1988.06.01

1982(O)902

Judgment on the enshrinment of a dead SDF officer to Gokoku Shrine

Judgment of the Grand Bench, quashed and decided by the Supreme Court

The original judgment and the judgment of the first instance shall be quashed. The case shall be dismissed. All costs of the suit shall be borne by the Appellee.

Concerning the grounds for Jokoku Appeal by Toshikazu Yanagawa, Kazuyuki Shimohara, Makoto Nemoto, Koji Ishii, Masao Yamada, Kaname Kimura, Taku Sato, Hideo Iwasa, Makoto Kawakubo, Ken'ichiro Takahashi, Hisayoshi Honma, Fumimaro Ichihashi, Hirofusa Kudo and Fukuo Yamamoto, Representatives of the Appellant; I. The facts established by the original judgment are as below: 1. (1) The Appellee was baptized at the H Church of the United Church of Christians in Japan on April 4, 1958, and had believed in Christianity ever since. (2) The Appellee and Mr. J (hereinafter called J), an officer of the Self-Defense Forces (hereinafter SDF), held a wedding ceremony involving no religious rituals on January 1, 1959, and were maintaining a married life mainly in Morioka City; however, J was killed by a traffic accident which occurred at Kamaishi City in Iwate Prefecture on January 12, l968 while he was on duty. (3) Immediately after the death of J, the Appellee attended as a chief mourner at J's funeral with Buddhist rites arranged by the SDF Iwate X Office, and also attended at the funeral with Buddhist rites arranged by J's father, K, which was held in Hofu City, P Prefecture. Thereafter, K arranged to get J's posthumous Buddhist name and set his ashes in a Buddhist altar. (4) After J's death, the Appellee lived in K's house for a while, but left in about two months to live alone, taking out a part of J's ashes, and, in consideration of K's feeling, set a Buddhist altar and a Buddhist tablet for J in her residence and sent for Buddhist priests to recite Buddhist scriptures. However, two or three months later, she removed the altar and deposited his ashes in the charnel vault of the aforementioned Church in 1969. Following the Christian faith, she attended, with her son, Q, the memorial service for the deceased held by the Church in November of each year, and since then, the Appellee attended church services every Sunday, embracing Christianity, searched for the significance of J's death, mourned him, and maintained a life of spiritual reliance on Christianity. (5) While living, J did not believe in any religion. 2. (1) In November of 1964, the Federation of G of the SDF F Association, which association is a corporate juridical entity (the federation is called F Association hereinafter), presided over a memorial service at the Gokoku Shrine of P Prefecture (hereinafter Gokoku Shrine), a religious juridical entity, for twelve SDF members from P Prefecture who had died while on duty since the establishment of SDF up until March, l964. At a reception immediately after the memorial service, some families of the deceased SDF members expressed their desires to have the deceased jointly enshrined in the said shrine. Upon hearing this, President R and Vice-President S of the F Association asked the chief priest of the said shrine for a joint enshrinement on occasion, but endorsement was not obtained, and several months and years had passed by. (2) In the autumn of 1970, President S of the F Association (Vice-President S had become the president in February of that year) gained the impression from Chief Priest T of the said shrine to the effect that realization of the joint enshrinement was possible; thus from about March to June of 1971 Mr. S requested the executive committee of the F Association to process the application for enshrinement and obtained their concurrence. (3) At the social gathering of the C SDF Affiliated Organizations held in March of that year by the Commander of the U Division of the Ground Self-Defense Force, when President S reported the progress of the foregoing enshrinement matter, the Commander expressed concurrence and requested this be promoted. Since Mr. V, the head of SDF Yamaguchi Regional Liaison Office (hereinafter called Regional Office), attended the meeting; it came to pass that the Regional Office made preparations to take an active role in promoting the application for joint enshrinement by the F Association as a part of its affairs to assist surviving family members. (4) After that, Mr. W, Chief of General Affairs Division of the Regional Office, and President S scrutinized measures for the realization of the joint enshrinement. On May 22 of that year, Mr. W wrote to the chief of General Affairs Division of the SDF Regional Liaison Offices in each prefecture in Kyushu (except Nagasaki Prefecture) where SDF members who died while on duty were said to have already been enshrined in the Gokoku Shrines in each prefecture, inquiring about the circumstances of joint enshrinement of SDF members who died in duty status in the Gokoku Shrine of each prefecture, the main points of opinions for and against the foregoing enshrinement, the disposition of the shrines and of the families of the war dead concerning the foregoing enshrinement, and the process involved on those already enshrined. Detailed replies were received around the end of June of the same year. These were shown to President S by Mr. W, Chief of General Affairs Division. (5) From July of that year, based on the foregoing replies, President S negotiated with Chief Priest T and basically obtained his understanding in the autumn of that year, and the said application for enshrinement was submitted to the shrine at the request of the said chief priest. (6) In order to prepare for the application of joint enshrinement, President S met and discussed with Mr. Z, the president of the Federation of the Associations of SDF Y of P Prefecture, and established the Association for Honoring Deceased SDF Members (In-Line-of-Duty) before the end of that year, of which Mr. Z became the president and Mr. S the vice-president. As Mr. Z was living in Tokyo, Mr. S executed the association's business. While continuing to negotiate with Chief Priest T, Mr. S also consulted with Mr. Z and agreed on required qualifications for joint enshrinement of SDF members who died on duty, the proceedings thereof, that non-affiliated affairs of the Association for Honoring Deceased SDF Members should be conducted under the responsibility and name of the F Association, and, for necessary expenses, that donations will be collected from members of the above Federation of SDF Y Associations, the F Association and the SDF members in active service from P Prefecture. (7) President S requested Administrative Officer A of the Regional Office, to commit in writing these agreements except the part on expenses, to draft and distribute letters for the donations and to manage these donations. (8) Administrative Officer A, upon President S's above request, while negotiating repeatedly with Chief Priest T, established the criteria for application of the joint enshrinement by the F Association as well as drafted the regulation to carry out honorific funeral rites at the P Prefecture Gokoku Shrine for SDF members who died while on duty ("Hosai-Jisshi-Junsoku", hereinafter called Hosai-Junsoku Regulation) which would become effective upon acknowledgment and approval of the president of the Federation of the Associations of SDF Y of P Prefecture and the president of the F Association. On March 24, 1972, this regulation was approved by President Z of the said Federation and President S of the F Association. (9) Administrative Officer A kept custody of about 800,000 yen of funds that were donated. (10) President S requested Administrative Officer A to put together the necessary documents for the application of joint enshrinement; the said Administrative Officer requested the chiefs of the local branches and the chiefs of the districts of the Regional Office to collect certified copies of deletion from the family register and certificates of death while on duty through