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1992 (Gyo-Tsu) 156

Date of the judgment (decision)

1997.04.02

Case Number

1992 (Gyo-Tsu) 156

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Title

Judgment upon constitutionality of the prefecture's expenditure from public funds to religious corporations which held ritual ceremonies

Case name

Result

Judgment of the Supreme Court, Grand Bench, April 2, 1997

Court of the Prior Instance

Summary of the judgment (decision)

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Main text of the judgment (decision)

Appellants: Kenji Anzai, et al.
Appellees: Haruki Shiraishi, Tomotada Nakagawa, Kazuhiro Izumida, Tazuko
and Kazuhiko Suyama (who are successors of deceased appellee Shingo Suyama), Koichi Takeda, Kiyoshi Yamada and Kanichi Yabuki
A jokoku appeal was filed by the appellants against the judgment that Takamatsu High Court handed down on May 12, 1992, in a case concerning a petition to claim monetary compensation in lieu of local government based on Article 242-2(1) iv of the Local Autonomy Law (Takamatsu High Court, (Gyo Ko) No. 3 and 5 of 1989). The appellants' petition requested reversal of the judgment; the appellees requested a judgment dismissing the jokoku appeal. Accordingly, this court renders judgment as follows:

DECREE
Section 1 of the High Court judgment is reversed, and the koso appeal of the appellee Shiraishi is dismissed. The remainder of the jokoku appeal is dismissed.
The appellants shall bear the cost of the jokoku appeal concerning the second paragraph of this judgment; the appellee Shiraishi shall bear the remainder of the cost for both koso and jokoku appeals.

Reasons

I. Concerning the grounds for jokoku appeal by the attorneys for the appellants (Nishijima, Sugawara, Saeki, Higashi, Kusanagi, Tani, Komoda, Takada, Imagawa, Mizuguchi, Inoue, Tsumura, Aga, Takamura, Mitsuno, Inosaki, Kubo, Nishiyama, Horii, Watanabe, Hirai, Kuwashiro, Usui, Shige and Kida):
1. The facts and judicial history
According to the facts established by the High Court, from 1981 to 1986, when appellee Shiraishi held office as the governor of Ehime Prefecture, (a) appellee Nakagawa, who had been the chief of the Tokyo office of Ehime Prefecture contributed 45,000 yen (5,000 yen on each of nine occasions) from public funds as tamagushiryo to religious corporation Yasukuni Shrine when it held its Spring and Autumn Ceremony; (b) appellee Nakagawa contributed 31,000 yen (7,000 yen or 8,000 yen on each of four occasions) from public funds as kentoryo to Yasukuni Shrine when it held the Mitamasai ceremony in mid-July; (c) appellee Izumida, deceased appellee Suyama, appellee Takeda, appellee Yamada, and appellee Yabuki contributed 90,000 yen (10,000 yen on each of nine occasions) from public funds as kumotsuryo to religious corporation Gokoku Shrine of Ehime Prefecture through the Ehime Prefecture Association of the Bereaved Families of the War Dead when Gokoku Shrine held its Spring and Autumn Memorial Ceremony. This is a taxpayers' suit claiming damages in lieu of local government based on Article 242-2(1) iv of the Local Autonomy Law, and the issue here has been whether the above expenditure from public funds was the prefecture's unconstitutional financial act under Articles 20(3) or 89 of the Constitution.
The District Court decided that the above expenditure of the prefecture was unconstitutional, because it must be regarded as a "religious activity" prohibited under Article 20(3) of the Constitution. The judgment said not only that it cannot be denied that the purpose of the offerings had religious meanings but also that the effect of them would support and promote the religious acts of both Yasukuni and Gokoku Shrines. Therefore, the connection between the prefecture and these shrines exceeded reasonable limits in light of the social and cultural circumstances of our country.
The High Court judgment, on the contrary, said that the expenditure in this case violated neither Article 20(3) nor Article 89 of the Constitution, because it did not support, promote or, conversely, oppose or interfere with other religions. The High Court decision said that, even though the expenditure had religious meanings, according to the average person's religious understanding, making such small offerings as Tamagushiryo can be regarded as a social courtesy when they worship at shrines. It also said that the governor made the expenditure as a part of administration in order to support bereaved families and did not have any other intention, purpose, or deeply religious belief, and that the amount of offerings was really small and within the scope of social courtesy. Moreover, the effect and influence of these conducts on average persons would never cause any special interest or movement to regain the legal status of national Shinto that Yasukuni Shrine had during World War II or to support and promote Shinto.
2. The decision of this court regarding the illegality of the expenditure
The ruling of the High Court cannot be accepted. The reasons are as follows:
(1) The principle of separation of state and religion and the state acts prohibited under Articles 20(3) and 89 of the Constitution
The Constitution has several provisions, such as the latter part of Article 20(1), Article 20(3), and Article 89, that refer to what is called the principle of separation of state and religion.
Generally. the principle of separation of state and religion has been understood to mean that the state, which includes local government in this judgment, is not to interfere with religion and that it should have a secular nature and religious neutrality. The relationship between state and religion has differed in various countries corresponding to various historical and social circumstances. Previously in our country, Article 28 of the Meiji Constitution guaranteed the freedom of religion. However, it was an imperfect guarantee not only because the Meiji Constitution actually restricted freedom of religion to the extent that "it was not prejudicial to peace and order, and not contrary to the peoples' duties as subjects," but also because State Shinto was virtually made the national religion and sometimes belief therein was demanded and other religious groups were subject to severe persecution. Considering these several negative effects occurring from the close connection between the state and Shinto after the Meiji Restoration, the present Constitution has newly provided for the unconditional freedom of religion and, in order to secure its guarantee further, established the principle of separation of state and religion. Historically, several religions have developed pluralistically in Japan. In these circumstances an unconditional guarantee of religious freedom alone has not been enough to guarantee fully the freedom of religion. So as to eliminate all ties between the state and religion, it has also been necessary to enact rules providing for the separation of state and religion. Thus, the Constitution should be interpreted as striving for a secular and religiously neutral state by regarding the total separation of state and religion as its ideal.
However, originally the provision of the separation of state and religion is only an institutional and indirect guarantee of the freedom of religion. It does not guarantee freedom of religion directly, but it attempts to guarantee it indirectly by securing a system that separates state and religion. Moreover, the state unavoidably connects with religion when the state regulates social life or implements various policies to promote or subsidize education, social welfare, or culture. Thus, an actual system of government that attempts a total separation of state and religion is virtually almost impossible. Furthermore, to attempt total separation would inevitably lead to unreasonable situations in society. Thus, it follows that there are inevitable and natural limits to the separation of state and religion. So when the principle of separation of state and religion is actually established as a state system, a state must accept some degree of actual relationship with religion according to its own social and cultural characteristics. Therefore, under these premises, the remaining question must be to what extent such a relationship will be tolerated under the basic purpose of the principle of guaranteeing freedom of religion. From this perspective, the principle of separation of state and religion, which is the basis of the constitutional provision and becomes the guiding principle for interpretation, demands the religious neutrality of the state but does not prohibit all connection with religion. Rather, taking the purposes and effects of the given conducts into consideration, it should be interpreted as prohibiting the state's conducts that are beyond the appropriate limits in light of the social and cultural circumstances of our country.
According to such significance of the principle of separation of state and religion, "religious activity" in Article 20(3) should not be interpreted as prohibiting all religious activities that the state or state authority might be involved in. Rather, only the activities exceeding such reasonable limits, the purpose of which have some religious meaning and the effect of which is to support, promote, or, adversely, oppose or interfere with religion, should be prohibited. And in determining whether a given religious act constitutes a prohibited "religious activity" or not, not only the external aspects of the conduct but also the place of the conduct, the average person's religious understanding toward the conduct, the existence or extent of the actor's religious intention, purpose, or awarencess in holding the ceremony, and the effect or influence on the average person should be considered as factors. And at that time, objective judgment based on socially accepted ideas is ne cessary.
Article 89 of the Constitution stipulates that no public money or other property shall be expended or appropriated for the use, benefit, or maintenance of any religious institution or association. In light of such significance of the principle of separation of state and religion, the prohibited connection with religion under Article 89 should be interpreted also as one that exceeds such reasonable limits. And the same rule as established in Article 20(3) must be used in determining whether certain religious conduct is within the scope of Article 89 or not.
These are also the meaning of the rules that have already been established at some Grand Bench judgments.(See the Supreme Court, Grand Bench Judgment (Gyo Tsu) No. 69, 1971, decided on July 13, 1977 (Minshu 31-4 at 533), and the Supreme Court, Grand Bench Judgment (O) No. 902, 1982, decided on June 1, 1988 (Minshu 42-5 at 277)).
(2) The illegality of the expenditure

Then, from these standpoints, the illegality of the offerings in this case should be examined.
(a) According to the facts established by the High Court, the appellees, including Nakagawa, made offerings from the prefecture's public funds as tamagushiryo, kentoryo, or kumotsuryo at the time of the Spring and Autumn Ceremony, Mitamasai ceremony, or memorial ceremony, which were all traditional religious ceremonies held by Yasukuni Shrine or Gokoku Shrine, which are religious corporations and clearly religious groups as stipulated by Article 20(1) of the Constitution, within the precincts of each shrine. Now, it is a judicially noted fact that holding ceremonies are the main religious activities for Shinto, that the main points of the Spring and Autumn Ceremony or Memorial Ceremony are religious rites held according to Shinto tradition, that they are among the most important traditional ceremonies held by each shrine, and that the memorial ceremony has almost the same religious rite and takes place on the largest scale among ceremonies held by Yasukuni Shrine. Moreover, it is clear that each shr ine has regarded tamagushiryo, kumotsuryo, and kentoryo as having religious meanings, because tamagushiryo and kumotsuryo are offered to the Shinto god when religious rites are held at the time of the Spring and Autumn Ceremony or memorial ceremony, and because, when kentoryo is offered, lights with the contributors' names are displayed within the precincts of the shrines at the time of the Mitamasai ceremony.
According to these facts, it is clear that the prefecture was involved in important religious ceremonies held by specific religious groups. And generally, making such offerings as tamagushiryo at a time when important traditional ceremonies are held by the shrines within their precincts is much different from holding a groundbreaking ceremony, which is a ceremony to pray for stable foundations and accident-free construction held by an owner within a construction site, since a groundbreaking ceremony can be regarded as only a secular social event whose religious significance has gradually weakened over time. The offerings in this case can hardly be thought of as just a secular social courtesy by an average person. So, more or less, the contributors of such offerings as tamagushiryo usually think that they have some religious meanings, and so do the appellees in this case. And in this case, the fact that the prefecture was intentionally involved in the specific religious groups cannot be denied, since the prefecture had never made offerings to the same kind of religious rites held by other religious groups. According to these analyses, if a local government has a special involvement with a specific religious group as in this case, the average person is impressed that the prefecture especially supports this specific religious group and that this religious group is special and different from other religious groups. As an effect of these impressions, interest in the specific religion will be stimulated.
The appellees contended that this expenditure did not violate the Constitution, because it was just a social custom with a secular purpose to mourn for the war dead and to console the bereaved families and an administrative act intended to support the bereaved families. We find that a great number of persons who are enshrined in Yasukuni Shrine and Gokoku Shrine are the war dead of World War II. We also find that not a few of the local residents of Ehime Prefecture, including the bereaved families, wish the local government to mourn for the war dead enshrined in Yasukuni Shrine or other shrines officially. Some of them wish so because of their desire to mourn for the war dead, not because of their religious beliefs. In response to such wishes, this offering of tamagushiryo could be assumed to be conventional. However, reviewing the above-mentioned process of establishing the Constitution, in which the relationship between the state and Shinto had such a harmful effect after the Meiji Restorati on that the Constitution now stipulates the separation of state and religion, the relationship between a local government and a specific religion cannot be allowed as not exceeding the reasonable limit that the Constitution stipulates, even if not a few local residents wish so. We consider that it is possible to mourn for the war dead and to console the bereaved families without such a special relationship with a specific religion. Moreover, as we mentioned above, we do not consider that the offering of tamagushiryo to a shrine's ceremonies has become a social courtesy. Incidentally, some people consider that the offering of tamagushiryo and the offering of koden are equivalent in meaning. However, koden is generally recognized as a gift for the bereaved families to console them and the deceased, not as a gift to support the priests or the religious organizations that conduct the funeral or ceremony, so average people consider that the offering of koden is completely different from the offering of tamagus hiryo to religious organizations at ceremonies conducted by them. The appellees also contended that the offering of tamagushiryo has the same meaning as the offering of saisen, which is to offer some money to shrines or temples when we visit them. However, saisen is generally offered anonymously, so it is clear that the offering of tamagushiryo in the name of a local government is different from the offering of saisen in social meaning. Thus, the offering of tamagushiryo is not a social convention with a secular purpose and does violate the Constitution, even if it is intended primarily only to mourn for the war dead and to console the bereaved families.
Based on the above consideration, it is reasonable to assume that these offerings by a local government to Yasukuni Shrine or Gokoku Shrine, as mentioned above, constitute prohibited religious activities under Article 20(3) of the Constitution, because the purpose of the offerings had religious significance and the effect of the offerings led to support or promotion of a specific religion, and the relationship between the local government and Yasukuni Shrine or other shrines caused by these offerings exceeded the reasonable limit under the social and cultural conditions of Japan. Thus, these disbursements were illegal because they were made to religious activities prohibited by the article. The trial court failed to interpret this article.
(2) It is clear that Yasukuni Shrine and Gokoku Shrine are religious organizations as stipulated by Article 89 of the Constitution, and, as mentioned above, it is assumed that these offerings of tamagushiryo to Yasukuni Shrine and Gokoku Shrine resulted in a special relationship between the local government and these shrines that exceeded reasonable limits under the social and cultural conditions of Japan. So the expenditure was in the category of payment of public funds prohibited by this article and illegal. Thus, the trial court also failed to interpret the law concerning this article.
3. Appellees' liability to compensate damages

