1971 (Gyo-Tsu) 69
- Date of the judgment (decision)
- Case Number
1971 (Gyo-Tsu) 69
Minshu Vol.31, No.4, at 533
Judgment on a case concerning the meaning of "religious activity" under Article 20, Paragraph 3 of the Constitution
- Case name
The Tsu City Shinto Groundbreaking Ceremony Case
Judgment of the Grand Bench; quashed and decision handed down by the Supreme Court
- Court of the Prior Instance
Nagoya High Court, judgment of May 14, 1971
- Summary of the judgment (decision)
1. The constitutional principle of separation of religion and State requires that the State be religiously neutral, but it does not prohibit all State connection with religion. Rather, it prohibits State connection with religion that is deemed, when Japanese social and cultural conditions and the purpose and effects of the State activity are taken into consideration, to exceed a reasonable standard consonant with the fundamental objective of the system, namely, the guarantee of religious freedom.
2. "Religious activity" under Article 20, Paragraph 3 of the Constitution does not mean all conduct of the State and its organs that is related to religion, but conduct whose purpose has a religious significance and whose effect is to subsidize, promote, or, conversely, suppress or interfere with religion.
3. A city-sponsored groundbreaking ceremony for a municipal gymnasium conducted under Shinto rites is undeniably connected to religion. However, when the totality of circumstances as stated in the judgment is considered, the ceremony is deemed to have the wholly secular purpose of marking the start of construction by a rite performed in accordance with general social custom to pray for a stable foundation for the building and accident-free construction work, and its effects are not deemed to subsidize or promote Shinto, or, conversely, to suppress or interfere with any other religion, and does not constitute "religious activity" in the meaning of Article 20, Paragraph 3 of the Constitution.
Constitution of Japan, Articles 20 and 89
A Jokoku Appeal was filed by the Appellant seeking reversal in part of the holding handed down by the Nagoya High Court on May 14, 1971, on a petition for annulment of an administrative disposition, etc., Case (Gyo-Ko) No. 8 (1967) of the Nagoya High Court. The Jokoku Appellee sought a judgment dismissing the Jokoku Appeal.
- Main text of the judgment (decision)
The judgment in part of the Court of Appeals that found against Jokoku Appellant is quashed. The intermediate appeal of Jokoku Appellee against that part is dismissed. The costs of the intermediate appeal and of the Jokoku Appeal shall be borne by Jokoku Appellee.
1. On Ground (1) for Jokoku Appeal by Appellant's attorney Horiya Yoshio:
The language of the petition indicates that the original suit was brought against the Jokoku Appellant, Kakunaga Kiyoshi, in his capacity as a private individual. Therefore, this Court rejects Jokoku Appellant's argument, which rests on the untenable premise that the original suit was brought against the Mayor of Tsu City.
2. On the supplement to the above Ground (1) for Jokoku Appeal:
The records clearly show that Jokoku Appellee completed the necessary petition for audit when he brought the original suit. This Court rejects Jokoku Appellant's argument that the Court of Appeals erred in its decision.
3. On Ground (2) for Jokoku Appeal by Appellant's attorney Horiya Yoshio and Ground (4) for Jokoku Appeal by Appellant's attorney Higuchi Tsunemichi:
Clearly, an expenditure of public money is illegal not only when the expenditure itself violates Article 89 of the Constitution, but also when the reason for the expenditure is prohibited under Article 20, Paragraph 3. This Court rejects Jokoku Appellant's contention since it wrongly assumes that the expenditure of public money in the present case would be illegal only if it violated Article 89 of the Constitution.
4. On Ground (3) for Jokoku Appeal of Appellant's attorney Horiya Yoshio, Grounds (1) and (3) for Jokoku Appeal of Appellant's attorneys Okuno Kenichi, Tanabe Tsunesada, and Hayasegawa Takeshi, and Grounds (1) and (3) for Jokoku Appeal of Appellant's attorney Higuchi Tsunemichi:
(a) Background of This Case
(i) This case contests the legality of the expenditure by Jokoku Appellant, as Mayor of Tsu City, of the sum of 7,663 yen in municipal public funds (4,000 yen in remuneration to Shinto priests and 3,663 yen for offerings) to hold a groundbreaking ceremony at the site of the Tsu City Gymnasium in Sendo Town, Tsu City, on January 14, 1965 (hereinafter "Groundbreaking Ceremony"). The city, a local public entity, sponsored the event and used city employees as ushers. The ceremony was conducted in accordance with Shinto rites and presided over by four Shinto priests, including the chief priest of Oichi Shrine, which is a religious corporation.
(ii) The court of first instance ruled that the Groundbreaking Ceremony is the same ceremony that has been conducted since ancient times under the name jichinsai (Shinto groundbreaking ceremony), and that while it undeniably appears to be a Shinto religious ceremony, it is actually a folk ceremony, not a religious activity for the purpose of propagating or disseminating Shinto, and therefore does not violate Article 20, Paragraph 3 of the Constitution. Further, that Court found that the payment of expenses for the Groundbreaking Ceremony was not intended to assist a particular religious organization, and that the payment of 4,000 yen to the Shinto priests, in particular, was merely a fee for services and thus did not violate Article 89 of the Constitution or Article 138, Paragraph 2 of the Local Autonomy Law.
However, the Court of Appeals ruled that the Groundbreaking Ceremony cannot be viewed merely as a social observance or folk ceremony but should be considered a religious rite specific to Shrine Shinto. The Court further ruled that the Constitution adopts the principle of complete separation of religion and State and declared the State to be secular with the intention of making a clear separation between the two. Accordingly, the Court of Appeals ruled that the prohibition of "religious activity" in Article 20, Paragraph 3 of the Constitution covers not only positive acts designed to propagate or disseminate a particular religion, but all acts that are expressions of religious faith, including any "religious act, celebration, rite or practice" as stipulated in Paragraph 2 of Article 20. The Court thus found that the Groundbreaking Ceremony constituted a religious activity prohibited under Article 20, Paragraph 3, and that the expenditure of public money by Jokoku Appellant as mayor was therefore illegal.