the relevant families of pertinent joint enshrinement persons. (11) On about March 31 of the same year, the F Association, in the name of its president, applied to Gokoku Shrine for joint enshrinement of twenty-seven persons, including J, as SDF members who came from P Prefecture who died while on duty as of March of the same year. On April l9 of that year, the shrine conducted the Enshrinement Ceremony (Chinza-Sai) for joint enshrinement of the foregoing SDF members who died while on duty as Enshrined Deities (Saishin) and held the feast (Naorai-no-Gi), and conducted the Grand Memorial Service (Irei-Taisai) on April 20, the next day. 3. (1) On April 5, l972, the Appellee told Administrative Officer B of the Regional Office, who came to get the documents necessary for the enshrinement, to the effect that enshrinement of J is declined because of her religious faith. And immediately thereafter, upon discovering a notice jointly sent in the names of Chief Priest T of Gokoku Shrine and President S of the F Association that had been delivered announcing the Enshrinement Ceremony (Chinza-Sai) and so forth that will be held and an invitation for prayers, the Appellee repeatedly told Administrative Officer B by telephone that the joint enshrinement is rejected. (2) Although President S received a communication on about the 10th of the same month concerning the Appellee's disposition from Administrative Officer A of the Regional Office, the application for joint enshrinement of J was not cancelled. (3) A document dated June the 1st of the same year from the chief priest of Gokoku Shrine addressed to the Appellee was delivered to her on July the 5th of the same year by Administrative Officer A of the Regional Office which read, "Offerings for the Sacred Eternal Prayer (Eitai-Kagura-Ryo) in memory of Shinto Deity J is solemnly accepted. Hereafter, Memorial Services (Meinichi-Sai) will continue to be held on the 12th day of January, eternally." II. Upon above facts the original judgment ordered compensation for Appellee's damages, ruling roughly as follows: 1 The application, as a prerequisite for the joint enshrinement by Gokoku Shrine, was of fundamentally religious nature, and it promoted and facilitated the religion of Gokoku Shrine and therefore it was a religious activity. 2 The application for the enshrinement was proposed and sponsored by the F Association and was initiated under its name. However, had it not been for the cooperation of the staff of the Regional Office, the association would not have filed it under the circumstances. The reason why its staff cooperated with the F Association so actively is assumed to be that the Regional Office itself strongly desired to realize the enshrinement, which would raise the social status and morale of the SDF members. The Regional Office and the F Association planned and prepared for the application, taking partial charge of the work together, and eventually applied for the enshrinement under the name of the association. Therefore the application can be deemed as being their joint action. 3 The action of the Regional Office staff, who applied for the joint enshrinement together with the F Association, was unlawful in relation to individual persons, as a violation of public order because it violated paragraph 3, Article 20 of the Constitution. 4 The joint enshrinement of J by Gokoku Shrine following the application infringed on the Appellee's legal interest to live under a quiet religious atmosphere, or infringed on her religious personal right. III. However, the ruling of the court below can not be accepted. The reason is as follows; 1 The first issue is whether the application for the enshrinement should be regarded as a joint action of the Regional Office staff and the F Association. It is obvious that to enshrine someone as Shinto deity relates to the enshrined Gods which are the fundamental of Shinto shrines and thus it is a matter to be conducted by independent decisions of the shrines. The details of incidents leading to the application was that the issue of enshrinement of dead SDF members in Gokoku Shrine originated in requests of their surviving families to the F Association, and as a result of such approach, Mr. S, the president, already in the autumn of 1970 had received from Mr. T, the chief priest of the shrine, the impression that the joint enshrinement would be possible, though the shrine had not been positive about it before. After that, President S, based on an approval of the executive conference of the F Association, had negotiated with Mr. T and thereby Gokoku Shrine decided to conduct the enshrinement of the dead SDF members. It was also President S who continued to negotiate with Mr. T and came to an agreement on the matters to be performed by the F Association for the joint enshrinement. And it was also President S who mainly worked for establishing the Association for Honoring Deceased SDF Members for preparation of the application. The original judgment found the fact that in the month of March 1971, at a meeting of affiliated organizations in C region, the Commander of the U Division of the Ground Self-Defense Force expressed his approval and desire to promote President S's report on the progress of the enshrinement problem and thereafter the Regional Office decided to play an active role to promote the application for it. The actions actually taken by the Regional Office staff were nothing but as follows; that Mr. W, Chief of General Affairs Division of the Regional Office of P Prefecture, asked the Chief of General Affairs Division of SDF Regional Liaison Offices in each prefecture in Kyushu (except Nagasaki Prefecture) about status of the joint enshrinement of dead SDF members and showed the answers thereto to President S and that Administrative Officer A of the Regional Office, upon S's request, had drafted the Hosai-Junsoku Regulation and letters of the F Association for donation, had distributed them and kept custody of the donated money, and had collected certified copies of deletion from the family register and certificates of death while on duty through the families of the dead SDF members. There were no facts showing that the Regional Office nor its staff directly approached Gokoku Shrine for the joint enshrinement. Judging from these facts, the joint enshrinement of the twenty-seven dead SDF members including J in Gokoku Shrine was basically realized through the efforts of the F Association, who had acted upon requests of the families of the dead SDF members and had negotiated with the shrine, and also through the decision of the shrine for the joint enshrinement. Therefore, although it is true that the Regional Office cooperated with the F Association by performing clerical work, the application which was made under the name of the F Association was filed independently in its substance and could not be regarded as a joint action of the Regional Office staff and the F Association nor be considered that the office staff themselves applied for it. Though the original judgment assumed that the office intended to raise the social status and morale of SDF members; such assumptions do not disturb those rulings of the Court when considering the fact that the actual action of their staff did not go beyond the above stated extent. 