Though the trial court considered that the expenditure was not illegal based on a false decision and concluded that the appellants' claims should be dismissed, the expenditure was illegal as mentioned above. Now, we turn to the question of whether the appellees are liable to pay compensation to the local government.
Under the facts lawfully found by the trial court, when the expenditure was conducted, appellee Shiraishi, who was the governor of the prefecture, had the power to make these payments. However, the regulation set by the local government delegated the power to make the payments to Yasukuni Shrine to the head of the Tokyo office of the local government, so appellee Nakagawa, who was in the position at that time, actually made the payments to Yasukuni Shrine. It also gave the head of the welfare for aged people section of the living and welfare division of the local government the power to make the decision concerning payment to Gokoku Shrine, so appellee Izumida, the late Suyama (an appellee before succession), appellee Takeda, appellee Yamada, and appellee Yabuki, who were in that position, actually made these payments.
As mentioned above, appellee Shiraishi delegated these payments to other appellees who were officers of the local government and let them actually make the payments, so he has to compensate damages resulted from this illegal expenditure to the local government in case which he violated his duty to supervise them and to prevent them from the expenditure with intention or negligence, (See Supreme Court, Second Petty Bench Judgment, case (Gyo Tsu) No. 137 of 1990, decided on December 20, 1991, Minshu 45-9, p. 1445; Supreme Court, Third Petty Bench Judgment, case (Gyo Tsu) No. 148 of 1987, decided on February 16, 1993, Minshu 47-3, p. 1678.) Under the facts lawfully found by the trial court, appellee Shiraishi let other appellees bring and offer tamagushiryo to Yasukuni Shrine or other shrines. As mentioned above, considering that the expenditure violated the Constitution, and the Ministry of Education and the Ministry of Home Affairs made some notifications requiring local governments to deliberate w hen they made payments of public funds to specific religious organizations as tamagushiryo or kumotsuryo in the context of the principle of separation of state and religion, appellee Shiraishi violated his duty to supervise local officers with intention or negligence. Thus, he must compensate for these disbursements to the local government.
However, the latter part of Article 243-3(1) of the Local Autonomy Law limits the conditions resulting in local officers' liability, so other appellees need not compensate the local government unless they conducted the payment with intention or great negligence. Under the facts lawfully found by the trial court, appellee Nakagawa and other appellees were local officers who were delegated the power to make these payments and conducted them under the above mentioned supervision of the governor. In addition, it was not clear to them that these payments violated the Constitution. So they did not make the payments with intention or great negligence, though they did them with the false consideration that these payments did not violate the Constitution. Thus, the other appellees, except appellee Shiraishi. need not compensate the prefecture.
4. Conclusion

From the above-mentioned, the appellants' claim against appellee Shiraishi should be accepted, and the appellants' claim against the other appellees should be dismissed. The conclusion of the judgment of the District Court can be approved.
Thus, concerning the appellants' claim against appellee Shiraishi, Decree 1 of the judgment of the High Court, which reversed the decision of the District Court and dismissed it, should be reversed, and the koso appeal against the judgment of the District Court by appellee Shiraishi should be dismissed. Then, concerning the appellants' claims against the other appellees, the jokoku appeal against Decree 2 of the judgment of the High Court, which dismissed the koso appeal by the appellants, is not accepted and dismissed.
II. The effect of withdrawal of jokoku appeal by Tomomi Manabe

Tomomi Manabe, one of the jokoku appellees, submitted a brief regarding the withdrawal of his jokoku appeal. Now we consider the effect of the withdrawal.
This litigation is a jumin sosho (taxpayers' suit) provided by Article 242-2 of the Local Autonomy Law. This article authorizes local residents who are members of the local community to file a suit that is provided by each paragraph of Section 1 of this article, representing, so to speak, the whole of the residents, to observe the operation of financial administration of the local government for the interests of the whole of the local residents. Section 4 of this article stipulates that while a suit that is provided by Section 1 of this article is pending, other residents cannot file another suit of the same claim. It is reasonable to assume that the reason for this regulation is to require residents to file the same claim at one time as necessary joint parties and to try the case through the same procedure in order to resolve it at one time because of the nature of a taxpayers' suit mentioned above. Thus, the effect of judgment of the taxpayers' suit will extend to all residents of the local c ommunity, not only to the residents who file the suit. So, a taxpayers' suit filed by some residents is in the category of "in case which the conclusion of the suit should be common to the members of each party" provided by Article 62(1) of the Code of Civil Procedure and assumed to be ruiji hitsuyoteki kyodo sosho (quasi-necessary joint parties).
Incidentally, in quasi-necessary joint parties, action related to the suit conducted by some of these members will have an effect on the interests of all members (Article 62(1) of the Code of Civil Procedure). Appeal is a resort to an appellate court to review the decision of an inferior court and to request the correction or reversal of the error or injustice of the decision that is not favorable for the appellant. Thus, in quasi-necessary joint parties, an appeal filed by some members of each party will prevent the judgment from being finalized and move the whole of the suit to the appellate court. Moreover, in this case, the judgment of the appellate court will effect the rest of the members who do not appeal by themselves. However, to make the same conclusion in this suit, it is enough that the appeal of some members takes effect in the case mentioned above. In addition, considering the nature of the taxpayers' suit mentioned above, it is not reasonable to require one who has filed a taxpa yers' suit but no longer would like to continue it representing the whole of the residents be in a position of appellant in spite of his wish, and in a taxpayers' suit filed by some residents, a particular claim on public interest to prevent or correct the same particular illegal conduct or omission on financial or accounting administration is sought and each plaintiff does not have an individual interest in its nature. Therefore, the decrease of the number of plaintiffs after filing a suit does not affect the scope of the trial, the way of trial, and the effect of the judgment. Therefore, it is not reasonable to assume that Article 7 of the Administrative Case Litigation Law or Article 62(1) of the Code of Civil Procedure stipulates that one of the members who joins the litigation but does not appeal by himself will be an appellant in spite of his wish. It is assumed that one of the members of each party who does not appeal by himself will not be an appellant. This is the same with one of the members of each party who has appealed once but withdrawn it afterward. Thus, withdrawal of appeal by some of the members of each party who have appealed once will not make the judgment of the inferior court finalized in relation with them, but make them no longer be appellants. The decision of the Supreme Court, Second Petty Bench, Judgment, case (Gyo Tsu) No. 11 of 1982, decided on April 1, 1983, Minshu 37-3, p. 201, is reversed as long as it conflicts with the decision mentioned above.
Thus, we consider that Manabe was no longer an appellant after he withdrew his appeal.

Therefore, this court by unanimous opinion of the Justice of the Bench, except the supplementary opinion of Justice Masao Ono, Hiroshi Fukuda, the opinion of Justice Itsuo Sonobe, Hisako Takahashi, Yukinobu Ozaki, and dissenting opinion of Justice Toru Miyoshi, Tsuneo Kabe, renders judgment as set forth in the decree in accordance with Article 7 of the Administrative Case Litigation Law and Articles 408, 396, 384, 96, 95, 89, and 93 of the Code of Civil Procedure.
The supplementary opinion of Justice Masao Ono concerning part 2 of Section I is as follows:

I agree with the majority opinion. However, I would like to supplement it concerning part 2 of Section I.
1. The purpose of the conduct in the present case

What should be attached greater importance in this case is the fact that the offerings were provided to the ceremony of Yasukuni Shrine, which is a specific religious group, though the purpose of the offerings was to honor the memory of the war dead and to console the war bereaved. The real point of the matter would be overlooked if it is discussed whether consolation of the war dead by a local administrative body has religious significance or whether it is a social courtesy without taking this point into consideration.
The appellee Shiraishi argues that the offering in this case was provided in order to yield to the request of the organization of the bereaved families in the prefecture, which was a group of his supporters and the president of which was he himself, that the offering was provided as part of the administration by the prefectural government for supporting the war bereaved families through consolation of the war dead and the bereaved, and that it was not done with any specific consciousness.
However. the purpose of a conduct, which should be one of the criteria in determining whether the conduct constitutes a proscribed "religious activity" under Article 20(3) of the Constitution, should not be determined only by the existence and the strength of the subjective and internal emotions of the doer, but should be considered objectively in relation to the form of the conduct and so on. Especially when public funds are used for religious activities themselves, not for the secular activities of a religious group, the religious significance of the objective purpose of the conduct cannot be denied simply because it also has a secular purpose.
Though the expenditure from public funds in the present case had an administrative purpose to support the war bereaved, its objective was the most important ritual of Yasukuni Shrine, and this is beyond the category of the original administrative activities, which are secular. Therefore, it is undeniable that the expenditure from public funds in this case was directly aimed at supporting the religious ceremony of the specific religious group and that it had a religious significance.
2. The effect of the conduct in the present case

The appellee Shiraishi argues that the offering of tamagushiryo was a small sum of money provided for consolation of the war dead and that it did not especially raise interest in the religion, nor did it support or promote the religion.

It may be possible to argue that the offering in this case did not necessarily support or promote the religion from an economic point of view, as its amount was between 5,000 yen and 10,000 yen a time, though the offering had been continued over considerably many years. However, in considering application of the principle of separation of state and religion, one should not be bound only by the outward and economic aspects of the conduct in question but should see its substance in the light of social and historical conditions, and one should also consider its immaterial or spiritual effect and influence on society. From this point of view, it is incontrovertible that the influence or effect of the conduct in this case is important, as I discuss below.
(1) Various religions have developed and are existing pluralistictly in this country, and each religious group holds memorial services for the war dead following its own doctrines and ceremonial forms. If a local government supports only memorial services held by Yasukuni Shrine, it is difficult to deny that such a conduct gives an impression to the general public that the local government has selected these rituals, giving them priority over others, and takes their religious value as most important. Thus, it is incontrovertible to say that the local government gives important symbolic advantage to a specific religious group. The above is the same as what the majority opinion says. Generally speaking, a public institution is prohibited from supporting or promoting any religion. In particular, it would be against the religious neutrality of the state, which is the core of the separation of state and religion, to select a particular religious group out of coexisting religious groups and support its religious ceremony.
(2) The secular influence of the expenditure from public funds for tamagushiryo by the local government cannot be ignored either.

It is not rare that ceremonies whose origins are religious rituals have lost their religious significance over the years and remain as social courtesies and customs. Even if a public institution holds such a ceremony or attends it, no one takes it as support for a specific religious group. Furthermore, while such a conduct may contribute to maintaining good social relations, it will hardly bring about any social conflict. As to the point that a public institution supports Yasukuni Shrine by providing public funds to its rituals, on the other hand, those who stand in awe of Yasukuni Shrine and those who regard Yasukuni Shrine as the central institution for consolation of the war dead may feel satisfaction and sympathy with it, but those who belong to a religious group whose doctrines are different from that of Shinto and those who remember that they were compelled to worship Yasukuni Shrine as the central existence of the national religion, or those who think it incongruous that Yasukuni Shrine e nshrines mainly soldiers, army civilian employees, and practical army civilian employees but few victims of the war who were ordinary citizens, may feel dissatisfaction and antipathy to it. Such antagonism can occur not only in the area of religion but also in the area of society and politics. If a public institution conducts religious activities and widely exerts such an effect on society, the public institution will involved in religious conflict, and, at the same time, religion will be involved in secular conflicts. It is obvious that this will transcend the permissible limits as social courtesies and customs and that this is likely to do harm to both the public institution and the religious group. Avoiding such a situation will conform to the purpose of the Constitution, which adopts the strict principle of separation of state and religion.
3. The appellee Shiraishi argues that it is a social courtesy for a local government to offer tamagushiryo to rituals of Yasukuni Shrine, because the shrine is in a central position in consolation of the war dead in this country.

However, even if the offering of tamagushiryo has a nuance of courtesy, and even if Yasukuni Shrine was treated as the central institution for consolation of the war dead at one time in the history of modern Japan, these factors cannot justify an exceptional treatment to the principle of separation of state and religion.
As the Grand Bench judgment (decided on July 13, 1977) quoted in the majority opinion and the majority opinion contend repeatedly, the adoption of the principle of strict separation of state and religion by Article 20(3) and Article 89 of the Constitution was based on the history of our country after the Meiji Restoration, when the state and Shinto were united in society, Shinto was actually given the status of national religion, faith in Shinto was demanded, and some religious groups suffered severe persecution. Such unity of state and religion was caused by the introduction of rituals and ceremonies similar to those of Shinto as social rules at the secular level under the pretext that "shrines are not religion", and by the actual compulsion of Shinto as the subjects' duty. Since World War II, the present Constitution, in view of the above historical experience, has given strong guarantee to the freedom of religion as a fundamental right of the citizens and has adopted the principle of separation of state and religion as an institutional guarantee, setting up the above provisions with the recognition that the unity of state and religion has a high risk of infringement on religious freedom. In the light of the circumstances and the purpose of the legislation as stated above, each of the above provisions should be interpreted to be a compulsory rule for public organizations. It is true that there are some people in the society of our country who hold Yasukuni Shrine in reverence, and such feelings are guaranteed by the freedom of religion. However, if any public organization offers tamagushiryo to Yasukuni Shrine, which is a specific religious group, using public funds, and shows special respect to it, in view of its substantial purpose and effect, that obviously means a special relationship between the public organization and the specific religious group in consolation and mourning of the war dead, which is absolutely impermissible in the light of the compulsory nature of the above provi sions of the Constitution. Needless to say, that can be said not only about Yasukuni Shrine but also about all other religious groups.
The supplementary opinion of Justice Hiroshi Fukuda concerning part 2 of Section I is as follows:

I agree with the majority opinion. However, I would like to supplement a little about what I think concerning religious freedom in this country.