(iii) Jokoku Appellant contends, in sum, that the Court of Appeals erred in determining the nature of the Groundbreaking Ceremony and the significance of the principle of religion-State separation when it held that the ceremony constitutes a religious activity prohibited under Article 20, Paragraph 3 of the Constitution, since the ceremony is merely a folk practice which, under the name jichinsai, has been traditionally accepted and performed as a general social custom and which does not constitute a prohibited religious activity. Jokoku Appellant contends that the Court of Appeals erred in its interpretation and application of Article 20, and that these errors clearly influence the Court's conclusion.
(b) The Judgment of This Court
(i) The Constitutional Principle of Separation of Religion and State
The Constitution guarantees the freedom of religion in a narrow sense in the provisions "Freedom of religion is guaranteed to all" (Article 20, Paragraph 1, section 1) and "No person shall be compelled to take part in any religious act, celebration, rite or practice" (Article 20, Paragraph 2). It also establishes provisions based on the principle of separation of religion and State (hereinafter "Provisions on Religion-State Separation"), viz., "No religious organization shall receive any privileges from the State, nor exercise any political authority" (Article 20, Paragraph 1, section 2); "The State and its organs shall refrain from religious education or any other religious activity" (Article 20, Paragraph 3); and "No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association . . . " (Article 89).
In general, the principle of religion-State separation has been understood to mean the secularity or religious neutrality of the State; in other words, because questions of religion and faith are matters of individual conscience that transcend the dimension of politics, the State (including local public entities; the same applies hereinafter), as the holder of secular authority, should place such questions beyond the realm of public power and refrain from interfering in matters of religion. The relationship of religion and State differs between countries and is a product of their historical and social conditions. The Constitution of the Empire of Japan  (hereinafter "Meiji Constitution") contained a provision that guaranteed freedom of religion (Article 28), but the same Article restricted that guarantee "within limits not prejudicial to peace and order, and not antagonistic to [the peoples'] duties as subjects." Moreover, State Shinto was virtually established as the national religion; belief therein was sometimes demanded, and certain other religious groups were severely persecuted. Thus, the Meiji Constitution's guarantee of religious freedom was incomplete.
This situation changed at the end of World War II. On December 15, 1945, the General Headquarters of the Supreme Commander for the Allied Powers (GHQ-SCAP) issued the "Directive on the Abolition of Governmental Sponsorship, Support, Perpetuation, Control, and Dissemination of State Shinto and Shrine Shinto" (known as the Shinto Directive) to the Japanese government. This assigned to Shrine Shinto the same legal status as other religions, and also specified concrete measures to separate all religions, including Shinto, from the State.
In light of the deleterious effects of the close ties that had existed between the State and Shinto since the Meiji Restoration, the Constitution of Japan, promulgated on November 3, 1946, guaranteed unconditional freedom of belief and further strengthened that guarantee by establishing the Provisions on Religion-State Separation.
In Japan, unlike Christian or Muslim countries, various religions have developed alongside one another and coexisted on many levels. In this environment, an unconditional guarantee of religious freedom, on its own, would not be sufficient to assure freedom of belief; it was also necessary to establish the Provisions on Religion-State Separation in order to eliminate all ties between the State and religion. Thus, the Constitution should be understood as establishing the Provisions to secure State secularity and religious neutrality by adopting the ideal of complete separation of religion and State.
The Provisions on Religion-State Separation are essentially an institutional guarantee; that is to say, they do not directly guarantee freedom of religion per se, but attempt to guarantee it indirectly by securing a system in which religion and the State are separate. However, religion involves more than private, personal belief; it is accompanied by a broad array of external social aspects and thus comes into contact with many sectors of social life, including education, social welfare, culture, and folk customs. As a natural result of this contact, the State cannot avoid association with religion as it regulates social life or implements policies to subsidize and support education, social welfare, or culture. Thus, complete separation between religion and State is virtually impossible in an actual system of government.
Furthermore, to attempt complete separation would inevitably lead to anomalies in every area of social life. For example, it would cast doubt on the propriety of extending to religiously affiliated private schools the same subsidies that are given to nonreligious private schools, and it would call into question the propriety of State assistance to religious groups for the maintenance and preservation of cultural assets such as shrine and temple buildings, Buddhist statues, and the like. To deny such support would amount to imposing a disadvantage on these entities because of their religious affiliation; in other words, it would amount to discrimination on religious grounds. Similarly, to prohibit all prison chaplaincy activities of a religious nature would severely restrict inmates' freedom of worship. As these examples demonstrate, there are certain inherent and inevitable limits to the religion-State separation guaranteed by the Provisions. When the principle of religion-State separation is embodied in an actual system of government, given that the State must accept some degree of involvement with religion according to the particular societal and cultural characteristics of the nation, the question then becomes [a balancing of interests]: under what circumstances and to what degree can such a relationship be accepted while remaining consistent with the guarantee of religious freedom which is the fundamental objective of the system. From this perspective, the principle of religion-State separation, which forms the basis of the Provisions and serves to guide their interpretation, demands that the State be religiously neutral but does not prohibit all connection of the State with religion. Rather, it should be interpreted as prohibiting conduct that brings about State connection with religion only if that connection exceeds a reasonable standard determined by consideration of the conduct's purpose and effects in the totality of the circumstances.
