Church & State

Freedom of Religion/Division of Church and State (Article 20)

Supreme Court First Petty Bench Decision of January 30, 1996, 50-1 Minshu 199, 1555 Hanji 3. The Court affirmed the lower courts' determination granting the petition of the Governor of Tokyo to dissolve the religious organization Aum Shinrikyo based on the participation of its representatives in two incidents of attempted mass murder involving the poisonous gas sarin (the "Matsumoto Sarin Incident" and the "Tokyo Subway Sarin Incident"). Pursuant to Article 81 of the Religious Organization Law, a religious organization may be dissolved as a legal entity where a religious organization is found to have (1) acted illegally or clearly interfered with the public welfare or (2) acted in a manner which clearly deviates from the purpose of religious entities. The Court dismissed the defendant organization's allegations that the elimination of the religious entity would impair the religious freedom of its adherents by acknowledging a distinction between religious entities having legal status under the Religious Organization Law and unincorporated religious groups. The Religious Organization Law provides legal status to religious groups, allowing such organizations to transact business as an entity and, under Religious Organization Law Article 2, permits such entities to formulate regulations which govern the worldly activities of the entity and its adherents but prohibits regulation which interferes with a participant's freedom of belief. As a result, dissolution of an entity under the Religious Organization law should have no impact on the religious aspects of the former religious organization. Even if dissolution would result in some interference with the more worldly religious activities of the entity's adherents, this interference would have only an indirect effect.

Supreme Court Second Petty Bench Decision of March 8, 1996, 50 Minshu 13-469, 1564 Hanji 3. The Court affirmed a lower court's nullification of a school's denial of advancement and expulsion of a Jehovah's Witness student who refused to participate in school kendo training as clearly beyond the discretion of the school authorities (Osaka High Court Decision of December 22, 1994, 45 Gyoshu 12-2069, 873 Hanta 68, 1524 Hanji 8).

Supreme Court Grand Bench Decision of April 2, 1997, 51-4 Minshu 1673, 1601 Hanji 47, 940 Hanta 98. The Court affirmed in part and denied in part a lower court's determinations with respect to the claims of citizens of Ehime Prefecture who opposed the Ehime Prefectural government's donation of funds for offerings of votive candles and tamakuji (paper attached to sacred trees on shrine grounds) and other offerings on various memorial celebrations of the Yasukuni Shrine, a shrine dedicated to fallen soldiers in past wars, and the Ehime Prefectural Guardian Shrine; as violative of Articles 20(3) and 89 of the Constitution relating to the separation of church and state. The Court concurred that Articles 20(3) and 89 did not prevent a relationship between church and state considered appropriate in the context of sociological and cultural norms , but rather prohibited governmental actions which have both a religious purpose and the effect of aiding or promoting or, conversely, interfering or oppressing religious activity. While the Court agreed with the lower court (Takamatsu High Court Decision of May 12, 1992 43 6 Gyoshu 5-717) that the actions complained of must be considered to have some religious significance, and reversed the decision below in finding that the actions complained of leave the impression that the prefectural government is favoring one religious group and therefore have the effect of unconstitutionally aiding or promoting one religion over another.

Supreme Court First Petty Bench Decision of October 21, 1999, 1696 Hanji 96, 1018 Hanta 166. The Court affirmed a lower court's dismissal (Osaka High Court Decision of July 10, 1994) of claims by citizens of Minoo City against the municipality and its mayor for allocation of ¥445,000 of its fiscal 1976 social welfare budget for distribution to the Minoo Association of Families of War Dead, and expenditure of approximately ¥4,704 in costs for its disbursal by an official of the Minoo Office of Social Welfare. As the primary use of the allocated funds was for memorial services and other activities to honor war dead, the plaintiffs claimed the allocation of funds and use of a municipal employee to administer its disbursal constituted a governmental privilege to religious organization in contravention of Articles 20 and 89 of the Constitution and further violated Article 6 of the Social Welfare Administration Act and sought damages pursuant to Article 242-2(1)(4) of the Rural Self-Government Act. Agreeing with the district court (Osaka District Court Decision of October 14, 1988) and in light of previous case law, the Court determined that, while some of the activities of the association could be considered religious, such as visits to the Yasukuni Shrine in Tokyo where war dead are enshrined, the main activities of the association, such as memorial and mourning services for war dead, were not tied to any particular religion and did not, in and of themselves, make the association a religious organization. Although, in a sense, the funding provided constituted government funding of activities that could be deemed religious, the link was indirect and consequential, and did not support or promote a specific religion, nor oppress or interfere with other religions.