Religious freedom is one of the most fundamental civil liberties in human rights, and protection of the freedom is regarded as most important in the modern democratic state. As discussed in the majority opinion, the rule of separation of state and religion in the Constitution was established as an institutional guarantee to make such freedom of religion more certain.
In our country, Shinto is connected to the lives of many citizens through annual events and ceremonial occasions, and it is true that participation in such events and ceremonies are partly accepted as a natural matter. Nevertheless, Article 20 of the Constitution, which guarantees religious freedom, takes for granted that Shinto is one of many religions. Therefore, in my opinion, in considering the permissible limit of connection of the state (including a local government) with a religion, it is essential to always remember that the concept of the irreligiousness or the religious neutrality of the state applies to all religions, including Shinto.
Furthermore, in my opinion, in applying the rule of separation of state and religion, which was established to guarantee religious freedom, basically a cautious attitude toward allowing the state's involvement is important. The reason is that there are some cases in various countries' histories where permission of a state's contact has resulted in an excessive involvement (interference or compulsion). It is my opinion that it is important to keep such a cautious attitude also because our country should guarantee religious freedom and secure its magnanimity to any religion in these days when its citizens have more and more opportunities to come into contact with various religions through international relations, which are becoming closer.
The opinion of Justice Itsuo Sonobe concerning part 2 of Section I is as follows:

I agree with the conclusion of the majority opinion that the expenditure of public funds to Shinto shrines violates the Constitution. However, my reasoning is different.
In Japan since World War II Yasukuni Shrine and Gokoku Shrines have been looked upon as central institutions of war memorial. Because of the character of these shrines, the opinion of the High Court and appellees have emphasized that these shrines differ in meaning from other ordinary religious organizations. However, since the reform of the law concerning religion after World War II, Yasukuni Shrine and Gokoku Shrines have been relegated to and are not different from other ordinary religious organizations.
Since there is no difference between these shrines and other religious organizations, I believe that the expenditure from public funds for monetary offerings to these shrines violates Article 89 of the Constitution, which limits expenditure from public funds for monetary offerings to religious organizations.
In general, obituary gifts offered to bereaved families at funeral services are regarded as matters of social courtesy. On the other hand, monetary offerings given for ordinary religious ceremonies are considered as offerings to the religious organizations. Therefore, the expenditure from public funds for the monetary offerings mentioned above are meant for the use of the religious organizations. This violates Article 89, which prohibits the government from spending funds for the use of religious organizations, although judging from the item of the expenditure, the purpose, the manner, and the amount, this may be considered to be a matter of social courtesy.
According to the facts lawfully found by the High Court, appellee Nakagawa and the other appellees made monetary offerings (tamagushiryo, kentoryo, sonaemonoryo) from the prefecture's public funds for the Reitaisai, Mitamasai, and Ireitaisai, which are usual religious ceremonies held by Yasukuni Shrine and Gokoku Shrines within their precincts, the amount and the number of times being mentioned in part 1 of Section I of the majority opinion. The expenses were judged to be for the uses of Yasukuni Shrine and Gokoku Shrines. Thus, I decided that they violated Article 89 of the Constitution.
I would like to add two more things. First, the preceding Supreme Court judgment used the so-called "purpose-effect test," which is used for interpreting Article 20(3) for the purpose of interpreting Article 89, which prohibits any public financial aid to religious organizations. However, I, with Justice Ozaki, doubt the objectivity, correctness, and effectiveness of using the test, especially trying to use it in this case. Incidentally, there seems to be no need to use it to interpret Article 89 in this case.
Secondly, since the expenditure in this case apparently violated Article 89, I do not have to judge whether the expenditure violated Article 20(3) or not. I think it is desirable to avoid official judgments concerning religious problems as much as possible. "All the power of a statesman should not and can not relieve the soul." (John Locke, "The establishment of the modern tolerance and religious freedom.")
The opinion of Justice Hisako Takahashi concerning part 2 of Section I is as follows:

I agree with the conclusion of the majority opinion. However, I disagree with the reasoning of part 2 of Section I, so I would like to clarify my opinion about it.
1. Article 20(1) of the Constitution provides that freedom of religion is guaranteed to all and that no religious organization shall receive any privileges from the state, nor exercise any political authority; Article 20(2) provides that no person shall be compelled to take part in any religious act, celebration, rite, or practice; Article 20(3) provides that the state and its organs shall refrain from religious education or any other religious activity; and Article 89 provides that 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. Under the Meiji Constitution the guarantee of religious freedom was not enough. Close ties between the state and Shinto exerted a bad influence in many ways after the Meiji Restoration. Since State Shinto was virtually the national religion, people were compelled to fol low it, and other religious groups were subjected to severe persecution. Considering these historical facts, the state guaranteed unconditional religious freedom for all and established the principle of separation of state and religion to guarantee full religious freedom under the new Constitution.
Because unconditional religious freedom is one of the principal human rights for spiritual freedom, and because of those historical conditions mentioned above, the Constitution should be interpreted as providing not only unconditional religious freedom but also the state's religious neutrality, thus eliminating all ties between the state and religion and making the total separation of state and religion its ideal. The majority opinion agrees with this.
However, the majority opinion first says "the provision of the separation of state and religion is only an institutional and indirect guarantee of the freedom of religion. It does not guarantee freedom of religion directly, but it attempts to guarantee it indirectly by securing a system that separates state and religion." Then it says, "Moreover, the state unavoidably connects with religion when the state regulates social life or implements various policies to promote or subsidize education, social welfare, or culture. Thus, an actual system of government that attempts a total separation of state and religion is virtually almost impossible. Furthermore, to attempt total separation would inevitably lead to unreasonable situations in society." It goes on, "Thus, it follows that there are inevitable and natural limits to the separation of state and religion. So when the principle of separation of state and religion is actually established as a state system, a state must accept some degree of actual relationship with religion according to its own social and cultural characteristics. Therefore, under these premises, the remaining question must be to what extent such a relationship will be tolerated under the basic purpose of the principle of guaranteeing freedom of religion." And, "From this perspective, the principle of separation of state and religion, which is the basis of the constitutional provision and becomes the guiding principle for interpretation, demands the religious neutrality of the state but does not prohibit all connection with religion. Rather, taking the purposes and effects of the given conducts into consideration, it should be interpreted as prohibiting the state's conducts that are beyond the appropriate limits in light of the social and cultural circumstances in our country." The majority opinion says that the state must accept some degree of actual relationship with religion. So total separation is just an ideal, and the Constitution prohibits only such conduct that exceeds reasonable limits under social and cultural circumstances with reference to the conduct's purpose and effects.
Under this analysis, religious activity, which is prohibited in Article 20(3), is not interpreted as all the activities of the state and its organs connected with religion but rather as "activities exceeding such reasonable limits, the purpose of which have some religious meaning and the effect of which is to support, promote, or, adversely, oppose or interfere with religion." In determining whether a given religious activity constitutes proscribed religious activities or not, "not only the external aspects of the conduct but also the place of the conduct, the average person's religious understanding toward the conduct, the existence or extent of the actor's religious intention, purpose, or awareness in holding the ceremony, and the effect or influence on the average person should be considered as factors."
This analysis, the so-called "purpose-effect test," was developed in the Supreme Court Judgment decided on July 13, 1977 (hereinafter called the Jichinsai Judgment), and has significantly influenced later judgments involving religious problems. The majority opinion follows this test; however, I disagree with this test in some points.
2. First of all, the majority opinion states that "the total separation provided in the Constitution is an ideal and is virtually impossible. To attempt total separation would inevitably lead to anomalous situations." I do not think so. The examples that were enumerated as anomalous situations as a result of the total separation in the Jichinsai Judgment are financial assistance to private schools affiliated with religious organizations, subsidies to temples and shrines to maintain national cultural assets, such as buildings and sculptures, and religious activities in prisons. Under the equal treatment principle, these organizations in the examples should be treated equally with other organizations. If these organizations are not paid financial assistance or subsidies because of their religious nature, I think this discriminates against religious freedom. Thus, I do not think that these examples are anomalous situations resulting from total separation, and I do not hesitate to interpre t the separation of state and religion as total separation in spite of these examples.
I agree that total separation is sometimes impossible or improper. One of these situations is decorating a Christmas tree or New Year's pine decorations, which are regarded as secular customs by most people. I cannot assert that there are no other examples. However, Article 20(3), which prohibits all religious activities, should be interpreted as prohibiting every conduct having connection with religion. When the state is permitted to perform a religious activity, it is necessary for the state to explain why the conduct is permitted. The principle is that the state should not perform any religious activity. However, the majority opinion reverses the position of the principle and the exception, saying that the state must accept some degree of actual relationship with religion.
According to the bitter historical background after which Article 20(3) was enacted to provide total separation as an ideal, I think religious activities in the article should not be interpreted as limited religious activities by using the "purpose-effect test."
3. Secondly, I do not agree with the majority opinion in that it judges based on the way our society is, saying that the Constitution prohibits the "state's conducts which are beyond the appropriate limits in light of the social and cultural circumstances of our country," and "objective judgment based on socially accepted ideas is necessary." As mentioned above, everybody knows that State Shinto used to be virtually given the status of national religion and did much harm in our country, so it is understood that the Constitution guarantees the freedom of worship unconditionally, and to make surer the Constitution provides Article 20 with an ideal of total separation of state and religion. However, as religion essentially is individual belief, it is still difficult to say that State Shinto has been wiped out in our society. Furthermore, religions have been plural and multiple in our country, public concern about religion is not necessarily high, and public attitude is very toleran t of different religions. Believing in one religion does not mean eliminating others, which seems to have made it easy for State Shinto to become a test of daily life as a superreligious idea rather than just a religion and to do so much harm before World War II. Though tolerance of religious feeling is not bad in itself, it also has some danger that religion could easily control the public feeling. In this point of view, the principle of the separation of state and religion should be strictly observed and should not be judged based on the way the society is, such as "appropriate limits in the light of the social and cultural circumstances" or "objective judgment based on socially accepted ideas."
4. Thirdly, the so-called purpose-effect test is very vague and lacks clearness as a test. Though the majority opinion says, "Rather, taking the purposes and effects of the given conducts into consideration, it should be interpreted as prohibiting the state's conducts that are beyond the appropriate limits in light of the social and cultural circumstances of our country," it is not clear what the "social and cultural circumstances" are and what extent "appropriate limits" mean. On the factors that should be considered in deciding whether a conduct falls within the category of religious activity, the opinion says it should be interpreted that such a conduct as its purpose has "some religious meaning and the effect of which is to promote, or, adversely, oppose or to interfere with religion." It goes on, "In determining whether a given religious act constitutes a prohibited, religious activity" or not, not only the external aspects of the conduct but a lso the place of the conduct, the average person's religious understanding toward the conduct, the existence or extent of the actor's religious intention, purpose, or awareness in holding the ceremony, and the effect or influence on the average person should be considered as factors. And at that time, objective judgment based on socially accepted ideas is necessary." However, it is not clear what are estimated on these factors and how-in other words, the purpose-effect test is like a scale without graduation. So no small number of judgments based on this test after the Jichinsai Judgment have reached different conclusions in spite of getting the same facts established.
In an action for damages based on the State Damages Law, taken by a Christian wife cencerning the enshrining of her late husband, who was a member of the Self-Defense Forces, with his late colleagues in Gokoku Shrine in Yamaguchi Prefecture, the Supreme Court, Grand Bench Judgment, decided on June 1, 1988, quoted by the majority opinion, held that the involvement of officers of the Self-Defense Forces in the application of enshrining by the friendship society of the Self-Defense Forces did not fall into the category of religious activity noted in Article 20(3) of the Constitution, though the judgments of the first and second instances held that it does.
In the action in which the question of whether such conduct as buying alternative land for Chukonhi monument on public land, moving and reconstructing the monument on alternative land, and lending the land to the society of war relatives with no rent constituted a religious activity, the judgment in the first instance held that such conduct did constitute religious activity, but the judgment for the appeal reversed the conclusion, and the Supreme Court, Third Petty Bench Judgment, decided on February 16, 1993, supported the second judgment that held that such conduct did not constitute religious activity.
Also, in the case in question, the conclusion of the judgment of the first and second instances are opposite in spite of being based on the same purpose-effect test, and in this judgment, the majority opinion and the dissent opinion have reached quite opposite conclusions in spite of having taken account of the same facts and test, which makes me doubt whether the test shown by the Jichinsai Judgment could be a clear guideline.
From the above, the purpose-effect test is very vague as a test, and judging the connection between the state and religion by such a vague test and limiting the scope of the religious activity of Article 20(3) of the Constitution have probability of widening the permitted range of relation between state and religion while we do not notice that, furthermore, endangering the freedom of religion, which I fear.
5. I think that the principle of separation of state and religion declared in Article 20(3) means total separation, or the nonreligiousness of the state, so that the state shall not be intervened in by religion nor intervene in religion. In considering our history, in which the insufficient guarantee of the freedom of religion has caused much harm, it is needless to say that the principle of separation of state and religion should be strictly interpreted.
Therefore, I think the connection between state and religion is prohibited unless the reason why total separation is impossible or improper in each case. It is clear that any conduct offering public funds as tamagushiryo and kentoryo for the Reitaisai ceremony of Yasukuni Shrine and as kumotsuryo for the Ireitaisai ceremony of Gokoku Shrine does not fall into the exceptional category mentioned above. So I must say that these conducts are unconstitutional.
The opinion of Justice Yukinobu Ozaki concerning part 2 of Section I is as follows:

Though I agree with the conclusion of the majority opinion, I do not agree with part 2 of Section I. So I would like to clarify my opinion on it.

