Just recently, the ruling party of Japan tried to give a definition of religion. I think this is something that goes beyond what politicians are expected to do. They must be modest enough to stay within the boundaries where they are authorized to act. The same is true for those in the judicial community.
In Article 20 of the Japanese constitution, freedom of religion is guaranteed.
No religious organization shall receive any privileges from the state or exercise any political authority. No person shall be compelled to take part in any religious acts. The state and its organs shall refrain from religious education or any other religious activity.
And Article 89 says,
No public money or other property shall be expended or appropriated for the use, benefit, or maintenance of any religious institution or association or for any charitable, educational, or benevolent enterprises not under the control of public authority.
Freedom of religion originated from the Reformation in the early 16th century, as did freedom of conscience. It is one of the oldest, most original, and fundamental human rights. Freedom of religion applies both to individuals and organizations. For an individual, it refers internally to the freedom to have or not have religious faith of one’s own choice. Externally, it means to have freedom to conduct rituals or propagate ideas based on religious faith.
For an organization, it means the freedom to engage in religious activities, including, in a broad sense, political activities. Separation of church and state should be regarded as a means to secure freedom of religion. Yet, in Japan, due to the fact that the Japanese constitution was a gift from the U.S. occupation forces, the concept of separation of church and state was established as inseparably related to freedom of religion. Furthermore, there is still much confusion regarding the content of the provisions concerning separation of church and state.
To actualize freedom of religion, it is necessary to set aside the issue of separation of church and state for the time being and recognize the neutrality of the state toward religions, religious sects, and their philosophies of life. We should also qualify the differences and commonalities between tasks of the state and religious organizations. On one hand, we need to respect their mutual independence. On the other hand, we should examine the possibility of separating or supplementing one another while paying sufficient consideration to the issue of protecting minorities.
In the current social environment, with its differing forms of religious faith and philosophies of life, it is impossible to take any other attitude than that of neutrality, expressed as an attitude of generosity or tolerance. The constitutional mandate to take a neutral attitude toward religions and philosophies of life is at the same time nothing but the order to take a generous attitude toward them.
Now let me talk about the criteria of separation of church and state in court trials in this country. In Japan, there is a consensus of at least separation of church and state as a system to guarantee freedom of religion. There is however, some difference of opinion. Are freedom of religion and separation of church and state in the relationship of the purpose and the means, or are they inseparably united?
The view that separation of church and state is indispensable for freedom of religion, indeed a prerequisite for it, is not universally upheld. In Japan, there is confusion both in theory and in judicial precedents. For example, in a 1977 Supreme Court decision, the court idealized separation of church and state and said that “the Japanese constitution, in stipulating separation of church and state, made it an ideal to separate church and state completely.” The court simply stated the above. I am astonished by the boldness of the court to have made, without any ground, such an assertion, which had never been made even in the United States, the country that imposed the constitution on Japan.
According to judicial precedent in the United States, when a law is examined as to whether it establishes a state religion, the issues are: 1) whether the law has a secular purpose, 2) whether its main effect is to promote or deter religion, and 3) whether the law brings external entanglement between church and state. If a law fails any of these tests, it is regarded as a violation of the establishment clause of the U.S. Constitution. In the life of the people in America as a whole, however, there are religious practices. Even today in the United States, church and state are far from being separated completely.
In my view, in Japan, the criteria for judging in a case in which state and religion are entangled should be based on whether the law’s purpose has religious significance and whether its effect helps or promotes a particular religion or suppresses or intervenes in other religions. When it comes to the application of these criteria, some scholars and judges advocate that church and state should be rigidly separated, and some advocate that the separation should be relative or limited. Advocates of rigid separation assert on the basis of the presupposed non-religiousness of the state that church and state should be completely separated. And yet, strangely enough, they don’t insist on rigid separation in the case of using public money as a donation to a Shinto ceremony for purifying a building site or to a ceremony celebrating the completion of a monument to the loyal dead. They permit a wide range of exceptions.
In the case of other activities of the central and local governments, some propose the following conditions, with which I personally agree: 1) when a long religious tradition is simply recognized as a fact, 2) when application of rigid separation is likely to lead to denial of religion or religious freedom, and 3) when easing of separation between church and state does not assist a particular religion or suppress other religions.
According to the proposed conditions, it is permissible to use public money as a donation to religious events and practices. When this proposal is applied, it is regarded as constitutionally acceptable to do such activities as having prison chaplains or using Shinto ceremonies to purify a building site.