(ii) Religious Activity Prohibited by Article 20, Paragraph 3
Article 20, Paragraph 3 of the Constitution stipulates that "The State and its organs shall refrain from religious education or any other religious activity." Using the above discussion of the principle of religion-State separation to interpret this language, "religious activity" should not be taken to mean all activities of the State and its organs which bring them into contact with religion, but only those which bring about contact exceeding the aforesaid reasonable limits and which have a religiously significant purpose, or the effect of which is to promote, subsidize, or, conversely, interfere with or oppose religion. The prime example of such activities is the propagation or dissemination of religion, such as religious education, which is explicitly prohibited in Article 20, Paragraph 3; but other religious activities like celebrations, rites, and ceremonies are not automatically excluded if their purpose and effects are as stated above. Thus, in determining whether a particular act constitutes proscribed religious activity, external aspects such as whether a religious figure officiates or whether the proceedings follow a religiously prescribed form should not be the only factors considered. The totality of the circumstances, including the place of the activity, whether the average person views it as a religious act, the actor's intent, purpose, and degree (if any) of religious consciousness, and the effects on the average person, should be taken into consideration to reach an objective judgment based on socially accepted ideas.
Let us now examine the relationships between Paragraphs 2 and 3 of Article 20. Both concern religious freedom in the broad sense, but Paragraph 2, which states that no person shall be compelled to take part in any religious act, directly guarantees freedom of religion in the narrow sense as well, that is, against deprivation of that freedom by the majority. Paragraph 3, on the other hand, seeks to indirectly guarantee the freedom of religion by the direct prohibition of a certain range of activities of the State or its organs, thereby guaranteeing a system that separates religion and State. As indicated above, limits inhere in the latter guarantee, which should be determined in light of the average person's attitudes since the issue is one of State involvement with religion in the social context.
As shown above, the two paragraphs differ in purpose, intent, and scope, and they guarantee different freedoms. Thus, the interpretations of "religious act," etc. in Paragraph 2 and "religious activity" in Paragraph 3 proceed from different perspectives. Not all of the acts covered by Paragraph 2 are necessarily included in the activities prohibited by Paragraph 3. Even if a particular religious celebration, rite, or ceremony is deemed not to be included in "religious activity" under Paragraph 3, if the State coerced a person to participate who would otherwise choose not to take part on grounds of religious belief, this would, of course, infringe that person's religious freedom and would violate Paragraph 2. For that reason, the above interpretation of "religious activity" prohibited under Article 20, Paragraph 3 does not in itself endanger the freedom of belief of religious minorities.
(iii) The Groundbreaking Ceremony
We will now consider whether the Groundbreaking Ceremony constitutes a "religious activity" as prohibited by Article 20, Paragraph 3.
As described by the Court of Appeals, the Groundbreaking Ceremony was clearly a rite performed at the start of construction of a building to pray for a stable foundation for the building and safe construction work. According to the legally relevant facts found by the Court of Appeals, the form of the ceremony was religious. It was conducted by Shinto priests, who are professional religionists, at a ceremonial site of a special type that was set up for the occasion; the priests wore religious garments and followed a ritual specific to Shrine Shinto, using special ceremonial implements. Moreover, it can be assumed that the priests who performed the ceremony did so out of religious conviction. Thus, the ceremony undeniably involved religion.
Nevertheless, although the groundbreaking ceremonies (known as jichinsai, among other names) that are traditionally performed at the start of construction work to pray for a stable foundation and workers' safety had religious origins in their intent to pacify the gods of the land, there can be no doubt that this religious significance has gradually waned over time. In general, although the ceremony includes prayer for safety and a firm foundation at the start of construction, the proceedings have become a formality perceived as almost completely devoid of religious meaning. Even if the ceremony is performed in the style of an existing religion, as long as it remains within the bounds of well-established and widely practiced usage, most people would perceive it as a secularized ritual without religious meaning, a social formality that has become customary at the start of construction work. Although the Groundbreaking Ceremony was conducted as a Shrine Shinto rite, for most citizens, and for the Mayor of Tsu City and others involved in sponsoring the event, it was a secular occasion with no particular religious meaning, because such a ceremony is well within the bounds of general usage widely observed over many years.
Furthermore, in actual practice, the construction workers themselves who are particularly concerned with safety consider it indispensable, as a general custom, to mark the start of work with a ceremony sponsored or attended by the owner of the building and including a ritual like the one in this case. In light of this practice, together with the public attitudes discussed above, it is clear that the building owner had a very secular motive for holding the customary groundbreaking ceremony: meeting the demand of construction workers to observe a social formality that has become customary at the start of work, thereby ensuring its smooth progress. Since there were no special circumstances affecting the Groundbreaking Ceremony, there is no reason to assume that the motive of the Mayor of Tsu City and others involved in sponsoring the event was any different from the typical motive of building owners described above.
The Japanese public in general does not display a great interest in religion. They reveal, instead, a mixed religious consciousness: as members of the community, many people are believers in Shinto, and as individuals, believers in Buddhism. They feel no particular inconsistency in using different religions on different ceremonial occasions. Furthermore, Shrine Shinto is characterized by its close attention to ceremonial form and the virtual absence of outreach activities such as the active proselytizing seen in other religions. These circumstances taken together with the public attitude to groundbreaking ceremonies discussed above render it unlikely that a groundbreaking ceremony at a construction site, even when performed by Shinto priests according to the rituals of Shrine Shinto, would raise the religious consciousness of those attending or of people in general, or that it would have the effect of assisting, fostering, or promoting Shinto. This is equally true even when the sponsor of such a ceremony is the State, acting in the same capacity as a private citizen. It is inconceivable that such sponsorship would result in the development of a special relationship between the State and Shrine Shinto, or that it would ultimately lead to Shinto regaining the status of a State religion, or otherwise threaten religious freedom.
Considering the totality of the circumstances, although the Groundbreaking Ceremony is undeniably connected with religion, we deem it to be a secular ceremony conducted in accordance with general social custom at the start of construction work to ensure a stable foundation and workers' safety. Its effects do not subsidize or promote Shinto, or, conversely, suppress or interfere with any other religion. Therefore, it does not constitute prohibited religious activity under Article 20, Paragraph 3 of the Constitution.