1. The motive and purpose of the article of separation of state and religion and the test of judging of constitutionality
As was held in the majority opinion and the Supreme Court, Grand Bench judgment, decided on July 13, 1977, quoted by the majority opinion, the Constitution should be interpreted as considering that several kinds of harm arose under the former constitution because of the insufficient guarantee of freedom of religion, providing the freedom unconditionally, establishing the principle of separation of state and religion to make it securer, and striving for a secular and religiously neutral state by taking as its ideal the total separation of state (including local government) and religion. The judgment of the Grand Bench, in addition to the above statement, held that connections with religion become unavoidable as the state implements various policies, so an actual system of government that attempts a total separation of state and religion is virtually impossible. Furthermore, it said, to attempt total separation would inevitably lead to anomalous situations. As an example, it pointed to financial assis tance for private schools affiliated to religious institutions, etc. Total separation that leads to denial of the right of equality or freedom of religion should be thought irrational, so it has good point to take care so that such constitutional value should be secured. Therefore, it is deliberate attitude for disposing complicated social matters to allow some limited exception of strict total separation and make some room to think flexibly. In this range, I can agree with what the Grand Bench judgment held. So interpreting the article of separation of state and religion from the point of view of the statement, I think that total separation should be the fundamental rule except for cases in which total separation is impossible and attempting total separation would inevitably lead to anomalous situations, and only in such exceptional cases, the connection of state and religion is constitutionally allowed.
From the above perspective, the wording of Article 20(3) of the Constitution, "shall refrain from any religious activity," should be interpreted to mean that the state's conduct with some connection with religion is prohibited as a principle, but only in cases when separation is impossible and attempting separation would inevitably lead to anomalous situations, the connection of state and religion is exceptionally allowed. Therefore, the state, when a conduct to implement its policy would have some connection with religion, should avoid performing the conduct because of the prohibition by the Constitution and consider whether there is any alternative without religiousness. If it is possible to implement the policy by any alternative, the state should not perform the conduct suspected of being a religious activity. However, when it is impossible to implement the policy by a way without religious nature, and abandoning the policy would cause an anomalous situation in social life, the sta te should consider what the purpose of the policy and the legal value or interest included in the policy are, whether the value is superior to the effect to freedom of religion by doing the conduct, how much the extent of the supremacy is, etc. On the other hand, it would be a case of a very anomalous situation when abandoning the policy causes a violation of other values, particularly constitutional values. The state should not involve doubtful conduct unless, on these considerations, a high legal value worthy of being especially permitted as an exception to the principle of separation of state and religion is clearly recognized. The interpreting as mentioned should suit the motive of the article of separation of state and religion in the Constitution best, follow the wording of the article, and be clear as a test to judge constitutionality. I think it is appropriate for the motive of the article to interpret as a conduct should be prohibited except for the cases in which there are clearly exceptional si tuations after the consideration mentioned above.
2. Questions to the majority opinion
The interpretation of articles declaring the separation of state and religion held by the majority opinion is not faithful to the above-described history of establishment, the rules' meaning, or wording. Its test to judge constitutionality is to consider various factors collectively, so that the test is vague and lacks objectivity and clarity. Consequently, it is not proper. I cannot therefore agree with the majority opinion for the following reason:
(1) While the majority opinion says that the Constitution takes as its ideal the total separation of state and religion, it says "there are inevitable and natural limits to the separation." According to this part of the ruling, it seems to say that it is a general rule that all religious activities are "prohibited" but there are exceptions when religious activities are "tolerated" because of special circumstances such as the impossibility of separation. However, the majority opinion subsequently says "the remaining question must be to what extent such a relationship will be tolerated under the basic purpose of guaranteeing freedom of religion" and all of a sudden restrictively defines a "prohibited" activity. If it starts discussion from the standpoint that the ideal is the total separation of state and religion and that connection between the state and religion is prohibited in principle, it should not discuss what activity is "tolerated" but what is "prohibited." I think that such a majority opinion is undesirable because it is not suitable for the meaning and purpose of the system of the separation of state and religion and dismisses the fact that the system demands maximum functionality as a means to ensure the freedom of religion.
(2) The principle of legal interpretation is to construe a text of the law according to ordinary meaning and usage and to search for the intention of the legislator on occasions that the text cannot be clarified. To read the text to prohibit "any religious activity" honestly, it is very clear to be construed that all activities that connect with religion are prohibited, and it is a matter of course to take up the position that a religious activity is "prohibited in principle but tolerated exceptionally." An opinion to regard a text without any restriction, as with natural restriction, cannot be adopted, saying that the question is in what occasion and to what extent religious activities will be prohibited, because it differs from the purport.
The idea that "religious activity" bears similar restriction seems to have been born in our country as well, following the fact that a case that adopted the purpose-and-effect test as to the similar clause of the Constitution of the United States (Amendment I), which influenced Article 20(3) of the Constitution, ruled that this clause prohibits activities that have certain purpose and effect. However, this idea neglects the difference between the clause of the U.S. Constitution and that of our country. The U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...," and prohibits only activities establishing national religion or prohibiting the free exercise of religion. So it is necessary to define the extent of prohibited activities. The case therefore set a test to determine prohibited activities. On the other hand, our Constitution directly prohibits all religious activities, so it is natural to set a test to prohibit every religious activity univocally and to tolerate special cases. According to the difference between the clauses of both constitutions, the different approach to set a test fits each constitutional text.
(3) The majority opinion is not adequate as a future guideline, because the meaning of terms is ambiguous and the scope of the test is not clear on construction of Article 20(3) of the Constitution.
The majority opinion says "religious activity" is not "all activities of the state and its organs" that connect with religion, but an activity whose connection with religion is, with reference to the purpose and effect of "the activity, which leads to connection," "beyond the appropriate limit" in the light of various factors, and an activity beyond the limit is "only the activities ... the purpose of which have some religious meaning and the effect of which is to support, promote, or, adversely, oppose or interfere with religion." In this definition, a "concerned activity" means an activity of "the state and its organ" which leads to church-state connection.
Discussing the connection between the state and religion, as stated above, there are the state's own connecting activity "which leads to religion-state connection" and an apparently religious activity which is the object of the State's own connecting activity, and it is examined what relationship there is between the two activities. These two sometimes overlap largely like the establishment of a national religion, sometimes overlap less, like the Tsu groundbreaking ceremony case, and sometimes overlap far less, like the offerings of tamagushiryo in the present case. In addition, although the city sponsored the ceremony in the Tsu groundbreaking ceremony case, it was a Shinto priest who performed the service as a peculiar religious ceremony, and the city connected with the ceremony to participate and utilize it, so the distinction between a connecting activity and an objective activity is clear.
Next, the majority opinion says that to discuss whether a "given activity" is a prohibited religious activity or not, factors such as the "place where a concerned activity takes place" should be taken into consideration without being swayed only by external form. An "given activity," as well as a "concerned activity," here means the state's activity by the above-mentioned definition. However, the Supreme Court, Grand Bench Judgment, decided on July 13, 1977, cited by the majority opinion, picked up as examples of external form a "concerned activity whether the presenter is a priest and whether the procedure is set by religion." It is inferred that the Grand Bench case used the term "concerned activity" as an object activity with which the state would connect such as a religious event other than a connecting activity of the state. Some people, however, take this term as an external form of the state's connecting activity, which suits t he definition, and the majority opinion makes the possibility of this interpretation higher, because the majority opinion has no example.
In addition, in the latter part, following a "concerned activity" is ambiguous and hard to determine the meaning. "The place where a concerned activity take place" in the majority opinion can be taken as the place of disbursement that leads the prefecture to connection with religion, because the question is Ehime Prefecture's disbursement as tamagushiryo etc., but as the preceding a "concerned activity" means a ceremony, it is natural that it means the place of the ritual event. Likewise, the "average person's reaction to the concerned activity" confuses people to determine whether the activity is a connecting activity, such as offerings of tamagushiryo, or an objective activity, such as a ritual event, or both. It is also unclear whether the object discussed over the "actor's religious intention, purpose, or awareness in holding the ceremony" is (the actor of) the connecting activity or (the actor of) the objective activity or both. In the Tsu ceremony case, the court first said that the average person did not regard the groundbreaking ceremony as a religious activity but as a secular event, that is a secular activity, a customary community ritual, and then said that the mayor of Tsu City had the same awareness, so the main object of discussion seems to be the objective activity. A "concerned activity" and a "concerned actor," on the other hand, seems to be regarded generally as a connecting activity and an actor of it by the High Court that judged this case, because the High Court discussed that the purpose of the prefecture's activity was condolences for the war dead, that it formed a part of bereaved families support administration. and that the amount was small enough to be a courtesy. In the end, the same term, that is "concerned activity" or "concerned actor," was used as an objective activity in the above-mentioned Ground Bench case and as a connecting activity in the High Court of this case, and thi s shows that this term cannot necessarily be interpreted univocally. It is also unclear whether the object discussed over the concerned activity's effect and influence on the average person is only an activity of the state or includes a ritual event, etc., and the latter does not seem to be excluded judging from the nature of the matter. The majority opinion, in short, has parts of which the meaning is hard to determine, for which it is difficult to grasp the intention, and which could result in misleading application. This ambiguity is not permissible for a test to determine constitutionality.
(4) According to part 1 of my opinion, all apparently religious activities of the state are first regarded as prohibited, and an activity is tolerated only after the reason why the activity should be an exception is shown, so both activities and factors to discuss will be selected and limited. In short, my opinion makes it easier to set an objective test and to apply it.
On the other hand, the majority opinion starts with the idea that a "religious activity" has a limited meaning by nature. All religious activities are determined whether they are prohibited religious activities only after considering all the factors like the above-mentioned examples collectively. There will be a great number of objects to discuss, and factors to discuss will be comprehensive, and the test will depend on collective thinking, which is an ambiguous test, so there will be much anxiety about objectivity and clarity. A test that shows only items of factors to consider is not effective, so it must show how to evaluate each factor and how significant each factor is. In fact, in precedent cases, although the same activity was evaluated with the same purpose-effect test, opposite conclusions were reached, which shows that this test lacks clarity and its application is difficult.
I think the new test mentioned in part 1 of my opinion should be applied instead of the purpose-effect test so as to prevent future confusion.
3. Conclusion

(1) In this case, it should be discussed from the test mentioned in part 1 of my opinion whether there was a way to realize the intention to console the war dead without connection with religion other than offerings of tamagushiryo on the occasion of ritual events of Yasukuni Shrine, etc. No argument or proof of such is made, and everyone knows that there are many nonreligious ways of condolence. Therefore, the prefecture's activity in this case is not therefore a case where separation between the activity and religion is practically impossible. Refraining from the activity of the prefecture would not result in irrational social results, since the prefecture's intention is realizable without any connection with religion. So from this viewpoint as well, there are no special circumstances to deny a violation of the separation of state and religion. In fact, no particular irrationality is recognized, although other local governors do not offer tamagushiryo, etc., as in this case, so it is converse t o neglect the Constitution's worth of importance because of excess of esteem of social courtesy like this. The offerings of tamagushiryo in this case consequently violate Article 20(3) of the Constitution, and the expenditure in question is illegal.
(2) However, this offering of tamagushiryo etc., it is argued, is of no importance as a promotion of a particular religion, because the sum is small and infrequent. And it is said that no one expects any reconstruction of State Shinto in today's social circumstance, unlike in the early Showa era (from 1925), so such worries are unnecessary.
Looking back on our history, however, we can easily see examples of how dangerous it is to think like that. Although people enjoyed most expanded freedom at the end of the Taisho era (up to 1925), the circumstance were completely changed in obedience to the state's intention in only a few years, and the freedom of life and body was deprived, as well as the freedom of thought, speech, and press, not to mention the freedom of religion. It was only recently that we ourselves experienced the maxim "today's dripping rivulet makes a ranging torrent." Taking into consideration the fact that the sudden change of circumstances took not more than 10 years, I believe that today these issues should not be left alone as trivial matters and that they should be prohibited in the beginning, regardless of frequency or sum of money, so as to prevent any escalation of the situation.
It is likewise argued that people are tolerant toward others' religious feelings because of the religious coexistence and stratification in Japan, so issues like this case are accepted tolerantly, and it is unnecessary to rebuke these issues as unconstitutional on the grounds of religious coexistence and stratification in Japan. However, people are often not only tolerant but also indifferent to religion because of this religious coexistence, etc., and there is the negative effect that they do not feel the religious uncomfortableness of others and hurt the religious feelings of others. Freedom of religion is essentially significant to guarantee minorities, so it is not tolerated to leave activities showing an inclination toward a particular religion, neglecting the minority's repulsion merely because the majority is indifferent. In addition, it is a historical lesson that there is a danger of an apparently trivial situation in the beginning becoming an accomplished fact and accumulating to be ir reparable. As regards the essence of the matter, it should not be neglected to adhere to the principle regardless of the significance of the situation.
Considering these points, remembering the historical background that the Constitution pursued the system prescribed in its clause, and reflecting the sense of the people, including legislators, who as a matter of course accepted the system without any objection, I believe that the state should behave to realize to the maximum the meaning and purpose of the system prescribed in the Constitution and that the Constitution should be interpreted as demanding and promoting the maximum realization, so I state the foregoing opinion.
The dissent opinion of Justice Toru Miyoshi concerning part 1 is as follows:

