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Hannah Schwendeman The Separation of Religion and State Faith and the Japanese

This paper addresses the formation of the and legal system of during the in the nineteenth century in the context of the historical relationship between religion and the state in Japan. I will examine how the post-World War II restructuring of Japan, led by Allied powers, affected the Japanese legal structure, , Supreme Court, the role of the emperor, and the concept of individual , specifically religious freedom. Despite efforts by the Allied powers to enforce the separation of church and state though the inclusion of such principals into the revised Japanese Constitution, the Japanese Supreme Court has attempted to mediate the text of the Constitution in an effort to reconcile the prevalence of religion in everyday Japanese life. Using the two most important cases regarding religious freedom between 1975 and 2000, this analysis provides evidence that the Japanese Supreme Court has been a pivotal actor in interpreting the scope of the new Constitution’s provision for the separation of church and state in Japan.

ith the surrender of its forces in August enumerated within the document would be Wof 1945, Japan succumbed to the Allied translated into Japanese society. This court is occupation and relinquished control of its often portrayed as weak by constitutional and country to the American victors. During their legal scholars, despite having made influential occupation, the Allied powers rewrote the decisions on controversial issues such as Japanese Constitution and restructured the religious freedom. While the Japanese Supreme Japanese , causing fundamental Court is generally viewed as conservative in two changes to both the core of the legal system and contentious cases, Sekiguchi v. Kadonaga and the Japanese conception of individual rights. Anzai v. Shiraishi, I argue that the court acted Such revisions included a strict separation of as a powerful arbiter in the determination of the religion and state in a country where for centuries, scope of religious freedom in Japanese culture the Emperor had justified his power through prior to the turn of the twenty-first century. religious doctrine. After the Constitution was Prior to World War II, the Japanese redrafted in 1947, it fell on the newly expanded Supreme Court exercised little political Supreme Court to determine how the rights power. The judges, while granted lifetime 6 Vol. 6 - No. 1

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The Separation of Religion and State s appointments, were essentially bureaucrats.1 The of propaganda supporting Shinto beliefs and courts themselves were positioned within the emperor worship.8 During this period, Buddhist Emperor’s branch and their decisions institutions were destroyed and confiscated were not legally binding.2 Furthermore, the under governmental orders, and Christian judges did not possess the power of judicial leaders were tortured and killed for practicing review over either legislative or administrative their religion.9 The religious duty of citizens .3 Essentially, any constitutional rights towards the state “encompassed and consumed granted to citizens could not be judicially argued political and patriotic duty.”10 Thus, religion or protected.4 and government were not only inseparable in The pre-war Japanese legal system was Japan during this era, but completely entangled formulated during a time when the Japanese with and embodied in the Emperor. Emperor was considered both the leader of the The conclusion of World War II and government and a Shinto god. During the Meiji the subsequent Allied Occupation significantly Restoration, a national period of modernization, restructured both Japan’s government and its Japan established a new body of law and court legal system, thus dismantling the apparatus system; in 1889, the took of . During the Allied Occupation effect.5 Under the Meiji Constitution, Shinto from 1945 to 1952, Japanese and Allied officials was “regarded as an obligation of the people – specifically the American military – rewrote toward the emperor and not as a religion” the Meiji Constitution.11 In the previous Meiji and the Emperor was considered to be the Constitution of 1889, state sovereignty had embodiment of both Shinto and the state.6 rested with the Emperor, but in 1947 that Religious freedom was granted under the Meiji power was transferred to the Japanese people.12 Constitution, except that this freedom could According to Harumi and Makoto Kojo, in these not interfere with civic duties; these freedoms transfers of power the was dramatically were considered to be a right extended by the restructured by the new Constitution in 1947.13 Emperor. Furthermore, the Meiji Constitution Previously, under the Meiji Constitution, the described the Emperor as sacred and inviolable, authority of the judiciary was subordinate to the contradicting the notion of religious freedom.7 executive branch. With the new Constitution In effect, the Meiji Constitution codified the of 1947, the judiciary became an independent supremacy of the Emperor over Japanese citizens branch of government equal to the in both government and religion. with the Supreme Court at the apex. Judicial From the commencement of the Meiji power was also expanded to include the right government’s rule in 1868 through the end of to examine the constitutionality of laws, a new World War II (with a brief respite from 1880- principle in Japan.14 This post-war change in 1905), the Shinto religion was fiscally supported 1947 established the structure for the Supreme by the Japanese government, Shinto priests were Court today, which is comprised of fifteen granted bureaucratic rights, and temples were Justices, including one Chief Justice. The public institutions. This governmental support Cabinet, which is the pinnacle of the executive of Shinto, referred to as State Shinto, led to the branch with the Prime Minister as its head, oppression of religious minorities and the spread selects and appoints these Justices, except for the Spring 2015 7