2 To be examined next is the issue of whether the cooperation of the Regional Office staff with the F Association for the application was a religious activity provided by paragraph 3, Article 20 of the Constitution. The religious activity provided by the said article should not be construed to include any activities relating to religion but to mean only the activity whose purpose has a religious meaning and whose effect is to promote, to facilitate, to accelerate, to oppress or to intervene a religion. When we examine whether a certain action constitutes religious activity, we should decide objectively following common sense and considering various factors such as place of the action, the public's evaluation, intent, purpose and religious feelings of those who act, its effect and influence to the general public, etc, (the judgment of July 13, 1977 by the Grand Bench, Supreme Court (Case No. (Gyo Tsu)-69 of 1971, Minshu vol. 31, No.4, p. 533)). It is as aforementioned that joint enshrinement is to be conducted by independent decisions of the shrines and therefore an application by someone for it does not constitute a prerequisite for it. In the case below, as the original judgment has found, Gokoku Shrine had already decided in principle to enshrine the dead SDF members in the autumn of 1971. Then the application in this case, by which they notified the shrine the names of the dead SDF members and the fact that their deaths occurred while on duty and by which they expressed their desire for enshrinement, should not be regarded as a legal prerequisite for the enshrinement though it related to religion. The actual actions of the Regional Office staff cooperating with the F Association up until the application, which were as stated above, had indirect relation with the religion and their purpose and intention were assumed to be to raise the social status and morale of SDF members, as aforementioned; hence it should be said that they had little religious feelings and that it was not the activity which would be considered by the general public as having effect of drawing attention to a specific religion or of sponsoring, promoting, encouraging a specific religion or suppressing or interfering with other religions. Therefore the actions of the Regional Office staff cannot be regarded as constituting religious activities though they did relate to religion. The provision of separation of the State and religion in paragraph 3, Article 20 of the Constitution, which is known as a provision of the institutional guarantee, does not guarantee the religious freedom itself directly to individual persons, but rather it is an attempt to indirectly guarantee the freedom of religion by setting forth the parameters of actions which the State and its organs may not conduct (the Grand Bench judgment of the Supreme Court, supra). Therefore, the religious activity of the State or its organs which violates this provision should not necessarily be deemed unlawful in relation to individual persons unless the activity directly infringes upon their religious freedom as guaranteed by the Constitution, e.g., by imposing restriction on their exercise of religious freedom in violation of the first sentence of paragraph 1 of the said Article or by compelling individuals to attend religious activities in violation of paragraph 2 of the said Article. 3 Next, we examine whether the legal interest of the Appellee was infringed. The Appellee asserts that her legal interest was infringed by the fact that the joint enshrinement of her deceased spouse was conducted based on the application. However, since the enshrinement is a matter to be decided independently by the shrine and the application therefor does not have legal meaning as a prerequisite for it, as aforementioned, we should not regard the enshrinement and the application together as a single incident with respect to whether the Appellee's legal interest was infringed, unless there were special circumstances under which the application should be deemed as a de facto compulsion for the shrine's enshrinement. If so, in this case, where there is no allegation or showing of those special circumstances on the influence of the application, it is sufficient to examine whether or not the joint enshrinement itself infringed on the Appellee's interest in order to decide whether or not her legal interest was infringed. In addition, since the enshrinement itself was conducted by Gokoku Shrine, we should examine the issue of infringement from the viewpoint of relationship between the shrine and the Appellee in private law. When the freedom of religion, which is guaranteed by the first sentence of paragraph 1 and by paragraph 2 of Article 20 of the Constitution, is infringed upon among individuals to the extent that exceeds socially acceptable degree, depending on its situation, legal remedies should be provided by appropriate application of Article 1 or Article 90 of the Civil Code, general provisions of controlling private autonomy, or by that of provisions of torts (ref. the judgment of December 12, 1973 by the Grand Bench (Case No. (O)-932 of 1968, Minshu vol. 27 , No. 11, p. 1536)). However, when one's religious peacefulness is disturbed by religious activity of others, though it is natural for him to feel uncomfortable for that and to wish not to be disturbed any more, if we admit such a person to seek legal relief such as compensation or injunction on the ground of infringement of religious feelings, then, instead, it will obviously come to harm the religious freedom of others. The guarantee of freedom of religion requires tolerance for religious activities of others that are inconsistent with the religion that one believes in as long as such activity does not disturb his or her freedom of religion through compulsion or by giving rise to disadvantages. The same is true for cases of reminiscence or memorial of one's deceased spouse. Because the freedom of religious activity such as to choose someone for an object of faith or to worship someone with one's religion and to pray for the peace of his spirit is guaranteed to every person. The interest to live a religious life under a quiet religious atmosphere, which interest the original judgment recognized as the religious personal right, is of the nature that could not be recognized immediately as a legal interest. Reviewing this case upon above rulings, J's enshrinement by Gokoku Shrine was left free for the shrine under the freedom of religion and, in itself , it did not infringe legal interests of anyone. And, the Appellee had never been compelled to attend the shrine's religious ceremonies, as found by the original judgment, and the Appellee does not assert any facts that any disadvantage was suffered because she did not attend the ceremonies nor any facts that she was prohibited, restricted, suppressed or intervened in any way to believe in Christianity or to mourn her late husband based on her religious faith. The letter of Gokoku Shrine's chief priest concerning Eitai-Meinichi-Sai, the content of which is mentioned in I, 3 (3) above, did not interfere with the Appellee's religious belief in any way. Therefore it should be concluded that the legal interest of the Appellee was not infringed at all. In this case, the Appellee alternatively asserts, as her infringed legal interests, (1)the religious personal right, (2)the right of religious privacy and (3)the legal interest which is guaranteed by the principle of the separation of the State and religion. However, according to the contents of the allegations, the first(1) and the second(2) interest have the same contents with what the original judgment recognized as the religious personal right which should not be recognized as a legal right as aforementioned. The third (3) interest, which premises that paragraph 3, Article 20 of the Constitution does guarantee legal interest for individual persons, has no merit either since the said provision is of, as aforementioned, what is called institutional guarantee and does not directly guarantee the freedom of religion to individual persons. The original judgment erred in interpretation of Article 20 of the Constitution and erred in application and interpretation of the law, and it is obvious that these errors influenced the judgment, thereby the Jokoku appeal has reason and the original judgment should be quashed. And since it is already apparent that the claim of the Appellee has no reason, the judgment of the first instance in favor of the Appellee should be quashed and the claim of the Appellee should be dismissed. Therefore the Court by majority opinion of the Justices on the bench, aside from the supplementary opinion of Justice Atsushi