I conclude that the expenditure in question is not a religious activity prohibited by Article 20(3) of the Constitution, it is not an expense of public money prohibited by Article 89 of the Constitution, and it does not violate the latter part of Article 20(1) of the Constitution, which prohibits the state from giving privilege to any religious organization. Therefore, the claim should be dismissed. The conclusion of the judgment of the High Court, which dismissed the claim, was correct, and the jokoku appeal should be dismissed. The reason is as follows:
1. The constitutional principle of separation of state and religion, and religious activity and expense of public money prohibited by the Constitution Concerning this issue, my opinion is the same as the opinion that was delivered in the precedent Supreme Court judgments cited by the majority opinion ,Supreme Court, Grand Bench, case (Gyo Tsu) No. 69, 1971, decided on July 13, 1977, Minshu 31-4, p. 533, Supreme Court, Grand Bench, case (Gyo Tsu) No. 902, 1982, decided on June 1, 1988, Minshu 42-5, p. 277).
The main point of my opinion is as follows:

In a real national government system, it is virtually impossible that we can accomplish the total separation of state and religion. To attempt this principle leads to unreasonable situations in various respects in our society. Judging from these points, the separation of state and religion guaranteed by the principle of separation of state and religion has reasonable limits. We should assume that the principle of separation of state and religion that is adopted by the real nation differs in response to various historical and social conditions.
The question is the extent to which the relationship between state and church will be tolerated concerning the fundamental purpose of guaranteeing the freedom of religion. Therefore, though the principle of separation of state and religion in the Constitution, which is the foundation of the articles stipulating the principle and is a guideline to these articles, requires that the state remains neutral in respect to religion, it does not prohibit all connection with religion. Rather, it should be interpreted as prohibiting conduct that exceeds the proper limit with reference to the conduct's purpose and effect in consideration of our social and cultural conditions.
In view of the meaning of the principle, religious activity stipulated in Article 20(3) of the Constitution does not mean all the state's activities that have contact with religion, but rather those which exceed reasonable limits and which have as their purpose some religious meanings or the effect of which is to promote, subsidize, or, conversely, interfere with or oppose religion. If we determine whether an activity is the religious activity mentioned above, to reach an objective judgment based on socially accepted ideas, we must consider the average person's reaction to it, the actor's purpose, the existence and extent of religious significance, the effect on the average person, and all other circumstances without being obsessed with its appearance.
We should adopt this test to determine whether the expense is prohibited in Article 89 of the Constitution as an expense to a religious organization or association. To evaluate this expenditure, we should consider whether it exceeds the reasonable limit with reference to the conduct's purpose and effect in consideration of our social and cultural conditions and should not be obsessed with its mere appearance.
2. The national sentiment of Yasukuni Shrine and Gokoku Shrines in several prefectures (In my opinion, Gokoku Shrine means not only religious corporation Gokoku Shrine in Ehime Prefecture but also any other Gokoku Shrine in other prefectures.)

(1) To honor the memory of those who died in the war to protect our country, their parents, wives and children, and other people is a matter of course for not only bereaved families and fellow soldiers but also the people in general. Such behavior signifies praying for peace and consoling bereaved families who lost their spouses and relatives, and it is natural behavior of people regardless of their religion, religious sect, race, and nationality. It is not only consistent with the natural sentiment and bereaved families' feelings but also is considered courteous that the national or municipal governments or their representatives honor the war dead, and they have an obligation to do so from the moral point of view. In other countries, there are many examples of ceremonies to honor the war dead conducted publicly by the state regardless of its differemce in the law or the relationship with religion. For instance, some national or municipal governments hold the ceremony to do so, and the representat ives of the state or other public figures attend the ceremony held by a private body publicly. In our nation, these circumstances are the same. Moreover, we should honor them whether the policy adopted by the national government when they were killed was right or not, or reasonable or not, because to do so is natural behavior.
My opinion mentioned above is almost the same as that mentioned in the report on August 9, 1985, published by the conference concerning cabinet members' visits to Yasukuni Shrine.

Generally, though the souls that we console when honor the war dead cannot remain separate from religious belief, we should note that we must not violate Article 20(3) or other articles of the Constitution by exceeding reasonable limits of a reasonable relationship with a specific religion.
(2) Yasukuni Shrine enshrines 2.46 million war dead killed mainly for Japan. Gokoku Shrines in several prefectures enshrine the war dead who have some relationship with those prefectures. These shrines are nothing but religious institutions. Although some of those who visit Yasukuni Shrine-for example, fellow soldiers and bereaved families-believe in Saishin God, more generally they think that they visit Yasukuni Shrine rather to remember and honor the war dead, including their fathers, sons, brothers, friends, and acquaintances, than to act religiously. To put it simply, they visit the war dead and console them.
From this point of view, Yasukuni Shrine and other Gokoku Shrines are nothing but Shinto institutions, and it is needless to say that they treat visitors as those who act based on religious belief. However, in light of the national sentiment mentioned above, they are principally special institutions to remember and honor the war dead, and the majority of people consider these shrines as rather symbolic institutions for the nation's war deads' souls than those of a specific religion. It is possible to say that they think of these institutions as poles, monuments, or plates symbolizing the souls of the war dead.

The report mentioned above points out that Yasukuni Shrine has been regarded as a main institution to honor the war dead by people or relatives of the war dead since World War II because of its history and scale.
Additionally, from the practical point of view, it is possible to say that, if we went to honor the war dead, we cannot find any other institutions that symbolize all of the souls of them than Yasukuni Shrine or any other institutions that symbolize all of the souls of the war dead who have some relationship with specific prefectures than the Gokoku Shrine in that prefecture. Of course, we should not neglect to honor the war dead in Chidorigafuchi war dead graveyard. However, this is the place where the remains of the unknown war dead and the war dead whose families were unknown are enshrined, it is not a place for all of the war dead, including those of the Sino-Japanese War and Russian-Japanese War. Some people propose that a new public nonreligious institution for the war dead should be built. This might be a point worth considering, but the national sentiment and the feelings of bereaved families are not reasonable. Even if such an institution is built. I do not think that their feelings that Yasukuni Shrine and Gokoku Shrines are the central institutions to honor the war dead will change dramatically.
(3) Many people demand that representatives of the national or municipal governments honor the war dead at Yasukuni Shrine and Gokoku Shrines, and many city and prefectural assemblies resolved what is called official visit plans, because the majority of the people think that these shrines are the principal institutions to honor the war dead. From these considerations, many cabinet members have visited Yasukuni Shrine on spring and autumn Reitaisai or on the memorial day of the end of World War II since October 18, 1951, the day of the first autumn Reitaisai after World War II, when Japan was still under occupation, and it was exceptional that the prime minister did not visit Yasukuni Shrine till a certain time. Most of them professed that their visit to Yasukuni Shrine was what is called an official visit; it is said that some of the ministers who visited Yasukuni Shrine were Christians. The report mentioned above proposed that "to answer the sentiment or feelings of most people and the relati ves of the war dead, the national government should study a way for official visits to Yasukuni Shrine by cabinet members in a manner that does not violate the principle of separation of state and religion in the Constitution and is supported and accepted by the majority of the people."
(4) In judging whether the expense is unconstitutional or not, we must take these circumstances, as social and cultural conditions, including the national sentiment about Yasukuni Shrine and Gokoku Shrine, into consideration fully.
3. The facts of payments in this case and examination of them

(1) Offerings to Yasukuni Shrine

The offerings to Yasukuni Shrine were made from 1981 to 1986, nine times as tamagushiryo on Reitaisai in spring and autumn, 5,000 yen each time, and four times as kentoryo on Mitamasai in July, between 7,000 and 8,000 yen each time. The total amount was 76,000 yen.
Though the offerings were made on Reitaisai in spring and fall and Mitamasai every year from around 1958, we should note the following points.

(a) It is discussed that the offerings were made on the occasion of annual religious ceremonies at Yasukuni Shrine. However, the dates of the present Reitaisai in spring and autumn were fixed by converting from the Vernal Equinox Day and the Autumnal Equinox Day in the lunar calendar to these days in the solar calendar when the principle of separation of state and religion was enforced after the war. Both of these two days are the mid-days of Higan, or equinox week, when people visit their ancestors' graves. The Mitamasai was also established after the war, in associated with the Bon days, when we worship, console, and hold memorial services for our ancestors' souls. (This is a folk custom, and it is not said to have any origin in Buddhism.). On Mitamasai, in the precincts of Yasukuni Shrine, more than 20,000 of lanterns paid for by kentoryo are hung up, matching the custom by which people hang up lanterns to welcome their ancestors' souls, which come back to their descendants on Bon days. That i s, these festival days are not fixed on days that are connected with deified gods but on days when many Japanese hold memorial services for their ancestors. So these days are also appropriate to mourn the war dead, leaving any particular religion out of account.
It is true that both the Reitaisai and Mitamasai have important religious meaning as annual ceremonies from the viewpoint of Yasukuni Shrine, and their external aspects of conduct are major religious rites. However, as I mentioned in paragraph 2, many Japanese regard Yasukuni Shrine as the central institution for mourning the war dead, and as for Mitamasai and Reitaisai, which are held on days connected with memorial service days for ancestors, many people or the bereaved regard them as events to mourn and honor the war dead. It is not altogether general to regard them as religious rites to worship deified gods. In determining whether a certain religious activity violates Article 20(3) of the Constitution or a certain disbursement of public funds violates Article 89 of it, we should consider how a lot of Japanese people regard it. We should not put ourselves in the position of Yasukuni Shrine. This is the two-sidedness of religious rites. A religious rite that is considered as a folk custom, such as the jichinsai or groundbreaking ceremony, also has a two-sidedness. That is, the jichinsai is, from the viewpoint of the Shinto priest, a solemn rite to which the Ootokonushi god and Ubusuna god are invited in the ceremony, and the form of the ceremony is nothing but a religious rite. But people at large, including the orderer of the construction and other attendants, regard it as just a folk custom.
(b) These offerings were made, under the guidance of Yasukuni Shrine, by appellee Nakagawa, who was head of the Tokyo Office of Ehime prefectural government, and authorized by appellee Shiraishi, who was governor of Ehime Prefecture. Nakagawa brought offerings in ordinary envelopes to the office of Yasukuni Shrine, saying that he had brought it as tamagushiryo or kentoryo, and he gave them to Yasukuni Shrine. On the occasion of offerings on Reitaisai or Mitamasai, the governor himself did not visit Yasukuni Shrine, nor did local officials, including the head of the Tokyo Office as a proxy for the governor. Nakagawa made offerings by putting money into ordinary envelopes, without any description of tamagushiryo or kentoryo. The way of offerings was very businesslike.
On Reitaisai he made offerings, saying that they were tamagushiryo, but tamagushiryo is a title when people give money on the occasion of Shinto rites. For example, it is well-known that people often write the title "tamagushiryo" on the front of an envelope for an offering. There is no example of a local official making an actual offering to the gods in this Reitaisai. So I do not think that the title of tamagushiryo always has a religious intention or purpose of the offerer or that people at large always regard it as an offering with a religious meaning. In passing, on the jichinsai held at the municipal gymnasium of the City of Tsu, which was decided as a folk custom, not as a religious activity as proscribed in Article 20(3) of the Constitution as held by the Supreme Court, Grand Bench Judgment, decided on July 13, 1977, actual offerings to the gods were made by the mayor of Tsu City, the chairman of the city assembly, and so on, as Shinto rituals. Furthermore, on a Shinto memori al service in front of a monument to the war dead, attending which was not a religious activity as held by Supreme Court, the Third Petty Bench Judgment, case (Gyo Tsu) No. 148, 1987, decided on February 16, 1993, Minshu 47-3, p. 1687, actual offerings for gods were made by attendants, including the mayor.
On Mitamasai he gave offerings, saying that they were kentoryo, but, as I mentioned before, because hanging up lanterns in the precincts has come from our custom that people hung up lanterns to welcome their ancestors at Bon, and many Japanese regard Yasukuni Shrine as the main place for mourning the war dead, we can understand that many Japanese feel that the lanterns are hung up to mourn the war dead, not for a religious rite. I did not think we can understand kentoryo to have a religious intention or purpose, and I also do not think people at large regard it as having a religious meaning.
(c) It is clear that the total amount of the offerings was at the lowest level among ordinary offerings made in the name of a prefecture or its governor on ceremonial occasions as a social courtesy, and it was very small considering the scale of Ehime Prefecture and its budget. It also is very small from the viewpoint of Yasukuni Shrine. Judging from the amount of the offerings, the connection with religion was at a minimum level. Although some may think that we cannot deem the offerings were within the scope of social courtesy because they were made continually on Reitaisai and Mitamasai every year, we should think that if each amount of offerings on Reitaisai or Mitamasai is within the boundary of social courtesy to mourn the war dead, continual offerings should be regarded as a warm courtesy, like mourning a dead person on an anniversary of his or her death every year. Thus, we cannot deem that offerings are beyond the boundary of social courtesy because they are made continually.
Incidentally, based on the report on Yasukuni Shrine, the prime minister stepped into the main shrine of Yasukuni Shrine and worshipped officially in 1985, offering a bunch of flowers with the name of "Prime Minister So-and-So" on the memorial day of the end of the war. The amount of the disbursement for the price, which was paid from public funds, was 30,000 yen. This is, of course, within the boundary of social courtesy as disbursement from the head of a nation to mourn the war dead. In comparison with this, it is clear that the offerings made by Nakagawa did not exceed the boundary of social courtesy.
According to judicial precedents, as for reception expenses of local governments, a considerable amount of disbursement was deemed not to exceed the boundary of social courtesy. For example, in the case that a town in Nara Prefecture paid about 3,260,000 yen (0.16 percent of the annual expenditure of the town at that time) from public funds to hold a celebration when a person from the town was appointed as a minister, the Supreme Court decided that it was not beyond the boundary of social courtesy. (See Supreme Court, Third Petty Bench Judgment, case (Gyo Tsu) No. 121, 1986, decided on July 4, 1989, Hanrei Jiho No. 1356, p. 78.) There is no denying that it is ill-balanced to criticize a small disbursement strictly only when the connection with religion on the occasion of mourning the war dead is discussed.
(2) The offerings to religious corporation Gokoku Shrine in Ehime Prefecture

The offerings to Ehime Gokoku Shrine were made nine times, in the name of kumotsuryo, at the grand memorial service in spring and autumn from 1981 to 1986. The total amount was 90,000 yen.
Although each offering was made at a grand memorial service in spring or autumn, which is an annual religious ceremony, and the offerings had been made every year since around 1958, we should take the following points into consideration.