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s Hannah Schwendeman Chief Justice, who is appointed by the Emperor comprehending the fundamental role of Shinto after being designated by the Cabinet.15 These in Japanese culture, these Allied officials oversaw appointments are reviewed by the people the destruction of State Shinto during the post through popular vote every ten years as war era.18 Both Article 89 of the Japanese mandated by the Constitution, but such review Constitution, which prohibits the use of public has little significance; because most Justices are money on any religious institution, and certain above 60 years of age when appointed and must clauses of Article 20, which guarantees freedom resign by the age of 70, few Justices occupy of religion to all, were not part of the drafting the bench long enough to be reviewed.16 The process until the United States submitted its Supreme Court exercises the power of concrete constitutional draft in February of 1946; in , reviewing the constitutionality other words, the Allied powers imposed these of laws in specific cases referred to it by both principles onto the Japanese government.19 ordinary and appellate courts, opening access With the inclusion of these articles, State Shinto to the Supreme Court for individual citizens.17 was terminated when the new constitution The present structure of the Supreme Court was came into effect. In a society where previously largely modeled after the U.S. system by U.S. the highest government member, the Emperor, officials. was also a living god, there was now a strict separation of religious and state bodies, and it became the Supreme Court’s duty to ensure this “Without accurately comprehending the new constitutional provision was upheld. The Japanese Supreme Court has been fundamental role of Shinto in Japanese characterized by various constitutional and legal culture, these Allied officials oversaw the academics as constrained and conservative in its destruction of State Shinto during the use of judicial review powers.20 Judicial decisions are not generally discussed as the Japanese post war era.” courts are not considered to hold an influential position in Japanese politics and culture.21 However, through case law this branch has Through redrafting the constitution, defined the boundaries of the right to religious the Allied Occupation imposed a separation of freedom in a culture deeply influenced by religion and state upon the Japanese legal system. religious ceremonies. In their restructuring of Japanese governmental Sekiguchi v. Kadonga systems, the Allied powers ensured that State Two cases described below demonstrate Shinto was effectively dissolved as they considered how the Court has marked a far less distinct State Shinto to be the primary impediment to boundary dividing state and religion. I establishing democratic principles and religious demonstrate that in each case the Court created freedom in Japan. General Douglas MacArthur more room for religious presence and influence as well as his staff in the General Headquarters within state sanctioned institutions, contrary to assumed that Shinto was foundational to the goals of the Allied occupation’s constitution. Japanese ; without accurately The key to this maneuver was the application of 8 Vol. 6 - No. 1

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The Separation of Relgion and State s the purpose and effect test. precedent for the “purpose and effect test” when The case of Sekiguchi v. Kadonaga in the Court concluded that the purpose of the 1977, also known as the Tsu City Ground- Tsu City ground-breaking was to pray for the Breaking Case, was Japan’s first major safety of the construction rather than to support constitutional case in the post-World War II Shinto. Consequently, the Supreme Court ruled era to discuss religious freedom. In this case, that the public spending on the ceremony was the city Tsu held a ground-breaking ceremony not a violation of the constitution, even though for a new gymnasium where invitations were Article 89 clearly states “no public money or extended to both city officials and priests alike. other property shall be expended” on a religious The Shinto priests performed traditional rituals institution or association.26 at the site, which were meant to pacify the earth Anzai v. Shiraishi god in order to create a stable foundation for It was not until the Anzai v. Shiraishi 22 the new building. The use of city funds for case of 1997 that the Supreme Court found a the ceremony resulted in a legislator filing a violation of religion and state separation. In the lawsuit against the mayor, on the grounds that Anzai v. Shiraishi case, also referred to as the the expenditure was a violation of the separation Ehime Prefecture case, Haruki Shiraishi, the 23 of religion and state. When the case reached of the Ehime prefecture, faced lawsuit the Supreme Court, the Justices reasoned that charges from local residents after visiting a the government will inevitably interact with shrine and spending public money on both the religion, and that complete separation was tamagushi, a Shinto religious offering, and on not desirable. Furthermore, the Court argued lanterns for the shrine. The Court concluded that such separation would lead to religious through the purpose and effect test that these discrimination as these organizations would be purchases had explicit religious purposes and unable to obtain governmental support. In spite promoted Shinto over other religions and that of the text of the Constitution, the Supreme therefore, a violation of the separation of religion Court “concluded that total separation [of and state had occurred. It is important to note that government and religion] is impractical and this case did not overturn the decision of the Tsu 24 possibly unconstitutional”. The Court instated City ground-breaking case. Rather, the Justices what became known as the “purpose and effect distinguished this instance from the previous test”, which was intended as a balanced method ruling.27 In this case, the majority argued that of determining whether a constitutional the state should protect its religious neutrality as violation had occurred in the context of mandated by the Constitution; but the opinion religion-state relations. Essentially, the Court also states that total separation is unrealistic. The claimed that state entities could hold religious Justices utilized the purpose and effect test to ceremonies so long as the ceremony did not have demonstrate why the Ehime Prefecture case was the effect of promoting any particular religion a violation of religion-state separation without or of limiting religious freedom. This test still explicitly overturning their previous decision. requires state neutrality and is supposed to set The majority opinion mentions that because the boundaries on the contact between religious governor’s offerings were of a greater religious 25 and governmental entities. This case set the significance than the groundbreaking ceremony, Spring 2015 9