The Court of Appeals erred in interpretation and application of Article 20, Paragraph 3 of the Constitution when it reached a determination different from the above. Since those errors clearly influence the Court's conclusion, Jokoku Appellant's argument is reasonable.
Accordingly, the portion of the judgment of the Court of Appeals that found against Jokoku Appellant should be quashed. Regarding that portion, this Court determines as follows: As stated above, the Groundbreaking Ceremony does not in any manner violate Article 20, Paragraph 3 of the Constitution, nor does it violate the second section of Paragraph 1 of Article 20, since it does not accord any privilege to a religious organization. Further, in light of the purpose and effects of the Groundbreaking Ceremony, the nature and amount of the expenses disbursed, and other factors, the payment of ceremony expenses cannot be regarded as assistance from public funds for a particular religious organization or religious group; it therefore does not violate Article 89 of the Constitution, nor does it violate Article 2, Paragraph 15 or Article 138, Paragraph 2 of the Local Autonomy Law. The petition of Jokoku Appellee against Jokoku Appellant, which is based on the premise that the payment is illegal, is thus unsustainable and is dismissed. This Court affirms the judgment of the court of first instance, which reached the same conclusion. The portion of the intermediate appeal finding against Jokoku Appellant is dismissed.
Therefore, in accordance with Article 7 of the Administrative Litigation Law, Articles 408, 396, and 384 of the Code of Civil Procedure, and, with regard to liability for the costs of the proceedings, Articles 96 and 89 of the Code of Civil Procedure, this Court finds as stated in the Main Text of the Judgment above. The dissenting opinion of Justices FUJIBAYASHI Ekizo, YOSHIDA Yutaka, DANDO Shigemitsu, HATTORI Takaaki, and TAMAKI Shoichi follows. The supplementary dissenting opinion of Justice FUJIBAYASHI Ekizo follows the main dissenting opinion.
DISSENTING OPINION OF JUSTICES FUJIBAYASHI EKIZO, YOSHIDA YUTAKA, DANDO SHIGEMITSU, HATTORI TAKAAKI, AND TAMAKI SHOICHI
1. The Constitutional Principle of Separation of Religion and State
Freedom of religion is the matrix from which the spiritual and intellectual freedoms of modern humanity have developed. This important basic human right was a precursor of other civil liberties and formed the nucleus thereof. As a fundamental principle of the life of the spirit, it is universally guaranteed by the constitutions of modern nations. In Japan, the Constitution attempts to provide a complete guarantee of religious freedom. The first section of Paragraph 1 of Article 20 states unconditionally, "Freedom of religion is guaranteed to all." The second section of Paragraph 1 then prohibits the granting of any privileges to or the exercise of any political authority by religious organizations; Paragraph 2 prohibits compulsory participation in religious activities; Paragraph 3 prohibits the State and its organs from engaging in religious activity; and Article 89 prohibits financial aid to any religious organization or group.
A declaration of unconditional religious freedom is insufficient by itself to guarantee that freedom. To accomplish that guarantee it is essential, above all, to sever all ties between religion and State. As long as such ties exist, there is a great risk that they will lead either to religious influence over the State or, conversely, to State interference in religious matters and, ultimately, suppression of religious dissent and violation of the freedom of belief. This risk is clearly illustrated by the history of Japan since the Meiji Restoration.
In the first year of the Meiji Period (1868), the new government proclaimed the unity of religious ritual and government administration. It reinstated the classical Office of Shinto Worship and announced a plan to establish Shinto as the State religion, whereby all the shrines and Shinto priests in Japan were placed under direct government control. It then issued a series of orders for the separation of Shinto and Buddhism, which were designed to purify Shinto and make it independent while attacking Buddhism. Meanwhile, the government maintained virtually unchanged the Tokugawa shogunate's policy of suppression of Christianity.
In 1870, the government issued the Proclamation of the Great Doctrine, which declared the "way of the gods" [as the guiding principle of the State]. In 1872, the Ministry of Religion appointed Shinto priests to the Agency for Spiritual Guidance and issued "three rules for teaching": (1) Observe a spirit of reverence for the gods and love of country; (2) Reveal the laws of nature and the way of humanity. (3) Revere the Emperor and obey the Imperial court. The government thus promulgated a political ideology imbued with religious character, centered on Emperor worship and belief in Shrine Shinto, and took steps to have the people instructed therein.
In 1871, the government declared that shrines were sites for the observance of "national rites" and were not the private property of individuals or families (Grand Council of State Decree No. 234). In the same year, it issued the Grand Council of State Decree No. 235, "Allocations for Government Shrines and Other Shrines and Employment Regulations, Etc., for Shinto Priests," which established a ranking system for all the shrines in Japan (except Ise Shrine). Shrines were divided into kansha or public shrines (Imperial household shrines and national shrines) and shosha or miscellaneous shrines (urban-prefectural, domain [han], prefectural, and village shrines). The decree also gave Shinto priests the status of public officials, a privilege not accorded to other religions. In 1875, the government prohibited joint Shinto-Buddhist proselytizing and ordered each religious sect to proselytize independently. While giving verbal assurances to Shinto and Buddhist sects that it would allow freedom of belief, in 1882 the government abolished the status of Shinto priests as officials of the Agency for Spiritual Guidance and ordered them to cease officiating at funerals (Ministry of Home Affairs Notices [Otsu] No. 7 and [Tei] No. 1). By requiring Shrine Shinto to engage solely in ritual observances, the government was able to adopt the official position that it was not a religion, and on that basis it consolidated a system which, in effect, established it as the national religion or State Shinto.