Osaka High Court Decision of March 9, 1995, (Unpublished). The Court dismissed with prejudice an appeal with respect to the unconstitutionality of the Sokuinorei and the Daijosai, the ceremonies commemorating the enthronement of the Heisei emperor. Although acknowledging that there may be some doubt with respect to the constitutionality of the use of public funds for the Sokuinorei and the Daijosai, there was no fundamental or direct influence on the separation between religion and government.

Osaka High Court Decision of December 15, 1998, 1671 Hanji 19. The High Court reversed in part a lower court determination regarding the expenditure of public funds in 1985 by Omihachiman City and Shiga Prefecture in connection with the performance of a traditional annual ceremony, called Shinkokukengyoji, involving the presentation of newly-harvested rice grain to Shinto deities (Otsu District Court Decision of October 25, 1993). In the year in question, the ceremony in Omihachiman was sponsored by an organizing committee chaired by the city’s former mayor, and, as in past years, the Omihachiman municipal government contributed approximately 4.8 million yen and the Shiga prefectural government contributed approximately 600,000 yen, largely as remuneration for the farmers who grew the grain used in the ceremony. In April 1986, eight residents of Shiga Prefecture filed suit against the former governor of Shiga Prefecture, the former mayor of Omihachiman and other officials for repayment of the approximately 5.48 million yen of public funds expended on the ceremony, alleging such payments violated Articles 20(3) and 89 of the Constitution, which provide for the separation of state and religion. The lower court had dismissed the plaintiffs’ constitutional claims, viewing the financial participation of the local and prefectural governments as largely for the purpose of promoting agriculture and the ceremony itself, although taking place at Shinto shrines, deeply connected to traditional custom. As a result, the payments did not have the effect of advancing any particular religious view at the expense of any other. The High Court, however, viewed the ceremony has having strong religious overtones although it was also aimed at promoting agriculture and as a demonstration of affection for the Imperial Family. While the funds paid to local farmers could correctly be characterized as expended for the purpose of promoting agriculture, the municipal government’s expenditure of public funds for the purposes of the ceremony itself gave the impression of state support of Shintoism, and was therefore in violation of Article 20(3) of the Constitution. The High Court nonetheless declined to order the claimed reimbursement of funds as at the time of their disbursement there was no Supreme Court precedent clearly indicating that such payments by a municipal government would result in a constitutional violation of the principle of separation of state and religion.

Kochi District Court Decision of July 17, 1998, (Unpublished). The Court ruled for the plaintiff citizens of the township of Towa, who sought damages and injunctive relief against the Towa municipal government and the mayor of Towa for contributions to two local Shinto shrines which the plaintiffs alleged violated Articles 20 and 89 of the Constitution. In 1993, in celebration of the 19^th anniversary of its establishment, the town of Towa, located in Kochi Prefecture, had provided approximately 3 million yen each to the Hachimangu Shrine and the Oigawa Shrine for the purpose of financing renovation of the shrine buildings. The Court agreed with the plaintiffs that the two shrines constituted "religious organizations or groups" as described in Articles 20 and 89 of the Constitution 20. Although the contributions made to both shrines were solely for the purpose of maintaining the shrine buildings, the ordinary citizen could easily conclude that the provision of funds to these shrines amounted to governmental support of a specific religious group not provided to other religious groups. Consequently, the provision of these funds to particular shrines in this case amounted to a violation of Articles 20 and 89 of the Constitution.

Tokyo District Court Decision of March 24, 1999, 1673 Hanji 3, 1003 Hanta 89. The Court dismissed the claims of the plaintiff Tokyo citizens who sought a declaration of the illegality of donations by the Tokyo municipal government in support of the 1990 Sokoinorei and Daijosai and related ceremonies and celebrations marking the ascension of Heisei Emperor to the imperial throne, and damages from the governor of Tokyo under Rural Self-Government Act, Article 292(2)(1)(4) for the decision to use public funds for this purpose. The plaintiffs had alleged that government financing of the ceremonies, which have heavy overtones of Shintoism, violated the separation of church and state under Articles 20 and 89 of the Constitution. In dismissing these claims, the Court acknowledged that many of the sponsored events have a relationship to religion, but found that their purpose is also to provide a venue for the announcement of the ascension of a new emperor to the people and provide for a secular celebration of that ascension. Moreover, such a celebration necessarily has a secular role given the Emperor’s constitutional role as the symbol of the nation of Japan and the Japanese people. Consequently, the mere fact of financial support of these events does not amount to any particular assistance or endorsement of Shintoism as a religion to the exclusion of other religious organizations, but falls within the appropriate relationship between the nation and Shintoism as a social component of Japan’s national culture. Thus, while it cannot be said that the government, through its contributions, has absolutely no relationship with Shintoism, its participation was limited to the secular aspects of the supported ceremonies. This sort of activity does not amount to support of religious activities which would be prohibited under Articles 20(3) and 89 of the Constitution.