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s Hannah Schwendeman they exceed the limits of permissible religion- Justices are charged with interpreting how the state contact. The majority also argued that the articles of the Constitution will coexist with particular form of donation the governor used the traditions and . The Justices held specific religious connotations and noted established in the Tsu City ground-breaking that a more neutral method of donation could case that total separation of religion and state have been utilized.28 This case further defined was impractical; with this verdict, it became the the constitutional limits of religious freedom in Justices’ role to define how this constitutional relation to government officials. principle would be implemented in Japan Discussion and what its limitations would be. Through In both cases, the Justices utilized the purpose and effect test, the Justices have the purpose and effect test, which defines re-appropriated the concept of separation of government involvement with religion as religion and state, expanding its boundaries permissible so long as its purpose and effect do to account for traditional ceremonies that not support or promote a particular religion.29 remain integral to Japanese culture. The Justices Critics of the purpose and effect test argue formulated a method to grapple with the sudden that the test is so broad that it cannot protect imposition by foreign powers of constitutional their right to religious freedom. The dissenting provisions regarding religion. In short, the opinions of the Supreme Court in both of these Japanese Supreme Court’s use of discretion cases state that precisely because of the history made it a pivotal actor in delineating the role of of religious oppression in Japan, the articles of the separation of religion and state concept in the Constitution, specifically Articles 20 and 89, Japanese society. need to be strictly followed. While the majority opinion argues that complete separation of religion and state is impossible and therefore “Through the purpose and effect test, the some contact should be constitutionally Justices have re-appropriated the concept permissible, the dissenters in the Tsu-City and Ehime Prefecture cases reject this rationale as of separation of religion and state, it leaves the question of the degree of contact expanding its boundaries to account unresolved. They claim that any sponsorship for traditional ceremonies that remain of religious activities by public entities fundamentally contradicts the Constitution, integral to Japanese culture.” regardless of these activities’ effects. They contend the purpose and effect test weakens religious freedom because it is so ambiguous The Japanese Supreme Court clearly and subjective.30 understands that Shinto rituals constitute a However, the purpose and effect fundamental source of Japanese culture. The Tsu test is necessarily broad as it allows principles City ceremony demonstrates how something of religious freedom to be more successfully as mundane as city construction contains a incorporated into Japanese society. With the religious aspect. If a ritual praying for the safety judicial power of constitutional review, these of a construction project is part of an essential 10 Vol. 6 - No. 1