Article 28 of the Meiji Constitution (promulgated in 1889) guaranteed the freedom of religion, but only "within limits not prejudicial to peace and order, and not in conflict with [the peoples'] duties as subjects." The Meiji Constitution's guarantee of religious freedom was far from complete, for although the law officially countenanced no state religion and accorded legal equality to all religions, State Shintoism had actually already been established, which effectively gave Shrine Shinto the status of a national religion, as described above, and citizens were expected to worship at and revere shrines as a civil duty.
Furthermore, Law No. 24 of 1906, the Law Concerning Expenses of Imperial Household Shrines and National Shrines, stipulated that the national treasury would be responsible for those expenses, and Imperial Ordinance No. 96 of 1906, "Matters Concerning the Costs of Offerings by Urban-Prefectural and Lower-Ranking Shrines," stipulated that local public bodies would finance the costs of the ritual offerings of food, drink, cloth, and paper made by local shrines. Thus, the shrines were also made financially dependent on the State or local public entities.
The de facto status of Shrine Shinto as a State religion, therefore, was maintained until Japan's defeat in 1945. During that period, other religious groups such as Omoto, Hitonomichi, Soka Kyoiku Gakkai [the prewar name of Soka Gakkai], and the United Church of Christ in Japan were subjected to strict governmental control and repression. Religions were officially sanctioned only insofar as they did not conflict with the concept of a State Shinto-centered "national polity." Worship at shrines was, in effect, compulsory; not only was this an egregious violation of the freedom of religion guaranteed under the Meiji Constitution, but State Shinto also formed the spiritual basis of militarism.
On December 15, 1945, GHQ-SCAP issued the "Directive on the Abolition of Governmental Sponsorship, Support, Perpetuation, Control, and Dissemination of State Shinto and Shrine Shinto" (the Shinto Directive) to the Japanese government, ordering the complete separation of Shrine Shinto from the State and specifying concrete measures toward that end. Shrine Shinto was to be placed on the same legal standing as all other religions; thus, all religions, including Shinto, were to be separated from the State. There was to be no further special protection and supervision of Shinto by the State and public officials, nor public financial aid to Shinto and its shrines. Household altars and other physical symbols of State Shinto were banned from public facilities.
The Constitution of Japan incorporated the ideas of the Shinto Directive in contemplation of the bitter experience of the harmful effects of close association between the State and Shinto under the Meiji Constitution's guarantee of religious freedom. That guarantee, as shown above, was incomplete despite the importance of freedom of belief as a basic human right. The separation of religion and State is essential to secure that right. Thus, in addition to the unconditional guarantee of religious freedom in the first section of Paragraph 1, Article 20, the Constitution of Japan adopted the provisions cited above to secure a complete guarantee.
Reviewing the above history, the principle of religion-State separation embodied in the second section of Paragraph 1 and Paragraph 3 of Article 20 and in Article 89 would require absolute separation. In other words, the State should be secular: religion and the State are mutually independent with no connecting ties, and the State neither allows religious influence in its affairs nor interferes in religious matters.
The Majority Opinion holds that complete separation of religion and State is merely an unrealizable ideal. It argues that attempting a complete separation will result in anomalies in all areas of social life, and claims that there is an inherent limit to the extent of separation guaranteed by the Provisions on Religion-State Separation. It argues, further, that while the separation principle requires State neutrality, it does not require the State to refrain from all contact with religion. In the majority's narrow interpretation, conduct that brings connection with religion is proscribed if that connection, when considered in the totality of circumstances, is deemed to exceed a standard of reasonableness based on Japanese social and cultural conditions.
The problem with this approach, however, is that the meaning of State connection with religion in the Majority Opinion is not entirely clear, and it is also unclear when such contact would exceed reasonable limits. In our opinion, the majority's interpretation of the separation principle poses the danger that State-religion ties will be readily tolerated and the guarantee of religious freedom itself will be weakened. Furthermore, from our perspective of an absolute separation of religion and State, no anomalies would arise if such a separation were attempted, since activities, like those cited by the majority, which it claims would be prohibited leading to anomalies in all areas of society, would in fact be permissible when interpreted under the principle of equality and other constitutional requirements.
2. Religious Activity Prohibited by Article 20, Paragraph 3 of the Constitution
Article 20, Paragraph 3 of the Constitution states, "The State and its organs shall refrain from religious education or any other religious activity." Given the significance of religion-State separation described above, the definition of "religious activity" here should not be limited to dissemination of religious doctrines, cultivation of converts, and the like, but also, as a matter of course, should include the act of holding religious celebrations, ceremonies, or rites. The definition should not be restricted as the majority contends. Religious celebrations, ceremonies, and rites are expressions of religious faith, and sponsorship of such activities by the State or its organs is clearly contrary to the State secularism signified by the principle of religion-State separation; inquiry into the concrete effects of the activity is not necessary, as the majority contends. However, this is not to deny that, in certain instances, the State or its organs may undertake what could be deemed to constitute religious activity, either because failure to do so would restrict citizens' religious freedom or because it is enjoined by constitutional principles such as equality before the law.
Even from the above standpoint, it is true that Article 20, Paragraph 3 would not prohibit a ceremony or rite which had religious origins but which, over time, had completely lost its religious meaning and coloration and become a purely secular custom. But even customary observances that retain their religious nature, that is, religious customary observances, should naturally be included in the category of prohibited religious activity. (Interpreting and applying Article 20, Paragraph 3 as described above should essentially determine whether a custom is secular, not testing whether it meets the ethnological definition of a custom as stated by the Court of Appeals.)
3. The Nature of the Groundbreaking Ceremony
Based on the above, we will now examine whether the Groundbreaking Ceremony constitutes religious activity prohibited under Article 20, Paragraph 3 of the Constitution.
(a) The legally relevant facts found by the Court of Appeals are outlined as follows.