Nagashima, the supplementary opinion of Justice Masuo Takashima, Justice Iwao Yotsuya and justice Hisayuki Okuno, the opinion of Justice Rokuro Shimatani and Justice Tetsuro Sato, the opinion of Justice Toshio Sakaue and the dissenting opinion of Justice Masami Ito, renders the judgment as set forth in the main text in accordance with Articles 408, 396 , 386, 96 and 89 of the Code of Civil Procedure. The supplementary opinion of Justice Atsushi Nagashima is as follows: I agree with the opinion of the Court and would like to add my opinion on some points. I. Freedom of Religion and Religious Tolerance It is obvious that the fact that Gokoku Shrine conducted Chinza-Sai and Naorai-no-Gi on April 19 of 1972 and Irei-Taisai on the next day, April 20, in order to jointly enshrine as deities the twenty-seven members of SDF who were born in P Prefecture and died in pursuit of their duty, including J, consisted of religious acts, ceremonies or events. The first sentence of paragraph 1, Article 20 of the Constitution provides that "freedom of religion is guaranteed to all," and at the same time paragraph 3 of the article provides that "the State and its organs shall refrain from religious education or any other religious activity." Hence anyone except the State and its organs are constitutionally guaranteed the freedom of religious activity. Namely, the freedom of religion is equally guaranteed not only for "religious associations" which are defined by Article 2 of the Religious Corporation Act as "shrines, temples, churches and monasteries having establishments for worship and other associations similar thereto," and "denominations, sects, orders, churches, brotherhoods and dioceses or districts, comprising such associations as mentioned above, and other organizations similar thereto," but also for associations or individuals not covered by this definition. And paragraph 2, Article l of the Religious Corporation Act, based on this understanding, provides that "freedom of religious faith guaranteed in the Constitution must be respected in all phases of government. Therefore, no provisions in this Act shall be construed as to put any restriction upon any individual, group, or organization in disseminating teachings, observing ceremonies and functions and conducting other religious acts on the basis of the said guaranteed freedom." Thus the freedom of religion in a real sense could be guaranteed only when every religion is equally free to disseminate teachings, to observe ceremonies and to conduct other religious acts notwithstanding its history, number of followers or other circumstances surrounding each religion. In other words, it is constitutionally required that a religion should tolerate activities of other religions and should not interfere with nor disturb them. The same is true for their followers, who also are required to be tolerant of the religious activities of others which are conducted by religious associations or groups or by their followers, even if they are not comfortable with those activities. Conversely, if we conclude that one can seek legal remedies claiming infringement of personal right because of such discomfort, religious activities such as preaching, propagating or educating others and praying for those who have a different religion by religious associations or their followers might cause for lawsuits seeking damages and injunctions by followers of other religions. Even if we take a position that, though such religious activities by religious associations or their followers do infringe on legal interests of others, they should be tolerated by others and does not constitute tort because such interest is not to be protected so strongly and the extent of illegality of the infringement is not so great, these activities are still to be moderated as long as these activities, even slightly, infringe legal interests of others by making other people uncomfortable. If so, the religion whose main activity is to preach or to propagate would be damaged and the constitutional guarantee of the freedom of religion would be neglected completely. And because the Constitution guarantees the freedom of religion equally for every religion and its followers notwithstanding its history or number of followers, as aforementioned, and is not providing special protection to what is called religious minorities, tolerance of every religion is equally required by the Constitution without exception. Furthermore, the same is true where his or her dead spouse or relatives are enshrined or respected with a religion other than the one that he or she believes in. Thus he or she is required to be tolerant of such religious action, even if he or she is not comfortable with it. That is because the freedom of religion guarantees that everyone is free to respect or to pray for anything that he or she chooses to do so with a religion that he or she believes in notwithstanding whether the object of the worship is his or her relatives or not, whether it is dead or alive, or even whether it is a creature other than human being, a lifeless thing or a natural phenomenon or anything. Relationship between surviving relatives of the deceased should be mentioned here. It is needless to say that the freedom of religion is guaranteed for each individual and that so-called "the religion of a family" does not exist any more and it is not rare that among family members or relatives different religions are believed in. In fact, according to the findings of the court below, while K, the father of J, held J's funeral service with Buddhist rites and set his ashes to a Buddhist altar, the Appellee, after taking out a part of the ashes, enshrined it to a charnel vault of a Christian church and attended its memorial service for the deceased. And K was very glad for the enshrinement of J and sent a petition jointly with J's brother and sister for rejecting the Appellee's request to the F Association. There is no legal grounds for giving priority to a surviving spouse over surviving parents or children with regard to mourning and honoring the memory of the deceased, and it is obvious that things would be out of control if relatives who believe in different religions may seek legal remedies against each other because of the discomfort for the other relative's religious action of mourning and honoring the memory of the deceased. Thus religious tolerance is necessary even with relatives among each other. Paragraph 2, Article 20 of the Constitution provides that "no person shall be compelled to take part in any religious act, celebration, rite or practice." Though this is the provision prohibiting compulsion by public power, legal protection should be given by way of applying law of torts etc. when an individual person compels such action to another person to the extent that the method of the compulsion exceeds socially acceptable limit or degree, as the Court opinion explains. And under this interpretation, the permissible range of religious activities of associations, groups and individuals in relation to individual persons, i.e., a limitation where those who are uncomfortable with such religious activities are not entitled to claim legal interest under the guarantee of the freedom of religion should be decided. The boundary should be whether there is compulsion, prohibition or restriction as the other side of compulsion, or pressure or intervention. Therefore whether the joint enshrinement by Gokoku Shrine in this case should be found to have infringed on the legal interest or the Appellee or to have been within the freedom of religion should be decided according to whether it compelled the Appellee to participate in its religious activity, ceremony or event etc. and to whether prohibition, restriction, pressure or intervention was imposed upon the Appellee's religious belief or activity. In examining the enshrinement in this case and circumstances relating thereupon, the following facts have been settled by the court below; on March 31, 1972, the F