This proposal is appropriate, because it is actually impossible to separate church and state rigidly. The first Japanese lawsuit conducted over the issue of the constitutional separation of church and state concerned a Shinto ceremony purifying a building site. The judge, applying the theory of rigid separation to this case, decided that the involvement of the local government in the Shinto ceremony was unconstitutional. The Supreme Court, however, siding with limited separation, decided it was constitutional. Later the Supreme Court confirmed this position in a case concerning joint memorial services for members of the Self-Defense Forces who lost their lives on duty.
Does it seem that the theory of limited separation has become an established precedent in the Supreme Court? In the lower courts, many precedents have been established. On April 2, 1997, the Supreme Court decision on the lawsuit concerning the use of public money as a donation toward a Shinto ceremony adopted lax criteria of purpose and effect but then applied them rigidly and found the donation unconstitutional. The lawsuit referred to a case in which a prefecture governor used public money, in the amount of 5,000 yen, as a donation to a Shinto ceremony at a shrine. The ceremony was held for the purpose of comforting the spirits of the people who had died during wars and of comforting family members of the dead. The court decision agreed as follows:
The religious activities prohibited by Article 20-3 of the constitution refer to actions which have religious significance and which have the effect of assisting, promoting, or suppressing or intervening in religions.
As for the lawsuit concerning the use of public money for the donation to a Shinto ceremony the Supreme Court stated as follows:
The annual grand festival of Yasukuni Shrine has particularly important significance among other events held by the shrine. The public money from the local government as a donation to the ceremony is offered in front of the divine being on the occasion of this ceremony during the annual grand festival and as such has religious significance to the shrine.
This is very true. Generally speaking, it cannot be said that the offering of the donation as in the case of the purifying ceremony is nothing but a customary social policy. There is no precedent that a prefectural government has ever pledged public fealty as a nation to a similar ceremony conducted by other religious organizations. The court therefore stated that,
if a local government had a special relationship with a certain religious organization in such as a manner as mentioned above, it would give the impression that the local government supported a certain religious organization.
On this point, the defendant insisted that the public money offered to the Shinto ceremony was not unconstitutional, because the payment had been made as a part of the administrative assistance to family members of the soldiers who had died during wars, and that it was merely a social courtesy for a single purpose of comforting the war dead and their family members.
However, in light of the history after the enactment of the Articles of the Constitution separating church and state, we cannot say that such a practice is permitted by the Constitution even if a considerable number of people want it. In Japan, after the Meiji restoration in 1868, the state and Shinto became closely connected causing many kinds of problems and injustices. Taking those points into consideration and considering comprehensively the purpose of offering, the donation cannot help being regarded as having religious significance with the effect of assisting and promoting a particular religion. Thus the donation should be regarded as a religious action prohibited by the Constitution.
This argument has been questioned for the following reasons: 1) an activity of national government or local governments must be permitted if it is done for a secular purpose even if its religious significance cannot be denied; 2) the expenditure of a donation by a local government is within the range of a secular purpose of conducting a social courtesy, and such constitute a religious activity of a local government even if it has religious significance for the Shinto organization; 3) The local government attends a number of ceremonies conducted in Shinto, Buddhist, Christian styles on the occasion of festivals, marriages, etc. On those occasions, even if there is religious significance for those who conduct ceremonies; the priests, the ministers, pastors etc., that is not necessarily the case for the participants. To them the participation in offering donations are regarded as activities within the range of social courtesy. In this particular lawsuit, the defendant did not even attend the annual festival but simply made the donations. Therefore, the activity of the head of the local government did not mean a religious activity.
Well it is true. The Supreme Court has found constitutional the activities of a city government such as holding ceremonies for purifying building sites, offering donation to funeral ceremonies, etc. Yet, it found unconstitutional similar activities of the prefectural government. There is a striking lack of balance. Now the Supreme Court in addition says that Ehime prefectural government used its public money as a donation to Yasukuni Shrine only and that it has not offered donation to any other religious organizations.
As a matter of taxes, the defendant has used public money to offer a donation On such occasions as the National Memorial Service for the War Dead, memorial services are held in spring and autumn at Chidorigafuchi, and for the construction of the war memorial in Okinawa, etc. If the Supreme Court asserts that it is not permitted to use public money for the sake of Yasukuni shrine, a religious organization, then it would mean religious discrimination. That is equivalent to this. Such a conclusion lacks a good legal argument.
Now the conclusion: For a secular state in a multidimensional society where various religions exist, it is essential for the maintenance of peace in society to remain neutral toward religions and religious sects. That does not mean however that a state should be non-religious and/or anti-religious. For the sake of social stability, a state should recognize the value of religions and respond to religions favorably. The freedom of religion is guaranteed most effectively in a society where state and religious organizations do not intervene with one another, recognize mutual independence and cooperate with one another in the areas where they have tasks in common. Separation of church and state as long as it remains as a means must not be absolute. This is my conclusion and I thank you very much for your patience.