(i) At the site of the Groundbreaking Ceremony, two tents were erected. Chairs for the attendees were placed in rows inside the front tent, while red and white curtains surrounded the rear tent, sacred bamboo was placed at its corners, and sacred ropes were hung around it on three sides to mark the ceremonial area. At the center rear of that area, an altar consisting of a plain wood table bearing ritual offerings to the gods was erected. A wooden food-offering stand bearing fruit and the like was placed at the front of the area. Sacred branches were placed on a table to the left before the altar, while the sacred implements of sprays of the sakaki tree, a sickle, and a hoe, were placed on a table to the right. Also, upright stems of dry bamboo were inserted in an area of raked sand at the front left of the altar; in front of this area, the order of ceremonies was displayed.
(ii) At the site entrance, a city employee poured water on the hands of each attendee from a ladle decorated with paper ties and ceremonial paper wrapped around its handle, in what is known as a "hand-washing ceremony" (the minimum purification rite in Shinto). The attendees then entered the site of the ceremony.
(iii) The Groundbreaking Ceremony commenced at 10 A.M., with Tsu City employee Ito Yoshiharu serving as master of ceremonies. Miyazaki Kisshu, the chief priest of Oichi Shrine, which is a religious corporation and the local tutelary shrine, officiated in the following Shinto ritual, assisted by three other Shinto priests, all wearing the prescribed robes and using ceremonial implements specific to shrines.
The priests conducted various rituals before the assembled participants: they performed a ritual waving of sakaki branches to purify them; they bowed before the altar and called on divine spirits including Oichi Hime-no-mikoto, the main god of Oichi and its tutelary deity, to descend to the offerings placed there; they presented offerings of fruit and other foods. The officiating priest then stood before the altar and read aloud a congratulatory address praying to the divine spirits for the safe completion of the construction work. The site was then ritually purified and offerings of rice were scattered. The Mayor performed a ritual gesture of cutting the dry bamboo with the sickle, representing the clearing of wasteland, and the official in charge of construction inserted the hoe in the sand, a ritual gesture that represents the leveling of wasteland. Then, one by one, the Mayor, President of the Municipal Assembly, and others came before the altar, offered sakaki sprigs that were handed to them by a priest, clapped their hands and bowed. The food offerings were then removed from the altar, and a ritual was performed inviting the gods to return to the heavens.
The attendees then bowed, the ceremony ended on schedule at approximately 10:45 A.M., and all proceeded to an adjacent tent on the western side for a celebratory banquet known in Shinto as a naorai.
(ii) It is clear from the above that the groundbreaking was a religious ceremony conducted according to rituals distinctive to Shrine Shinto and presided over by a Shinto priest. Setting aside questions of nomenclature, it is true in general that ceremonies to mark the start of construction work have been conducted for many years and have become largely secularized over time. However, as can be seen above, the Groundbreaking Ceremony itself had a very strong religious atmosphere; it cannot possibly be considered a secular convention. Moreover, even if we consider the concrete effects of the ceremony as the majority did, it is obvious that a local public entity's sponsorship of such an event results in preferential treatment and subsidization of Shrine Shinto. If such activities are condoned, there is a clear risk of a close relationship developing between local public entities and Shrine Shinto. We cannot agree with the majority, which admitted the ceremony's religious connection and did not deny its religious nature, but which treated its religious significance lightly and underestimated its effects. In our opinion, the Groundbreaking Ceremony clearly constitutes religious activity under Article 20, Paragraph 3. Moreover, there are absolutely no grounds as described above for allowing such activity in this case. The Groundbreaking Ceremony therefore violates Article 20, Paragraph 3 of the Constitution and should not be permitted.
The Groundbreaking Ceremony violates Article 20, Paragraph 3 of the Constitution. The judgment to that effect by the Court of Appeals was correct and the Jokoku Appeal should be dismissed.
SUPPLEMENTARY DISSENTING OPINION OF JUSTICE FUJIBAYASHI EKIZO
1. The State and Religion
The freedom of religion is a great principle of modern democratic states; it is the quintessence of a spirit of tolerance striven for and won through centuries of political and intellectual conflict. In the historical process of establishing religious freedom, the separation of religion and State has come to be considered its indispensable prerequisite. The principle of religion-State separation consists of two main points:
(a) The State should neither bestow special financial or institutional support nor impose special restrictions on any religion. In other words, the State should adopt an equally neutral attitude toward all religions.
(b) The State should not interfere in any way in the religious beliefs of its citizens. Religious belief should be left to the freedom of each individual. Whether to believe in a religion, and which religion, if any, are matters of private choice to be decided by each citizen individually.
With the establishment of these fundamental principles, ties between the State and a particular religion have come to be rejected, and the State is required to concern itself solely with secular matters. However, this does not completely eliminate problems of the State's relationship with religion. All States have a spiritual or conceptual foundation for their existence, and because religion, too, is a product of the human spirit, the State, while recognizing the principle of religious freedom, must not itself be indifferent or insensible to religion. The principle of religious freedom is not a sign of State disregard for religion; on the contrary, it must spring from respect for religion.
The existence of the State must be based on truth, and the truth must be protected. However, it is not the State that determines what the truth is, nor is it the people. No matter how democratic the age we live in, no one would consider the truth something to be decided by a majority vote of the people. What is true is determined by truth itself, and it is proven true by history, by the long experience of humankind. The truth is its own evidence, but it is not affirmed as true simply by an assertion that it is true. Humanity can confirm the truth only by means of history. For religion, also, we must say that truth is self-evident. Thus, a true religion can and should stand without support from the State or other secular authority. In matters of religion, it is precisely this independence which should be respected.
2. The Democratization of Religion
The "Shinto Directive" of GHQ-SCAP concerning State Shinto and Shrine Shinto contained three important points which became the foundations of Article 20 of the Constitution:
(a) It recognized shrines as religious in nature. There is, admittedly, some room for doubt as to whether this is completely consistent with the popular sentiment of the Japanese people. Shrine Shinto has little of the thought system characteristic of a religion; in many respects, it expresses simple folk feelings about life. However, some shrine rituals and acts performed by Shinto priests can be recognized as religious ceremonies, and that is the issue in the present case.