(a) It is discussed that each offering was made at an annual grand memorial service at Ehime Gokoku Shrine. It is true that the grand service in spring or autumn has an important religious meaning from the viewpoint of Ehime Gokoku Shrine, and its external aspect of conduct is a major religious rite. However, as I mentioned in Section 2, many Japanese regard Ehime Gokoku Shrine as a main place for mourning the war dead. And as for this event being called a grand memorial service, as I mention later, many Japanese or the bereaved, including the Ehime Prefecture Association for the Bereaved Families of the War Dead, which is deeply concerned with this event, regard it as an event to think of and mourn the war dead. It is not altogether general to regard it as a religious rite to worship deified gods. Like the Reitaisai and Mitamasai at Yasukuni Shrine, as I mentioned before, we should understand this as the two-sidedness of a religious rite. And in determining whether a certain religious activity violates Article 20(3) of the Constitution or a certain disbursement of public funds violates Article 89 of it, we should consider how a lot of Japanese regard it. We should not put ourselves in the position of Ehime Gokoku Shrine.
(b) Each offering was made as follows. Receiving a letter informing about the grand memorial service in the name of Ehime Prefecture Association for the Bereaved Families of the War Dead, Ehime Prefecture took the necessary procedure to disburse 10,000 yen as an offering to the service. Putting 10,000 yen into an envelope for presenting money with "Kumotsuryo, Ehime Prefecture" written on the front of it, the head of the Bereaved Families Support Section, Old People's Welfare Department of the Ehime prefectural government, took it to the office of the Ehime Prefecture Association for the Bereaved Families of the War, in a usual case. Receiving it, the association put the money into a different envelope with "Kumotsuryo, Haruki Shiraishi, Head of the Ehime Prefecture Association for the Bereaved Families of the War Dead" written on the front of it, and gave it to Ehime Gokoku Shrine.
Thus, because the offerings from Ehime Prefecture were directly made to the Ehime Prefecture Association for the Bereaved Families of the War Dead, and the association put it into another envelope and gave it to Ehime Gokoku Shrine, it is quite doubtful if we can understand that the offerings were made from Ehime Prefecture to Ehime Gokoku Shrine. Rather, we can say that it was the Ehime Prefecture Association for the Bereaved Families of the War Dead that made the offerings and that Ehime Prefecture made offerings to the Ehime Prefecture Association for the Bereaved Families of the War Dead as assistance to support bereaved families. Needless to say, the Ehime Prefecture Association for the Bereaved Families of the War Dead is not a religious organization or group. Even though we can understand that the offerings were made from Ehime Prefecture to Ehime Gokoku Shrine, they were merely indirect.
The title on the front of the envelopes were kumotsuryo, but kumotsuryo is one title when we present money at rites, not only Shinto rites but also Buddhist rites, and it is well-known that when a funeral service is held in a Shinto rite, we sometimes write shinsenryo (Shinsen means food and sake offered to the gods) on the front of the special envelope for presenting money at a funeral service. Therefore, I do not think that we can understand the title of kumotsuryo as having a religious intention or purpose of the offerer, and I do not think that people at large regard it as having a religious meaning.
(c) It is clear that the total amount of the offerings was at the lowest level among ordinary offerings made in the name of a prefecture or its governor on a ceremonial association as a social courtesy, and it was very small considering the scale of Ehime Prefecture and its budget. So, as I mentioned about offerings to Yasukuni Shrine, from the viewpoint of the amount of the offerings, the connection with religion was at the minimum level. Although some may think that we cannot deem that the offerings were within the boundary of social courtesy because they were made continually at the grand memorial services in spring and autumn every year, as I mentioned about the offerings to Yasukuni Shrine, we should think that if each amount of offerings is within the boundary of social courtesy to mourn the war dead, then continual offerings should be regarded as a warm courtesy. We cannot deem that the offerings are beyond the boundary of social courtesy because they are made continually.
4. Evaluation of the expenses

As I already mentioned in Section 2, it is quite natural for people to mourn the war dead; it is quite polite, even obligatory in terms of morality, for the state, the local government, or a representative to do so, Yasukuni Shrine and Gokoku Shrine have been considered as the main facilities for the mourning of the war dead, as well as the symbol of their holy spirits. As a matter of fact, there does not exist any other facility like these two shrines. And as I already mentioned in Section 3, the expenses for Yasukuni Shrine and Ehime Gokoku Shrine were done, in the perspective of these two shrines, concerning a periodical ritual that is essential not only religiously but also apparently, but also, in the perspective of most people and the war bereaved, they were done merely concerning the ceremony for the remembrance and mourning of the war dead. The expense for Yasukuni Shrine was done in a very businesslike manner: That for Ehime Gokoku Shrine can be considered as a donation to the Ehime Prefect ure Association for Bereaved Families of the War Dead, forming a part of the aid for the war bereaved. So it is very questionable to conclude that the expenses were for Ehime Gokoku Shrine. Even if we can conclude so, the expenses are indirect. We cannot necessarily see any religious intent or purpose even though the offerings were called tamagushiryo or kentoryo and the title on the envelope was kumotsuryo. We cannot necessarily say ordinary people are conscious of this expense as religious. The amount of the expenses, which are offered in the name of the local government or its governor, are minimum as a courtesy for these kind of ceremonies, so it has minimum to do with religion. And we cannot consider that even the series of expenses for each year goes beyond the range of courtesy, either.
Additionally, in Japan not a few families have both a household Shinto altar and a Buddhist altar in their homes, and there are many houses displaying seals of other gods. In some cases their boys and girls go to mission schools. Moreover, we can see that the same memorial ceremony is held in Shinto or Buddhist manner alternately every other year by the same war bereaved association, as seen in the case of the Supreme Court, Third Petty Bench, decided on February 16, 1993. These factors mean that in Japan several different religions coexist in harmony in the daily lives of most people, as well as in their senses. This coexistence is affirmative and comfortable. Generally speaking, in our society we are magnanimous toward religious differences, because we do not have special feelings toward any specific religion. This situation should not be criticized but rather valued, and at least should not be called a "confusion of religions", which is considered a shame. Taking these circumsta nces into consideration, I think that those who deeply believe in a specific religion are also required to be magnanimous to some extent on this kind of matter.
When we take all of these circumstances into consideration, I believe that the expenses were made as a part of the war bereaved aid activity. We should understand that the intent or purpose of the expenses was to console the war bereaved, as well as to remember and mourn the war dead. Most people understand so. Thinking of the expenses' effect or influence on ordinary people, we can see the positive effect and influence to mourn the war dead, to console the war bereaved, and to pray for world peace. On the other hand, we never see the effect or influence of aiding encouraging, or promoting any specific religion, nor the effect or influence of oppressing or intervening in any one. The relationship between Ehime Prefecture and Yasukuni Shrine or Ehime Gokoku Shrine brought about by the expenses is not beyond the admissible extent under our social and cultural circumstances. The expenses come under neither the religious activity prohibited in Article 20(3) nor the illegal expenses of public mone y prohibited in Article 89. They do not violate Article 20(1), either.
5. Additional statements

(1) I have fully stated that the expenses do not violate the Constitution. However, I have to admit that there is still something on my mind. As I have stated previously in Section 2, it is not only polite but also morally obligatory for a civil servant to do the best for mourning and consoling the war dead as far as it does not have too much to do with any particular religion. On the other hand, when it has something to do with any one, the expenses must be limited within the permissible amount, as small as those of this case. If so, I would say I would feel more comfortable if these expenses were made personally, because it would be more sincere and more appropriate for mourning and consoling. Nevertheless, this does not affect the question of whether the expenses are unconstitutional or not, because it is not questioned here whether the expenses are admissible or not as a matter of emotion.
(2) Concerning the relationship between Yasukuni Shrine or Gokoku Shrine and the national or local governments, some people are worried about a revival of State Shinto or militarism. I can understand these people's feelings, because we had the experience of being forced to believe in State Shinto before and during World War II. However, by the order of the chief commander of the United Nations. December 15, 1945, Shinto was declared to be established on precisely the same legal fundamentals as any other religion, and some concrete means were announced to separate every religion, including Shinto, from the nation. Furthermore, the new Constitution, which has an article on the separation of the government and any religion, went into effect on March 3, 1947. After World War II, Yasukuni Shrine and Gokoku Shrine have been religious corporations, like any other. They are now different from those of the prewar period. Under the new Constitution, it cannot happen that we see State Shinto revive. Our C onstitution, which has pacifism as a main principle, can fully prevent militarism from reviving. Article 2 of the private rules of Yasukuni Shrine declares that its main purpose is to establish everlasting peace and contribute to realize a peaceful nation. I cannot help feeling that to fear the revival of State Shinto or militarism in terms of the connection between Yasukuni Shrine or Gokoku Shrine and the government is too hasty and suspicious about the common sense of the Japanese people. We have to trust the Japanese people's common sense, which has been established for a long time after the war.
(3) Other people point out that 14 A-class war criminals are enshrined in Yasukuni Shrine. I am not going to refer to the Tokyo war criminal court, because it does not have anything directly to do with this case. However, the fact that A-class war criminals are enshrined there does not have anything to do with the mourning and consoling for almost two and a half million war dead, nor does it have anything to do with the question of whether expenses are beyond an admissible extent or not. I here quote a report from Yasukuni matter council board, which says that now Yasukuni Shrine can decide who is to be enshrined, and euen if there is something controversial in its decision, we should not make little of the mourning for those who devoted their lives for the nation, the society, and the people.
(4) I do not think I have to emphasize that this is naturally a domestic matter. But as the same time I believe we have to keep making efforts to encourage related foreign countries' understanding.
The dissent opinion of Justice Tsuneo Kabe concerning Section 1 is as follows:

1. The judgment of the first instant court (March 17, 1989, Matsuyama District Court) ruled that the activity of appellee Haruki Shiraishi, a one-time governor of Ehime Prefecture, was unconstitutional, taking Tsu Jichinsai Grand Bench Judgment (July 13, 1977, Supreme Court) as a precedent. The judgment of the appellant court (May 12, 1993, Takamatsu High Court) ruled that the activity of the appellee was constitutional, taking the same Grand Bench Judgment into consideration. The majority opinion in this present case also ruled that the activity was unconstitutional, taking the same Grand Bench Judgment into consideration. Since I think the conclusion of constitutionality would be naturally reached when we examine the test established by Tsu Jichinsai judgment and consider the four factors enumerated by this judgment, I would like to express my opinion compared with the majority opinion.
2. Ehime Prefecture made offerings from 1981 to 1986 when appellee Shiraishi was governor of the prefecture: 5,000 yen as tamagushiryo for Yasukuni Shrine's spring and autumn Reitaisai ceremony, 7,000 yen or 8,000 yen as kentoryo for Yasukuni Shrine's Mitamasai ceremony, and 10,000 yen as kumotsuryo for Ehime Gokoku Shrine's spring and autumn Ireitaisai ceremony, which was offered through Ehime Prefecture Association for the Bereaved Families of the War Dead. The issue of this case is whether these offerings violate Article 20(3) and Article 89 of the Constitution. The majority opinion explains the constitutionality of these expenses shown as below, writing under the headline of "the principle of separation of state and religion and the state acts prohibited under Article 20(3) and Article 89 of the Constitution."
(1) First, the majority opinion says that the principle of separation of state and religion is an institutional and indirect guarantee of religious freedom, that it is virtually impossible for an actual system of government to realize the perfect separation of state and religion, and that it would be in conflict with many aspects of society if the separation of state and religion were completely done.
(2) Then the majority opinion continues, saying that there are limits to the separation of the state and religion, and the connection between nation and religion would be unavoidable with reference to the social and cultural conditions of each state, when the separation of state and religion is realized as a national system, so we should discuss that connection considering the fundamental purpose of the system-to ensure the freedom of religion.
(3) Finally, from these viewpoints, the majority opinion concludes that the separation of state and religion requires the religious neutrality of the nation, but it would not prohibit all connection between the nation and religion, and that it would not admit the connection when the activity exceeds reasonable limits decided by social and cultural factors considering the purpose and effect of that activity.
3. The statement that the separation of state and religion would not admit the connection when the activity exceeds "the appropriate limits in light of the social and cultural circumstances in our country" only means that it would be illegal when the activity exceeds the limits. We can interpret this in a variety of ways, and it would be criticized that the meaning is unclear as a test of constitutionality. However, the majority opinion writes as follows:
"Religious activity in Article 20(3) should not be interpreted as prohibiting all religious activities that the state or state authority might be involved in. Rather, only the activities exceeding such reasonable limits, the purpose of which have some religious meaning and the effect of which is to support, promote, or, adversely, oppose or interfere with religion, should be prohibited."
This is the so-called "purpose-effect" test, and we can rate this test as supplementing the unclear "the activity exceeds the reasonable limits" criteria in order to determine the constitutionality.