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The Separation of Religion and State s cultural process, should it be allowed to occur would function the same way in the context of even if it might be unconstitutional? This Japanese culture as in American society. However, question is further complicated by the foreign Japanese Justices have demonstrated that similar influences which dominated the constitutional legal structures do not necessarily lead to similar writing process and enforced these notions legal outcomes. Structures can affect the issue, of religious freedom. The Japanese Supreme but it is the historical and social context of a Court cannot rewrite the Constitution and law that determines its implementation and remove the influence of the Allied powers, but significance, especially through the room created it can reinterpret this text from the context by the interpretation possible in the application of Japanese society and determine the legal of the purpose and effect test. boundaries of these articles. The Supreme Court thus exerts political influence on the issue of 1 religious freedom by determining the scope and David O’Brien, To Dream of Dreams: Religious limitations of this individual right, mediating Freedom and Constitutional Politics in Postwar Japan (University of Hawai’i: N.p., 1996), the text and rights it must protect with the 70. reality of the culture these rights are situated in. 2 Beer 19, The Constitutional Case , Because the Allied officials feared 1970 through 1990 (Seattle: University of that continued governmental support Washington, 1996). of Shinto would hinder the democratic 3 O’Brien, To Dream of Dreams, 121. process, they included explicit articles within 4 Beer, The Constitutional Case Law, of Japan, 19. the constitutional draft prohibiting state 5 Harumi and Makoto Kojo, “The Legal System of interference in religious activity. These principles Japan”, Modern Legal Systems Cyclopedia were codified into the Constitution as Articles (Buffalo, NY: William S. Hein, 1991), 20 and 89. The case law of the Supreme Court, 2.70.11. 6 Shigenori Matsui, “Japan: The Supreme Court however, has reinterpreted these articles and and the Separation of Church and State” broadened their meaning through the purpose International Journal of Constitutional and effect test. In doing so, the Justices allow Law 2, no. 3 (2004): 536, accessed October some governmental involvement with religious 31, 2013, http://heinonline.org/HOL/ rituals, as demonstrated in the Tsu City case, Page?handle=hein.journals/injcl2&id=542. while still upholding the Constitution. Despite 7 Meiji Const. art. III; O’Brien 40-41; Yamagishi, being considered a weak court, the Supreme 925. Court has been the leading political body 8 O’Brien, To Dream of Dreams, 33-37. 9 determining how the civil right of religious Yoshiya Abe, “Religious Freedom under the Meiji freedom can be incorporated into Japan. Constitution”, Contemporary Religions in Japan 9 no. 4 (1968): 328, accessed The Supreme Court continues to October 29, 2013, http://www.jstor.org/ evaluate what the separation of religion and state stable/30233033. actually means in the context of the Japanese 10 Keiko Yamagishi, “, Religious culture. The Allied officials of 1945 implemented Political Participation, and Separation of their own ideals and structures into the Japanese Religion and State: Legal Considerations government, assuming that these processes from Japan”, Brigham Young University Law Spring 2015 11

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s Hannah Schwendeman Review 3 (2008): 925, accessed November

12, 2013, http://heinonline.org/HOL/ Hannah Schwendeman Page?handle=hein.journals/byulr2008&g_ is a junior majoring in Anthropology and sent=1&id=935. Law, Societies, and Justice (LSJ) with 11 Beer, The Constitutional Case Law of Japan, 3. Interdisciplinary Honors. Her interests include 12 Beer The Constitutional Case Law of Japan, 7. research on mass incarceration, American 13 Kojo, “The Legal System of Japan”, 2.70.19. history, and technical theater. This article 14 Ibid., 2.70.19-20. was originally written for an LSJ course, 15 Ibid., 2.70.19. Comparative Law and the Courts, in Autumn 16 Kojo, “The Legal System of Japan”, 2.70.29-33; 2013. This is her first piece of published work. Japan Const. art. LXXX. 17 Kojo, “The Legal System of Japan”, 2.70.29-30. Edited by Adam Khan and Anna Mikkelborg 18 O’Brien, To Dream of Dreams, 51. 19 Andrew Van Kinkle, “Separation of Religion and State in Japan: A Pragmatic Interpretation of Articles 20 and 89 of the Japanese Constitution”, Pacific Rim Law & Policy Journal 21 no. 2 (2012): 388, accessed October 29, 2013, http://heinonline. org/HOL/Page?handle=hein.journals/ pacrimlp21&id=375. 20 Kojo, “The Legal System of Japan”, 2.70.20. 21 Frank Upham, “Japan’s Activist Courts” (presentation, UCLA, Los Angeles, CA, March 5, 2008). 22 Beer, The Constitutional Case Law of Japan, 482. 23 Matsui, “Japan: The Supreme Court and the Separation of Church and State”, 538. 24 Van Winkle, “Separation of Religion and State in Japan”, 368. 25 Ibid. 26 Japan Const. art. LXXXIX. 27 Matsui, “Japan: The Supreme Court and the Separation of Church and State”, 539-40. 28 Van Winkle, “Separation of Religion and State in Japan”, 372-373. 29 Matsui, “Japan: The Supreme Court and the Separation of Church and State”, 539. 30 Beer, The Constitutional Case Law 483-485; Anzai v. Shiraishi (1997), translated in Series of Prominent Judgments of the Supreme Court Upon Questions of Constitutionality: Nos. 27-30 1996-99, No. 30 (1999).

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