(b) Since Shrine Shinto was deemed to be a religion, the Directive ordered that State administrative and financial protection of shrines be abolished in keeping with the principle of separation of religion and State.
(c) It was understood that once Shrine Shinto was thus separated from the State, the people were free to believe in it as a religion.
After the Meiji Restoration (1868), as the government set out to construct a new Japan, it imported institutions and culture from the West, but as a spiritual foundation it relied on Japan's ancient way of the gods. Having launched its modernization campaign in this disorganized fashion, the government then decided, merely for reasons of international and domestic convenience, that Shrine Shinto did not constitute a religion, so as not to infringe religious freedom, while in actual fact according it the status of a national religion. Thereafter, political affairs and education in Japan were conducted in line with this policy. Regardless of the personal beliefs of the individuals concerned, it became customary for newly appointed Ministers of State to worship at Ise Shrine; local public officials were ordered to take part as Imperial messengers in the major festivals of Imperial household shrines and national shrines; school groups, led by teachers, visited shrines for worship; and local residents, as people under the protection of their community deity, were asked to make donations for shrine festivals.
These requirements were, in general, accepted peacefully as customary practices for the following reasons:
(a) Shrine Shinto was a simple religion. It had no organized theology; its view of the divine was elemental, and it had very few supernatural or miraculous components. Generally speaking, all is nature and the human. Because of this simplicity, the general public readily accepted shrine worship, since it was not perceived as something that infringed the principle of religious freedom.
(b) Historically, there had been few conflicts between Japanese Buddhism and Shrine Shinto, either in matters of theory or in daily life; on the contrary, they had coexisted side by side, cooperating and intermingling. The doctrine that the Japanese gods were incarnations of Buddhas and bodhisattvas provided a theoretical basis for the harmony, unity, and coexistence of the deities of the two religions. Some Buddhist temples had shrines dedicated to a Shinto guardian deity within their grounds, and most Japanese were, at the same time, both Buddhists and parishioners of their local Shinto shrine. In other words, they were content to believe in Buddhism as individuals and worship at shrines as a people, without finding this duality strange in any way. This was due partly to the missionary policies of Buddhism and partly, as stated above, to the simple religious nature of shrines. In any case, a thousand years leading a dual life combining Buddhism and Shrine Shinto meant the Japanese peoplehad little difficulty accepting the State's policy toward Shrine Shinto after the Meiji Restoration.
(c) The religious consciousness of the Japanese people developed within a tradition of Shrine Shinto and Buddhism and was therefore not sufficiently sensitive to the question of religious freedom. As the two religions are polytheistic or pantheistic, not monotheistic like Christianity with its personal God, they did not encourage a sense of the individual person or stimulate the development of concepts of basic human rights. Thus, they did little to raise awareness of the importance of religious freedom. This historical circumstance is probably a major reason why the issue of shrine worship was not viewed as a serious infringement of the freedom of religion.
3. Religious Activities Prohibited under Article 20, Paragraph 3 of the Constitution
The First Amendment of the United States Constitution ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .") was probably the greatest influence on the enactment of Paragraphs 1 and 3 of Article 20 of the Constitution of Japan. The provisions in the Japanese Constitution go even further in their proclamation of the principles of religious freedom and separation of religion and State and indeed are so exhaustive that there is nothing comparable among the constitutions of the world.
Paragraph 3 provides, "The State and its organs shall refrain from religious education or any other religious activity." When the significance of the principle of separation of religion and State, which should be the guiding standard for interpreting this paragraph, is considered, the provision should be construed as forbidding the State and its organs from engaging in any activity that has a religious meaning, not only positive activities with a religious purpose, such as disseminating a religion or cultivating believers, but also religious celebrations, ceremonies, and rites. The substantive reasons for thus broadly construing the meaning of religious activity are as follows.
It is said that virtually no people known to history has been without a religion. Of course, "religion" does not necessarily mean the same to scholars of religion or religious history as it does to scholars of law. Over the ages, theologians, philosophers, and those who study religions scientifically have offered so diverse an array of definitions of religion that there are said to be as many definitions as there are scholars. Hence, it is hardly surprising that "religion" is not defined anywhere in the laws of Japan.
In the United States, also, not only is there no definition of "religion" or "religious" in the Constitution, but the Supreme Court has not defined those terms when dealing with various religions or religion-like entities. Instead, it has been satisfied with stating that, whatever the meaning of these words, the First Amendment does not prohibit governmental conduct that intervenes in acts that interfere with duties to society or destroy good order. In other words, the U.S. Supreme Court found that because law is created to control acts, law cannot interfere in religious belief or opinions as such, but it can control religious activity. To put this another way, the Court decided to treat all religions and religion-like entities as religions under the Constitution, but to deal only with their external manifestations. (Cf. [ORIGINAL CHAPTER TITLE NOT CONFIRMED: "What Is a Religion?"] in Konvitz, Milton R. Religious Liberty and Conscience: A Constitutional Inquiry, New York, 1968.)
In my opinion, the words "religion" and "religious" in our Constitution also should be interpreted as broadly as possible. When these terms are strictly defined or narrowly construed, the guarantee of Article 20 does not to extend to other religious acts or other acts of an analogous nature; this not only results in severe restriction of religious freedom, but also opens the way to close ties between religion and State.
4. The Nature of the Groundbreaking Ceremony at Issue
The Majority Opinion recognizes that a groundbreaking ceremony is a rite to pray for accident-free construction work, etc., and that it includes the act of prayer. But it states that in the present day, both to average citizens and to the sponsors of a groundbreaking, it is a secular ceremony because it has become a mere formality accompanying the construction of a building. In other words, the majority consider it a customary practice.