Association, represented by its president, applied to Gokoku Shrine for the joint enshrinement of the twenty-seven SDF ex-officers including J; on April 5, 1972, the Appellee for the first time told a clerk of the Regional Office, who visited her to collect documents necessary for the enshrinement, that she would reject J's enshrinement because of her own religion; on April 10, Mr. S, the president of the F Association, being informed by a clerk of the Regional Office of the Appellee's rejection, did not cancel the application and the enshrinement was conducted by the shrine on April 19 and 20, as aforementioned; and the Appellee had never been compelled to participate in religious events of the shrine. And, as the Court stated, there is no allegation of such facts as that the Appellee's absence to the events was against her interests nor that her religious belief and mourning for J based upon her belief was prohibited, restricted, pressured or intervened. Moreover the letter concerning the Eitai-Meinichi-Sai services which was sent by the chief priest of the shrine did not interfere with the Appellee's religious belief at all, as the majority opinion mentioned. Hence it is obvious that in this case the shrine did not compel the Appellee to participate in its religious activity, ceremony or event etc., and that no prohibition, restriction, pressure or intervention was imposed upon the Appellee's religious belief or activity thereupon, thereby the Appellee's legal interest should not be found to have been infringed in any way by this enshrinement. I would not hesitate to understand the Appellee's feelings against the joint enshrinement which was conducted regardless of her will and which allegedly hurt her interest of cherishing the memory of her late husband according to her religious faith under a quiet religious atmosphere and that of living a religious life and seeking peaceful rest for the dead. However, I could not recognize such peacefulness of her mind as a legal interest when taking into consideration that, as aforementioned, every person is, despite of his or her religion, required to be tolerant of the religious activity of others in order to guarantee the freedom of religion in a real sense. II. The Conduct of the Regional Office Staff and Religious Activity As the court below mentioned, the application in this case was initiated and sponsored by the F Association, a federation of G Branches of a corporate juridical entity, the SDF F Association, which is a different organization from the Regional Office. Nevertheless, the court below concluded that the application could be evaluated as the cooperated activity of the Regional Office staff and the F Association when viewing it as one of a series of activity toward the application instead of viewing it as a single incident. I have no objection in taking the series of incidents into account. However, even after examining the process up to the application based on the facts established by the court below, it should be said that the matter of the joint enshrinement of SDF members was first raised by families of the dead SDF members who requested it to the F Association (though the court below emphasized the fact that the Commander of the U Division of the Ground Self-Defense Force expressed his approval for the plan and requested its promotion, this fact took place after six years had passed since the request of the families to the F Association, which was the beginning of the incident). The president of the F Association, after getting a positive response from Gokoku Shrine's chief priest for the enshrinement, requested the executive committee of the F Association to process the application for enshrinement and obtained their concurrence and thus took formal steps as an organization, and then negotiated with the chief priest about the joint enshrinement and reached the agreement on it. The Regional Office nor its staff had never directly worked with Gokoku Shrine concerning the enshrinement. It is true that under those circumstances the staff of the Regional Office made inquiries to the chiefs of General Affairs Division of SDF Regional Liaison Offices in each prefecture of Kyushu, except Nagasaki Prefecture, about the actual circumstances of the joint enshrinement of the dead SDF members at each local Gokoku Shrine, that they let the replies be read by the president of the F Association, that they drafted and distributed the Hosai-Junsoku Regulation and the prospectus for fund-raising by the F Association, that they took charge of the donated money and that they obtained copies of family registers of the dead SDF members and certificates of death while on duty (the drafted rule, Hosai-Junsoku Regulation, was not a rule of Gokoku Shrine itself but of setting forth the criteria for applying for joint enshrinement by the F Association, and the fund-raising was accomplished by the F Association, not by the Regional Office or its staff). Nevertheless, it is doubtful that the application could be evaluated as a joint activity of the F Association and the Regional Office when the activity of the Regional Office staff did not go beyond those contents. One of the emphasized factors was that the F Association's secretariat, which had no clerk of its own, was housed in the Regional Office's building and that most of its business was performed by the Regional Office staff. But among various associations in our society, whose aim is to promote friendship among their members, such as an alumni association of a school, some of them have no stable organization, their secretariats are housed in buildings of their main organization, they have no full-time employees and their business, from drafting and maintaining name lists of their patrons to collecting fees for operating various activities, are by and large handled by those who belong to the main organization. It is doubtful that activities of such association which are initiated, sponsored and entitled by itself are socially considered as its cooperative activities with the main organization and eventually as the activities of the latter. The fact that the secretariat of the F Association was housed in the building of the Regional Office, that they have no full-time employees and that their business was handled by the Regional Office staff should not be emphasized in judging whether the application was their cooperative activity. So long as viewing this case based upon the specific facts established by the court below, even if it is understood as being one incident in the series of incidents toward the joint enshrinement, the application, which was initiated and sponsored by the F Association under its name, cannot be deemed to be a cooperative action with the Regional Office staff. Besides, the original judgment found the following facts; that high-level officials of SDF had publicly attended ceremonies of joint enshrinement of dead SDF members throughout the country since about l963 and had expressed positive remarks for it; that it was presumed that the Regional Office had come to take a positive attitude for promoting the application after the Commander of the U Division of the Ground Self-Defense Force had expressed his approval for the plan and had requested its promotion; that the F Association, a corporate juridical entity, one of whose purpose is to cooperate with various business affairs of SDF, had close relations with the Regional Office; and that it was assumed that the Regional Office had hoped for the enshrinement of the dead SDF members in order to improve the social status of SDF members and to raise their morale. Even though under those circumstances the Regional Office staff had actively cooperated with the F Association and thus it had successfully persuaded Gokoku Shrine's chief priest, it cannot be considered that the Regional Office staff had substantially made the application when observing their specific activities. Therefore, whether the activities of the Regional Office staff are