However, the test should be more concrete in order to reach the suitable conclusion for a social conflict emerging as concrete constitutional litigation. The majority opinion shows four factors: (1) the place where the activity is done, (2) the religious evaluation of the activity by the ordinary person, (3) the intention, purpose, and religious aim of the person who does the activity, and (4) the effect or influence of the activity. Then it states that we should judge objectively from social common sense, considering these four factors and being free from the appearance of the activity when we determine that the activity constitutes a religious activity as described in Article 20(3).
The above is the majority opinion, and it is obvious that the majority opinion follows the Tsu Jichinsai Judgment. So I will explain why I do not agree with the majority opinion, comparing the issue with the judgment in the Tsu jichinsai case.
4. The "purpose-effect" test established by the Tsu Jichinsai Judgment is that the activity is unconstitutional as a religious activity prohibited by Article 20(3) when (1) the purpose of the activity has a religious meaning and (2) its effect is to promote, subsidize, or conversely, to interfere with or oppose a religion. (Both conditions should be fulfilled.) We can point out the difference of the purpose-effect test from the Lemon Test of the United States, which judges the activity unconstitutional when only one of the following factors does not exist: (a) the purpose is secular, (b) the main effect is not to advance the religion, and (c) there is no excessive entanglement between state and religion.

In order to judge whether these expenses paid by Ehime Prefecture satisfied the two factors of the "purpose (that has a religious meaning or not) and effect (that will promote, subsidize, or, conversely, interfere with or oppose religion) test, considering four factors in light of social common sense, we should scan the facts of the Tsu jichinsai case and compare them with those of these expenses.
The facts of the Tsu jichinsai case are as follows:

When the gym of Tsu City was to be built, a jichinsai or groundbreaking ceremony was held by Tsu City. City officers were in charge of the ceremony, and it was actually performed by four professional Shinto priests in religious robes and followed the specific Shinto rituals in a particular place for the ceremony and used particular ceremonial equipment. Those four priests would have had religious beliefs. Tsu City paid the expenses, including payment to the Shinto priests who conducted the groundbreaking ceremony and offerings. The issue of this case was the constitutionality of these expenses paid by Tsu City.
The Grand Bench judgment stated that we had to judge objectively from the point of view of social common sense considering the aforesaid four and other factors, not being bound by the appearance of the activity, such as the fact that the performers of the activity were priests or the manner was distinctively religious ritual, when we determine whether the activity constituted a religious activity under Article 20(3) of the Constitution.
The issue of the case as a taxpayers' suit was the propriety of the expense paid for the groundbreaking ceremony, but the issue of applying the "religious activity" of Article 20(3) of the Constitution was the jichinsai itself held by Tsu City-the ceremony was performed by professional religious priests following distinctively Shinto rituals. The judgment stated that we had to judge objectively from the point of view of social common sense considering four factors: (1) the place where the jichinsai was held, (2) the religious evaluation of the activity by the ordinary person, (3) the intention, purpose, and religious aim of the city that held the jichinsai, and (4) the effect or the influence of the jichinsai on ordinary people, not being bound by the appearance of the activity, such as the fact that the performers of the activity were priests or the manner was a specific religious ritual.
Next, I will examine what are the factors that should be considered in this case when we determine that this activity constitutes a religious activity under Article 20(3) of the Constitution, comparing with the Tsu jichinsai case.
5. In this case, the issue discussed by the majority opinion is nothing but these expenses paid by the prefecture: The tamagushiryo donation for Yasukuni Shrine's spring and autumn Reitaisai ceremony, the kentoryo donation for Yasukuni Shrine's Mitamasai ceremony, and the komotsuryo donation for Ehime Gokoku Shrine's spring and autumn Ireitaisai ceremony, which was offered through the Ehime Prefecture Association for the Bereaved Families of the War Dead.
It was the groundbreaking ceremony held by Tsu City of which constitutionality was argued in the Tsu jichinsai case. In this case, the Reitaisai, Mitamasai, and Ireitaisai were held by either Yasukuni Shrine or Ehime Gokoku Shrine, not by the prefecture. It is controversial who held the Ireitaisai, either Ehime Gokoku Shrine or the bereaved families' association, but it is certain that the prefecture did not hold the ceremonies.
As for Yasukuni Shrine, the officer of the Tokyo office of Ehime Prefecture paid the tamagushiryo and kentoryo at the offices of the shrine, putting them into an envelope, mostly before the ceremonies, according to a decision by the head of the Tokyo office who was entrusted by appellee Shiraishi. Neither the governor nor the officer of the prefecture worshiped at the shrine.
As for Ehime Gokoku Shrine, appellee Shiraishi as governor paid a kumotsu offering to appellee Shiraishi, as president of the bereaved families' association, after the requirement of the association and the decision of the chief of the elderly people's social welfare section on the occasion of the Ireitaisai, held on a day near Higan in spring or autumn. Then appellee Shiraishi paid the offering to the shrine as president of the bereaved families' association. (It was written in the first instance judgment that the governor or his proxy went to worthip at the spring and autumn Ireitaisai.).
6. There are obvious differences between this case and the Tsu jichinsai case. What is the difference about the first factor, the place where the activity was held?

Concerning this point, the majority opinion says as follows:

These expenses were offered as tamagushiryo, kentoryo, and kumotsuryo for customary religious ceremonies-Reitaisai, Mitamasai and Ireitaisai-held in the precincts of Yasukuni Shrine or Ehime Gokoku Shrine. It also says that it is widely known that holding ceremonies is the main religious activity of Shinto shrines and that the Reitaisai and Ireisai follow religious rituals and are regarded as the most important ceremonies and that the Mitamasai also follows religious rituals and is the biggest ceremony at Yasukuni Shrine.
I do not discuss whether these facts are widely known or not, but it seems that the majority opinion emphasizes that the Reitaisai, Mitamasai, and Ireitaisai, which are regarded as the most important religious activities of Shinto or are among the biggest ceremonies, are held in the grounds of the shrines, (I can see it from the fact that the majority opinion points out that sacred lanterns on which the names of the donors were printed were hung in the precincts in the Mitamasai.) But it is a matter of course that customary religious ceremonies, such as the Reitaisai, Mitamasai, and Ireitaisai, are held in the precincts (and that sacred lanterns are hung in the precincts), and it does not have an important meaning to examine the factor of the "place where the activity was held," as in the Tsu jichinsai case, which the majority opinion takes as a precedent.
7. Next, I discuss the second factor to be considered, the average person's reaction to the said conduct. On this point, the majority opinion says that, generally, offering the above-mentioned tamagushiryo, when the shrine itself holds customary and important rites at its precincts (here "at its precincts" is emphasized again, probably in relation to the first factor) differs from the case of the groundbreaking ceremony to pray for stable foundations and accident-free construction at a building site under the auspices of the sponsor, it cannot be said that its religious significance has weakened gradually over time and become a mere customary ceremony, and it is difficult to think that the average person would consider the tamagushiryo to a Shinto shrine as a customary social courtesy.
Originally, in our country (unlike Christian or Muslim countries), various religions have developed and coexisted in many layers and pluralistic ways, as the majority opinion states, and in the above-mentioned case of jichinsai, the court says that, in addition to indicating this point, many people believe in Shinto as members of the community and in Buddhism as individuals. They feel no contradiction even while using different religions on different ceremonial occasions, their religious consciousness is somewhat jumbled; and it is not unreasonable to say that the average Japanese has little interest in a consciousness of religion. To be a parishioner of a village shrine as a member of the community, and on the other hand, as an individual, to make a family tomb at one's Buddhist temple and hold a funeral and a memorial service for departed souls according to Buddhist rites is a pattern of life widely accepted among the people.
People pay their first visit of the year mainly to a shrine, but most of the visitors are Buddhists. When people visit a shrine, they usually make cash offerings to the shrine. If they take off their footwear, go into the shrine, bow deeply in front of it, and get special treatment from a Shinto priest, they make cash offerings to the shrine known as tamagushiryo. Generally, the Shichigosan ceremony, an event of celebration of children of three, five and seven years of age, is held in a way like that. Although the program of the celebration is held according to rituals peculiar to a Shinto shrine, most of the worshippers who attend it are Buddhists or not especially believers in Shinto, and usually they would feel no religious incompatibility in their mind.
People visit and make cash offerings to a shrine on such occasions as the first visit of the year, a wedding ceremony according to Shinto rites, the celebration for children of three, five and seven years of age, and events for one's personal prayer, as well as on occasions of customary rites considered as the main religious activities of Shinto shrines. The Reitaisai and Mitamasai held by Yasukuni Shrine in spring and autumn and the Ireitaisai held by Ehime Gokoku Shrine in spring and autumn are among such occasions. Originally, Yasukuni Shrine and Gokoku Shrine are places or institutions for mourning the war dead. After the war, as a part of the occupation policy, they were given the nature of religious corporations, but for that reason, they did not lose the nature of places or institutions for mourning the war dead. The deity of Yasukuni Shrine is mainly composed of millions of war dead, and that of Gokoku Shrine is mainly composed of the war dead of Ehime Prefecture. It also includes old feudal lords, people who have rendered distinguished services to the administration of a feudal domain, people who have done meritorious deeds to industry, public officials who have died in the performance of their duties, such as policemen, a firemen, members of the Self-Defense Forces, and so on. Although the word saijin, or deity, sounds dignified, it is a "technical term" proper to Shinto shrines. For the people in general who visit shrines, it is not the god but deceased individuals who are important.
A Gokoku Shrine in each prefecture used to be called shokonsha. Its customary ceremony was called shokonsai, As remembered by elderly people in or over their sixties, even though shokonsai was an event for mourning the war dead, it was not such a dignified one as being criticized for the relation with State Shinto under the principle of separation of state and religion. At the precincts of shokonsha, there were many stands selling cotton candy, and thinned and dried cuttlefish, and the smell of those hung in the air. It was nothing other than a pleasant ceremony for children.
Speaking of Gokoku Shrine in Ehime Prefecture, in its semiannual Ireitaisai held in spring and autumn, the local government put a 10,000 yen bill in a special envelope on which "Kumotsuryo, Ehime Prefecture" was written and took it to the office of the local society of the war bereaved at the precincts of the shrine. Then the local society of the war bereaved put a 10,000 yen bill into a special envelope on which "Kumotsuryo, Shiraishi Haruki, chief director of the Ehime Prefecture Association for the Bereaved Families of the War Dead" was written, and offered it to the shrine. In the case of Yasukuni Shrine, generally in advance, local officials put tamagushiryo (5,000 each) or kentoryo (7,000 or 8,000) in ordinary envelopes and took them to the shrine office. They did not attend the ceremony, and neither did the local governor, as stated above. In particular, note that the amount of offerings was small.
After considering concretely, as stated above, to make cash offerings as tamagushiryo, kentoryo, kumotsuryo, etc. when invited or requested is a matter related to Shinto rites. And because the parties that they made such cash offerings to were Shinto shrines, I cannot deny, have no need to deny, that it is connected with religion. But it can hardly be denied that it has an aspect of customary social courtesy.
The majority opinion mentions, however, citing the case of jichinsai, that it is difficult to say that providing such offerings is a mere social courtesy. In jichinsai, as stated above, sponsored by the City of Tsu, Shinto priests specialists in religion, wearing religious robes, performed the service following specific Shinto rituals, prepared a particular place, and used particular ceremonial equipment. In the present case, the reality was that they made comparatively small amounts of tamagushiryo or cash offerings to shrines in Reitaisai, Mitamasai, and Ireitaisai hosted by Yasukuni Shrine or Ehime Gokoku Shrine. In determining the average person's reaction to the said conduct, if it is concluded that the former is a mere social courtesy but for the latter, "it is difficult to think that the average person would consider it as a social courtesy," I have to say that the conclusion would strikingly lose a balance of evaluation.
The majority opinion thus makes a hasty decision, because "the local government apparently had a contact with important religious rites held by a certain religious organization."
However, "when the principle of separation of state and religion is actually established as a state system, a state must accept some degree of actual relationship with religion according to its own social and cultural characteristics," as the majority opinion mentions, and to decide "if such a relationship exceeds reasonable limits, it is unconstitutional," the purpose-effect test has been established, and four factors are said to be considered in applying the test to an actual case. In discussing the second factor, the average person's reaction to the said conduct, if it is affirmed that the average person would consider that the said conduct has a religious significance because "the local government apparently had a contact with important religious rites performed by a certain religious organization," I have to say that the second factor to be considered in applying the purpose-effect test to an actual case does not function at all.