Of course, we must recognize that there are various observances which were originally religious but which no longer have any religious meaning in society. The Japanese still place New Year's pine decorations outside their gates to bring good luck, although the custom seems to be declining year by year. We can also readily accept that customs like the Dolls' Festival and Christmas trees are meaningful as family treats that parents provide for children, or as observances to foster goodwill within a group. These customs have probably lost all religious significance.
But can we regard the performance of the Groundbreaking Ceremony under the circumstances described by the Court of Appeals merely as a way of bringing good luck or a form of entertainment? As the majority notes, those who are involved in the building work and who are thus particularly concerned with safety consider it indispensable to hold a groundbreaking ceremony incorporating rites as in this case, and the sponsors comply with this demand, regardless of their own wishes, to ensure the smooth progress of the work. It is inconceivable that the ceremony in the present case was held merely for the sake of the banquet that traditionally follows it. Something is here that cannot be understood in terms of mere customary practice. In other words, if consideration for workers' safety was the only concern, then given proper supervision and today's advanced building techniques, scientifically, nothing further would be necessary. However, a desire to ensure safety beyond human powers makes it necessary to rely on something other than human agency. If this is not religious, what is? Even if the Mayor of Tsu City, who sponsored the Groundbreaking Ceremony, is not a believer in any religion, the ceremony does not lose its religious character, inasmuch as it was an essential requirement to satisfy the construction personnel's wish for a level of safety not attainable by human powers. Similarly, if a child holds a religious funeral for his or her parent, the funeral is still a religious ceremony even if that child is not religious.
In the present case, a master builder and carpenters did not conduct the ceremony according to folk practices; four Shinto priests who came in their professional capacity from a shrine conducted it. The priests were not merely performers in an entertainment. According to the facts ascertained by the Court of Appeals, rituals are of the highest importance in Shrine Shinto as its central form of expression. All Shinto scholars emphasize this. It would even be true to say that the religious activities of shrines consist of holding festivals. Rituals in Shrine Shinto are gestures of giving thanks to the gods and expressions of faith in their purest form. In Shrine Shinto, the activities for religious enlightenment consist of festivals, first and last, and any educational activity that paid no attention to ritual would be considered meaningless. In other words, in Shrine Shinto ritual is of primary significance, and ceremonies or ritual observances are religious acts of the highest order.
5. Human Rights of Religious Minorities
The majority holds that even though the Groundbreaking Ceremony was performed according to the rituals of Shrine Shinto by Shinto priests, who are professional religionists, it would not have raised the religious consciousness of those attending or of people in general. This argument probably arises from Shrine Shinto's weak proselytizing capacity. But even if this is so, it is also a fact that some people feel a sense of discomfort around such ceremonies. An individual or private corporation is, of course, free to sponsor a groundbreaking ceremony in accordance with Shrine Shinto or some other religion; that is what religious freedom means. In the present case, however, it is my impression that too little attention has been paid to the fact that a local public body sponsored the ceremony. When the power, prestige, and financial support of the State or a local public body is present behind a particular religion, this gives rise to indirect pressure on members of minority religions to submit to the religion that has received public recognition.
Even if the costs of the ceremony are modest, and even if the general citizenry is not forced to participate, that is not the issue. (The Groundbreaking Ceremony was attended by 150 local dignitaries as guests; the official in charge of construction was present, Tsu City employees acted as master of ceremonies and ushers, and a total of 174,000 yen in public monies was spent, including the 7,663 yen in expenses for the ceremony which is the subject of Jokoku Appellee's petition.)
In short, the State and local public entities should not become involved in such matters. Even if the minority opinion may be viewed as hypersensitive, it is not permissible to infringe that minority's freedom of religion or of conscience by a majority decision. For therein lies the human right of spiritual freedom, the ultimate minimum that must be protected as indispensable to the maintenance of democracy. Thomas Jefferson wrote that religious coercion is clearly distinguished from coercion in all other matters, for one may become rich using methods that one is forced to follow, and one may be restored to health by medicines taken against one's will, but one can never be saved by worshipping a god in whom one does not believe. The State and local public entities should avoid matters related to religious belief or conscience that cause social conflict or public controversy. Herein lies the true significance of the principle of separation of religion and State.
6. The above is my opinion which is in addition to the Dissenting Opinion. In view of the significance of this Judgment, I wish to note that in Sections 1 and 2 of this opinion I have quoted extensively from "Kindai Nihon ni okeru shukyo to minshushugi" (Religion and democracy in modern Japan) in Yanaihara Tadao zenshu (Collected works of Yanaihara Tadao), vol. 18, p. 357 ff.
Grand Bench of the Supreme Court
- Presiding Judge
Justice FUJIBAYASHI Ekizo
Justice OKAHARA Masao
Justice AMANO Buichi
Justice KISHIGAMI Yasuo
Justice ERIKUCHI Kiyoo
Justice OHTSUKA Kiichiro
Justice TAKATSUJI Masami
Justice YOSHIDA Yutaka
Justice DANDO Shigemitsu
Justice MOTOBAYASHI Yuzuru
Justice HATTORI Takaaki
Justice TAMAKI Shoichi
Justice KURIMOTO Kazuo
Justices SHIMODA Takeso and KISHI Seiichi are unable to affix their signatures and seals due to retirement and to illness, respectively.
Presiding Judge, Justice FUJIBAYASHI Ekizo
Translation reference: "Case 34. Kakunaga. v. Sekiguchil (1977). The Shinto Groundbreaking Ceremony Case," in The Constitutional Case Law of Japan, 1970 through 1990, eds. Lawrence W. Beer and Hiroshi Itoh (Seattle: University of Washington Press, 1996), pp. 478-491.
(This translation is provisional and subject to revision.)