deemed to be religious activities, which is prescribed by paragraph 3, Article 20 of the Constitution, or not should be examined based upon their own activities. It should be noted that their activities were not intended for religious purpose in themselves, such as religious rite, ceremony, event, propagation or educational work. And their involvement with the enshrinement was indirect and secondary. They had little religious conscience as their purpose was to improve the social status of SDF members. And it was not done in such a way as would be considered by the general public to have the effect of drawing attention to a specific religion or of sponsoring, promoting or encouraging it or of suppressing or interfering with other religions. Thus these were not the religious activities provided by paragraph 3, Article 20 of the Constitution, as the majority opinion stated. The contention of the Appellee is not sustainable from those points neither. III. However, considering the intent of the Constitution which provided the separation clause in paragraph 3, Article 20, some of the actions of the Regional Office staff up to the point of submitting the application should have been more prudent; some of their speeches after the enshrinement in particular were inappropriate and they, as public officials, should have exercised more self-restrain as the supplementary opinion of Justice Masuo Takashima, Justice Iwao Yotsuya and Justice Hisayuki Okuno mentioned, on which point I agree with the supplementary opinion. The supplementary opinion of Justice Masuo Takashima, Justice Iwao Yotsuya and Justice Hisayuki 0kuno is as follows: Though the action by the Appellee should be dismissed according to law, on which conclusion we agree with the majority opinion, we would like to supplement it with regard to the conduct of the Regional Office staff's cooperation with the F Association in the process of the application of the joint enshrinement and their speeches thereafter. As the majority opinion stated, the application was an independent action of the F Association and could not be deemed as a joint action of the Regional Office staff and the F Association nor be considered that the staff of the office applied for the joint enshrinement. And under the circumstances, the concrete action of the Regional Office staff in the process of the application could not be deemed to be a religious activity provided by paragraph 3, Article 20 of the Constitution. However, the reason why the Constitution has come to provide separation of religion from politics is that, as the freedom of religion under Article 28 of the Meiji Constitution was guaranteed only when it does not disturb peace and social order and does not contradict the duty of a subject, the national Shintoism had in fact been ranked as the State religion and that it was attended by many iniquities, e.g., that faith to the Shintoism was sometimes requested and that some religious organizations were severely persecuted, hence further assurance of the freedom of religion was intended by the unconditional guarantee. Originally, various religions have been progressing and existing in the various strata of Japanese society. In order to realize the freedom of religion under these circumstances, to guarantee such freedom unconditionally was insufficient, and the rule of the separation of religion from politics was necessary for severing the connection between the State and any religion. Therefore it should be understood that, under the constitutional provision of separation of the State and religion, the perfect separation of the State and religion was considered to be ideal and the non-religiousness or the religious neutrality of the State was to be ensured (ref. the above mentioned judgment of July 13, 1977 by the Grand Bench). Then, as the above Grand Bench decision indicated, it is hardly possible to separate the State completely from religion as an actual system, since the State has to be concerned with religion when it regulates things in the society or takes measures for supporting education, welfare or cultural activity. Even though, the State and its organ, in taking such measures, should refrain from being concerned with religion beyond necessary extent regardless of whether or not such measures fall into the religious activity provided by paragraph 3, Article 20 of the Constitution. And public servants, in accomplishing their duty, should also refrain from being concerned with religion beyond necessary extent, should maintain religious neutrality and should avoid raising any suspicion among religious minorities and so forth that they are conducting religious activities of the State or of its organ or that they are favoring a specific religion, and thus, they should not awaken suspicions against religious neutrality. Although the intention of the Regional Office staff in cooperating with the F Association in the process of the application could be understood as a part of an aid for surviving families, which is one of their duties, they should have been more cautious since their activity was concerned with a religion, though indirectly, and it was neither an act of a conventional religious event with mainly secular purposes nor that of social ceremony. The assertion that the Regional Office staff cooperated in the process of the application recognizing that it was against the Appellee's will is irrelevant, because it was not until the Fifth Day of April, 1972 that the Appellee first made her rejection against the joint enshrinement known to an officer of the Regional Office and he reported this rejection to Mr. S, the president of the F Association, on about April 10, while the application by the F Association was filed on about March 31 in that year. However, according to the lower court findings, after the joint enshrinement of the twenty-seven dead SDF members including J by Gokoku Shrine on April l9, one of the Regional Office staff tried to persuade the Appellee by telling her that it was natural to deify J in the shrine because he had died for the State when she protested by telephone against the enshrinement and requested its withdrawal on July 6 of that year. And on July 22, when she questioned by telephone about their purpose of conducting the enshrinement, he replied that dead SDF members who were killed while on duty should be ranked as highly as a loyal retainer and that they had been deified so as to make SDF members in active service proud of their life and death regardless of the surviving relatives' religions. In addition, he answered to Mr. D, a pastor, who demanded withdrawal of the joint enshrinement on behalf of the Appellee, that Gokoku Shrine is an official religion so that the Japanese national, regardless of religions of their families, should be officially deified to Gokoku Shrine. Though these words were expressed two or three months later than the joint enshrinement, which words in themselves have nothing to do with the infringement alleged by the Appellee as the cause of action, they may cause suspicion against their religious neutrality and should be considered overdone. It is to be said that they should have practiced more self-discipline as public servants. We supplement the Court opinion as above in view of the case below. The opinion of Justice Rokuro Shimatani and Justice Tetsuro Sato is as follows: Although we agree with the conclusion of the majority opinion, we would like to express our view on this case because we disagree with their reasoning. I. The majority opinion stated as follows; that joint enshrinement by shrines should be conducted by their independent decisions even without an application therefor; that the joint enshrinement in this case was conducted as a result of Gokoku Shrine's decision to enshrine the dead SDF members killed while on duty; that the application was filed under the name of the F Association while the Regional Office staff had cooperated only through its office work so that the application should not be regarded as a cooperative action of its staff and the F Association nor be regarded as filed by the Regional Office staff. However, the original judgment (the quoted part of the judgment of the first instance included, the same hereinafter) have found the following facts with respect to the process in which Gokoku Shrine had come to the decision of joint enshrinement of the dead SDF members: 1 From the year 1963 till the year 1971 when the joint enshrinement of the case below was planned, the executives of SDF had publicly attended ceremonies of such enshrinement of deceased SDF members all over the country, as described in detail by the original judgment, and had expressed positive remarks therefor. And it is reasonably assumed that the Commander of the U Division of the Ground Self-Defense Force, Mr. E, and the director of the Regional Office, Mr. V, had expressed cooperation and support for filing an application of joint enshrinement of the F Association from both material and mental aspects. 