8. Next, I will discuss the third factor to be considered, the actor's purpose in holding the ceremony, and the existence and extent of religious significance. On that point, the majority opinion says, where the second factor is to be discussed, it is difficult to say that the average person would consider tamagushiryo or the cash offerings to shrines in the present case as a social courtesy. If so, the party who provides tamagushiryo, etc., has to have, to a greater or lesser degree, a consciousness that such conduct has a religious significance, and that conclusion holds true to the present case, too.
Because providing tamagushiryo, etc., is placed as of most important significance among customary rites held by Yasukuni Shrine and Ehime Gokoku Shrine, or because it is offered to shrines in ceremonies held on the largest scale, naturally it has some connection with religion, and of course the party who provides tamagushiryo, etc., has to have, to a greater or lesser degree, a consciousness that such conduct has a religious significance. The question is the degree of the consciousness. Providing tamagushiryo, etc., has a significance as a social courtesy, and that discussion is also found in the latter part of the majority opinion. The majority opinion says, "a great number of persons who are enshrined in Yasukuni Shrine and Gokoku Shrine are the war dead of World War II ... not a few of the local residents of Ehime Prefecture, including the bereaved families, wish the local government to mourn for the war dead enshrined in Yasukuni Shrine or other shrines officially. Some of them wish so because of their desire to mourn for the war dead, not because of their religious beliefs.
In actual social life, not to mention the majority's discussion above, it is difficult to deny that providing tamagushiryo, etc., the average amount of which has been kept comparatively small for many years, has an aspect of a customary social courtesy, and the majority's ruling that the party who provides tamagushiryo, etc., has to have, "to a greater or lesser degree," a consciousness that such conduct has a religious significance, makes me feel as if it would indicate the above fact. The majority also points out, after concluding that it cannot be denied that providing tamagushiryo, etc., in the present case has a courtesy significance, even if a considerable number of citizens of Ehime Prefecture want that, for that reason, it cannot be said the relationship between the local government and a certain religion is within the limits of a reasonable one. However, in fact, the majority pressed that point after concluding that it is unconstitutional. What I discuss here is each factor to be considered in applying the purpose-effect test established to determine whether the said relationship "goes beyond the limits of a reasonable one" or not. I do not mention further about the majority's discussion above. Nor do I mention further about the majority's argument that "it is possible to mourn for the war dead and to console the bereaved families without such a special relationship with a specific religion."
So, how about the actor's intention or purpose in doing the said conduct, the third factor to be considered? On that point, the majority opinion states, in the present case, "the prefecture had never made offerings to the same kinds of rites held by other religious groups. Therefore, the local government has a special involvement with a specific religious group." Although the expression is dry and the sentence is short, the majority intends a lot by saying that, because the majority tries to complete, at a single stroke, the examination of the actor's intention or purpose in doing the said conduct, the third factor to be considered.
According to the argument of the jokoku appellees Shiraishi and others, documentary evidence, and witnesses supporting their argument, Ehime Prefecture has used public funds on occasions other than the Reitaisai and Mitamasai held by Yasukuni Shrine and Ireitaisai held by Ehime Gokoku Shrine. To the Ireitaisai held in Chidorigafuchi cemetery, Ehime Prefecture has disbursed public funds, and the director of the Tokyo office and other officials have attended the ceremony since 1959, when the cemetery was founded. The payment was 15,000 yen (in 1985). It was not so much different from the annual payments to Yasukuni Shrine and Ehime Gokoku Shrine. To the national memorial service for the war dead, Ehime Prefecture also disburses 10,000 yen as kyokaryo every year. They say that in Okinawa there is a memorial tower for the war dead from Ehime Prefecture, the "Tower of Ehime" (built in October 1962), and the association of the war bereaved has conducted a memorial service according to Budd hist rites in front of the tower. Ehime Prefecture disburses public funds (about 200,000 yen) every year for maintenance of this memorial tower. It is said that the local government's use of public funds was not made for a religious purpose; its purpose was to honor the memory of the war dead and to console bereaved families. Indeed, it is not a religious organization that holds the memorial service in Chidori- gafuchi cemetery, the national memorial service for the war dead, or the memorial service in front of the "Tower of Ehime." However, among all those cases where the purpose of payments from public funds is allegedly to honor the memory of the war dead and to console bereaved families, the majority opinion points out that only Yasukuni Shrine and Ehime Gokoku Shrine are religious corporations, for the mere reason that "the prefecture has never made offerings to the same kind of rites held by other religious groups." The majority opinion concludes, "the local government has a special involvement with a specific religious group." But that discussion would not be able to escape from the charge of unfairness. Note that so far a relation with a certain religious corporation has been discussed, but now suddenly, a "special" relation is emphasized.
9. Finally, I examine the fourth factor, the effect and impact on ordinary people of the conduct concerned. This factor deals with the most important element of the two elements of what we call the purpose-effect test, in order to conclude the constitutionality of the conduct concerned. The majority opinion makes a small reference to this factor. It says, "if a local government has a special involvement with a specific religious group as in this case, the average person is impressed that the prefecture especially supports this specific religious group and that this religious group is special and different from other religious groups. As an effect of these impressions, interest in the specific religion will be stimulated.
As I pointed out before, the majority opinion makes an error in that it regards examples of the memorial service at the war dead Chidorigafuchi cemetery, the national memorial service concerning the war dead, and the Buddhist memorial service in front of the "Tower of Ehime" as totally different from this case, based on the way of thinking that the sponsors of these memorial services were not religious bodies. Therefore, I cannot help holding that the majority opinion is based on a false presumption when it examines whether the fact that "a local government has a special involvement with a specific religious group as in this case" is right or wrong based on that logic. In addition, based on the presumption, the majority opinion only says concerning the fourth factor, the effect and impact on ordinary people by the conduct concerned, that "the average person is impressed that the prefecture especially supports this specific religious group and that this religious group is special and different from other religious groups. As an effect of these impressions, interest in the specific religion will be stimulated.
This is too abstract and lacks concreteness. It is as if it were groping for an ideal reference to support, promote, and encourage. In this point, the opinion of the first instance is easier to understand. It said as follows: The amount of money that the local government offered can be considered as in the realm of ordinary social protocol. However, even if the amount on each occasion is small, the relation between the local government and the shrine cannot be ignored when it is offered again and again. When it is known commonly, it is liable to occur that ordinary people have the impression that Yasukuni Shrine is special and different from others or that they intensify or reinforce such an impression. In conclusion, the offering of tamagushiryo can be said to play a part as a symbol concerning the relation between the local government and Yasukuni Shrine. Though the offering cannot be said to support, promote, and encourage the religious activities of Yasukuni Shrine from the economic view point, we can hold that it has an effect to support, promote, and encourage the religious activities of Yasukuni Shrine as a consequence of that symbolic role from the mental view point. The opinion said the same thing regarding offerings to local Gokoku Shrines.
The opinion of the first instance made an error in that it discussed the role of "symbol concerning the relation" between both parties in spite of the fact that there was no substance of a concrete relationship between the local body and Yasukuni Shrine or the local Gokoku Shrines. Or it might be because there was no substantial relationship that the opinion of the first instance plainly put an emphasis on the mental point as "symbol of the relation." (It is different in both facts and contents from "symbolic combination," which was held in the United States Supreme Court's precedent.)
When the court applies the purpose-effect test held by the Grand Bench decision of in the Tsu jichinsai case, the ruling should not be rendered by such things as impression, possibility, or symbol as main clues, which are entirely mental concepts, if the court decides whether the effect of the conduct concerned could lead to promotion, support, encouragement, or oppression or interference. That is because the examination of constitutionality comes to be arbitrary when those abstract and not understandable concepts are used as factors. Though the majority opinion does not use the expression "symbol concerning the relationship" held in the opinion of the first instance, it is not substantially different.
10. As stated above, I have examined the majority opinion's logic as to the four factors, provided that I follow the precedent's ruling held by the Grand Bench decision in the Tsu jichinsai case. I cannot help concluding that it is extremely difficult to understand the context according to the logic when one reads it. To begin with, the first factor cannot function in this case. Next, as to the other three factors, the majority opinion proclaimed that the relation between the offering concerned and the religion was "beyond the limit which is found proper" as a consequence of application of the purpose-effect test without enough explanation and argument.
However, as I have examined before, it is totally impossible for anyone to deny that the offering of tamagushiryo has the character of social protocol. On account of that, the religious significance of the conduct concerned is taken off to a considerable extent. When it comes to support, promotion, and encouragement, there is no substance. I cannot help considering that the majority opinion excessively fears the shadow of a national religion.
The offering of tamagushiryo and so on concerning this case has been kept on little by little, "in the realm of ordinary social protocol" in the opinion of the first instance, and for a long time, more than 20 years in all, until before appellee Shiraishi took up his post as governor. In the lawsuit, the expression that "someone states something continuously" is often used. "Continuously" means the situation in which something has been kept going little by little for a long time. The offering of tamagushiryo and so on concerned exactly falls on that. When the majority opinion finds the offering kept on little by little for a long time "beyond the limit which is found proper," it reminds me of the following remark by a deceased constitutional scholar. He said, "Is our Constitution so intolerant that it does not admit the existence of Jizo or Koshinzuka, which is an explanation of natural folk religion, in the corner of public land?" (Kazushi Koj ima, "As to what we call 'the separation of the state and religion' " Jurist vol. 848.)
11. Though my idea as to the constitutionality of the use of money concerned has been fully explained above, I have to discuss not only Article 20 but also Article 89 of the Constitution, since my position is that the use of money concerned is not unconstitutional.
As to this issue, the majority opinion held that the use of money concerned falls under the expenditure from public funds prohibited by Article 89 of the Constitution, and therefore it is illegal, because it is evident that Yasukuni Shrine and local Gokoku Shrines are considered as religious organizations or bodies under Article 89 of the Constitution and that the relation between local government and Yasukuni Shrine and so on reaches the stage beyond the limit that is found proper from our country's social and cultural point of view.
Article 89 of the Constitution is one of the difficult articles in the business of administration. I find the majority opinion's attitude is right, so long as it examines the article's constitutionality by using the purpose-effect test held by the Grand Bench decision in the Tsu groundbreaking ceremony case. That precedent held as follows.
"The groundbreaking ceremony is never against Article 20(3) of the Constitution. And we hold that it is not against Article 20(1)'s latter part of the Constitution too, since the ceremony gives no privilege to a religious body. In addition, the use of money for carrying out the building ceremony is also not against Article 89 of the Constitution and not against Article 2 (15) and Article 138 (2) of the Local Autonomy Law, since the use of money concerned cannot be considered as having a feature of supporting financially some particular religious organizations or bodies, judging from the purpose and effect of the building ceremony concerned and the nature and amount of the money and so on."
"The conduct concerned" held in the Grand Bench decision in the Tsu groundbreaking ceremony case is the performance of the groundbreaking ceremony hosted by Tsu City authority. On the other hand, in this case, there is no other "conduct concerned" than the use of money for tamagushiryo. So I cannot apply the Grand Bench decision to this case the same way as the Grand Bench had held. However, in short, I can conclude that the use of money concerned in this case is not against Article 89 of the Constitution, since it cannot be considered as having the feature of financially supporting some particular religious organization or body, judging from the purpose and effect of the nature of the expenditure concerned, which is for offering a tamagushiryo, and the nature and amount of the money and so on.
12. The discussion over Article 89 of the Constitution after World War II was not enough to be fulfilled. (When it was discussed at the old Empire Congress, what the religious people feared most was that the inner lands of shrines and temples, which had been nominally taken off by the Meiji Government, were liable to be taken off substantially this time by application of this article.) Judging from the language of the article, even a very small use of money seems to be prohibited so long as the use falls under the article. If so, the following question arises promptly: That is, whether "supporting particular religious private schools as equally as general private schools," which was the language of the Grand Bench decision in the Tsu groundbreaking ceremony case, violates Article 89 of the Constitution or not.
As to this issue, it is a common explanation that if the use of supporting money (public funds) for private schools that have to do with some particular religion were not permitted, while the use of supporting money (public funds) for other private schools is permitted, it violates the demand of the principle of the equal protection clause. However, if any difficult issues are tried to be solved by quotation of the principle of the equal treatment clause whenever one encounters them, is not it no other than a suicide of discussion concerning the Constitution in fact?
On the one hand, the use of a large amount of public funds, millions or billions yen, for religious private authorized schools is permitted because of the principle of equal protection. And if it were not permitted, they proclaim that it violates the freedom of religion promptly. If so, on the other hand, that logic also should be applied to this case as follows. That is, if the expenditure from public funds for other war dead memorial institutions is permitted, the use of a very small amount of public funds, like 5,000, 7,000, 8,000, or 10,000 yen, for the shrines, which have a fundamental character of war dead memorial institutions, should be permitted. If it were not permitted because the shrine fell under ,religious organizations or bodies," that meant violation of the freedom of religion then and there. Why do people concerned not feel a contradiction when they consider the very small use of public funds for tamagushiryo and so on as unconstitutional but allow the state to give relig ious private school corporations huge amounts of money? All is attributed to the attitude of jumping to the conclusion that the shrine should be criticized and considered not good, based on the history of having forced people to worship shrines before and during World War II.
When they point out the supression of religion before and during World War II by the state, they also have to point out that there were Taihonkyo and others, which were one of the shrine style's religion but nevertheless were severely suppressed by the state.
13. Evil had better be nipped in the bud. We must not stop making efforts to make the situation good in order to fulfill the ideal that the Constitution aims at. However, is there anything other than small evil sprouting in front of our eyes now that the national shrine system was perished long time ago?
I point out one example relating to Article 89 of the Constitution. When the state gives religious bodies the privileges that the state does not impose tax on real estate or money regarded as profit owned by these bodies, it has the same significance as the situation in which the state gives them public funds positively. It has been long after this issue was discussed in the United States Supreme Court, as related to the principle of separation of state and religion.
In our country, is there not any problem that should be discussed relating this issue? Why should the use of money for tamagushiryo concerned, which has been kept on little by little for a long time, be discussed in such a sensational way without discussing these situations mentioned above seriously? I cannot help questioning why these points are not questioned.

Presiding Judge

Justice Toru Miyoshi
Justice Itsuo Sonobe
Justice Tsuneo Kabe
Justice Katsuya Onishi
Justice Motoo Ono
Justice Masao Ono
Justice Hideo Chikusa
Justice Shigeharu Negishi
Justice Hisako Takahashi
Justice Yukinobu Ozaki
Justice Shinichi Kawai
Justice Mitsuo Endo
Justice Kazutomo Ijima
Justice Hiroshi Fukuda
Justice Masao Fujii

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