2 On May 22, 1971, Mr. W, Chief of the General Affairs Division of the Regional Office of P Prefecture, wrote to the chiefs of General Affairs Division of SDF Regional Liaison Offices of each prefecture in Kyushu, except Nagasaki Prefecture, asking about the actual situation of joint enshrinement of deceased SDF members in each prefecture. Then they received answers in response stating that such enshrinement had already been done in every prefecture except Fukuoka, which answers, with copies of letters of inquiry, he showed to Mr. V and Mr. S. Mr. W wrote in these letters that "we would like to have answers in order to utilize as data for decision making at the Regional Office," which phrase showed the fact that the Regional Office made such an inquiry, which Mr. V knowingly allowed him to make in order to get data for the realization of joint enshrinement and acquired them. 3 Mr. S, the president of the F Association, explained to Mr. T, Gokoku Shrine's chief priest, about the actual situation of joint enshrinement in each prefecture of Kyushu based upon the answers of the inquiries and tried several times to persuade him to conduct a joint enshrinement in Gokoku Shrine. As a result, the priest basically agreed upon the enshrinement in autumn of the year l97l. According to these details found by the original judgment, though it was President S of the F Association who directly negotiated with the priest T of Gokoku Shrine, Mr. S did it under the strong support of the Regional Office, which negotiation he would not have conducted without such strong promotion and support, and also the priest T agreed on the enshrinement upon the F Association's application because he found that it was supported strongly by the Regional Office both materially and spiritually. The majority opinion that whether or not a Shinto shrine conducts joint enshrinement is decided according to its independent decision would be correct in the abstract. However, viewing the facts of this case, we can hardly admit that Gokoku Shrine had made its decision for the enshrinement on its own initiative, and it is inappropriate to assume that it was decided only at the F Association's persuasion. The shrine's decision was a result of the strong influence of the Regional Office and the F Association in the process and it seems that the shrine would not have decided for the enshrinement if it had not been for their strong support. While the original judgment found that President S had received a positive reaction for the joint enshrinement in the autumn of l970, this was nothing more than what Mr. S had felt and it was not found by the original judgment that the shrine had already decided for the enshrinement at that time. Thus it should be noted that the shrine's decision was given in the autumn of 1971 by the influence of the Regional Office and the F Association. The majority opinion also stated, as the reason why the application should not be regarded as a cooperative act of the Regional Office staff and the F Association, that the actual conduct of its staff in the process was nothing but the inquiry by Mr. W, Chief of General Affairs Division, as mentioned in 2 above, and that the Regional Office or its staff had never directly worked on Gokoku Shrine. But such inquiry would not be deemed as mere business correspondence nor cooperation in office work, since this was an expression of its intention to promote joint enshrinement in P Prefecture. And even if the Regional Office did not work on the shrine directly, it should be considered, as aforementioned, that the Regional Office did work on the shrine through the F Association, considering the whole details in this case. Therefore, the whole series of activity in the process of the application of the joint enshrinement, i.e., the approach toward Gokoku Shrine requesting enshrinement of dead SDF members, should be regarded as a cooperative activity of the Regional Office staff and the F Association. The original judgment, which took the same view with this regard, did not err on this point, whereas the majority opinion, which found that the Regional Office staff had cooperated with the F Association for the application merely through its office work and that the application was not filed jointly by them because it was filed under the name of the F Association only, is too formalistic. II. Next, the majority opinion has concluded that the conduct of the Regional Office staff did not constitute the religious activity provided by paragraph 3, Article 20 of the Constitution. However, as aforementioned in I above, Gokoku Shrine had not made its decision for joint enshrinement at its own initiative but it was a result of the influence of the Regional Office staff and the F Association. It should be construed that the separation clause of the State and religion in paragraph 3, Article 20 of the Constitution was provided with the aim of breaking off connection between the State and any religion in view of the fact that the national Shintoism had been in fact ranked as the State religion and that it was attended by many iniquities under the Meiji Constitution. Therefore any organ of the State is prohibited from approaching a specific religion or having connection with it and, thereby, it should be concluded that the conduct of the Regional Office staff in this case, the purpose of which was to realize religious event, i.e., the joint enshrinement of dead SDF members killed while on duty, did constitute the religious activity proscribed by the Article. Furthermore, though the joint enshrinement itself was the activity of Gokoku Shrine, it could be considered, reviewing the details of the process to the enshrinement found by the original judgment, that the Regional Office staff and the F Association, making their intention known to the shrine, had jointly realized the enshrinement. Thus the conduct of the Regional Office staff realizing the enshrinement in cooperation with Gokoku Shrine and the F Association should be deemed as nothing but religious activity. III. Nevertheless, as the majority opinion has explained, the religious activity of the State or its organs violating paragraph 3, Article 20 of the Constitution, the provision of separation of the State and religion, is not immediately deemed unlawful in relation to individual persons unless it has come to infringe his or her right or legal interest. On this point we agree with the majority opinion stating that the alleged personal religious right or religious privacy of the Appellee could not be recognized as a legal interest. Therefore, although differing in the reasoning, we concur with the conclusion of the Court that the original judgment and that of the first instance, both of which have affirmed the tort responsibility of the Appellant, should be quashed and the case of the Appellee should be dismissed. The opinion of Justice Toshio Sakaue is as follows: Though I agree with the conclusion of the majority opinion that the original judgment and that of the first instance should be quashed and the Appellee's case should be dismissed, I do not agree with their reasoning and would like to add my opinion. I. The majority opinion stated that the interest to live a religious life in a quiet religious atmosphere including the praying for the peace of the soul of one's dead spouse, which interest the original judgment recognized as the religious personal right, is of the nature that could not be recognized immediately as a legal interest, on which point I disagree with the majority opinion. The reasoning of the majority opinion for above statement is given as follows; that among individual persons if we admit legal relief on the grounds of infringement of religious feelings because one's religious peacefulness is disturbed by the religious activity of others, it will come to harm the religious freedom of the others instead; and that thus the guarantee of freedom of religion should be interpreted to be requiring tolerance for religious activity of others which is inconsistent with one's own religion unless such activity disturbs one's freedom of religion by compulsion or by incurring disadvantages. I would admit that this opinion of the Court would be correct as a rule. But this rule should not be applied to the case below, where the joint enshrinement of J by Gokoku Shrine did hurt the feelings of the Appellee, J's wife, and disturbed her peace of mind. It would be correct to say that only regarding historical figures etc. who have no living relatives any person is free to worship them or to pray for the peace of their souls with any religious rites under the guarantee of the freedom of religion. It would considerably contradict our common sense or socially accepted idea if anyone is free to worship or to pray for the deceased with a religious ceremony which is against the will of his or her surviving relatives such as his spouse, descendant or parents and if those relatives are not allowed to oppose and has to tolerate such activity of others as long as it is related to religion no matter how their mental peace are disturbed. Hence it should be noted that surviving relatives have a legal interest in maintaining their mental peace with their religious faith under the rule that no one is allowed to pray for the deceased with religious ceremony which is against the will of the surviving relatives, which interest should be a part of the religious personal right. The proposition established by the Court that "the freedom of religious activity such as to choose someone for an object of religious faith or to worship someone with one's religion and to pray for the peace of his or her soul" could be correct only when such activity is not against the will of his or her surviving relatives. Therefore it should be noted that one may seek legal remedies on the basis of his or her religious personal right when other people pray for his or her deceased relatives with religious ceremony which is against his or her will and thereby his or her peace of mind is disturbed. Though there might be an argument that other people's religious freedom would be infringed under this position, it goes without saying that even the constitutional freedom of religion does not cover such activity as infringes other people's personal rights. This kind of limitation is inherent in the guarantee of freedom of religion. Viewing the case below from the above position, I agree with the majority opinion recognizing that Gokoku Shrine is free to conduct J's joint enshrinement under the guarantee of the freedom of religion. However, because the enshrinement was conducted against the will of the Appellee, J's spouse, and she felt uncomfortable and her mental peace with her religious faith was hurt, it should be concluded that the Appellee's legal interest was infringed. Thus I disagree with the majority opinion that denied recognition of her legal interest. II. Nevertheless, it is possible that among close relatives different religions are believed in and they would hold different opinions on the religious ceremony for worship and prayers for the deceased, thus, those actual worship or prayers according to a relative's will might cause mental disturbance to other relatives. In the case below, according to the facts found by the original judgment, J's father, K, held a funeral for J with Buddhist rites and set his ashes in a Buddhist altar, then the Appellee took out a part of the ashes and had it enshrined in a charnel vault of a Christian church, and she attended the services for the dead. Hence it is easily assumed that K was uncomfortable with the Appellee's religious activity and his mental peace was disturbed. This is the very case where conflict of personal rights of surviving relatives occurred, in which case the tolerance that the majority opinion mentioned is required. Therefore, even if the religious ceremony of praying or mourning by other close relatives or those conducted according to their will is against one's will, he or she should be tolerant of it and, unless there is such special circumstances as to give priority to his or her mental peace, the infringement of his or her personal rights should not be considered unlawful since it is within the limitation to be endured. In addition, the same should be true when the religious ceremony of mourning for the deceased, conducted by someone else, is based on the will of the deceased himself. This is because the will of the deceased himself should be most highly respected as to how his death is to be mourned and his surviving relatives should endure the mental disturbance if any. An example of such a case would be that, since a dead person had believed in a religion other than that of surviving relatives, he had expressed his wishes on how his funeral should be conducted and thereby it was conducted accordingly. Regarding J's enshrinement, as the original judgment has found, his father K was happy about it and, though on August 14, 1972, had submitted a petition jointly with J's brother and sister to the F Association appealing for the continuance of his enshrinement despite the Appellee's request. Therefore it should be noted that, viewed objectively, his enshrinement was sustained by his surviving relatives, K etc. as a religious method to cherish and honor his memory. It is true that J's enshrinement was not held upon the request of K etc. nor were they asked their will beforehand. But, as such was the will of K etc. and there found no special circumstances to give priority to the mental peace of the Appellee, the spouse of the deceased, rather than to K, the father, it should be said that the infringement of her mental peace by the enshrinement is to be tolerated by her in the case below. 3 I agree with the majority opinion on those points that the application, which the Appellee claims to be the infringement, was an action of the F Association and could not be recognized as a cooperative action of the Regional Office staff and the F Association, that their staff should be deemed to have cooperated with the F Association for the application, and that the action of their staff cooperating with the F Association in the process of the application was not to be regarded as the religious action provided by paragraph 3, Article 20 of the Constitution. Hence the Appellee's claim has no grounds also on this point. I agree with the supplementary opinion of Justice Masuo Takashima, Justice Iwao Yotsuya and Justice Hisayuki Okuno on the point that the conduct of the Regional Office staff was overdone and they should have been more self-restrained as public servants. The dissenting opinion of Justice Masami Ito is as follows: I disagree with the opinion of the Court which quashed the original judgment and the judgment of the first instance and dismissed the case. The reasons are the following. I. This is a tort case in which the Appellee seeks compensation for mental damages allegedly caused by an action of the State. Though the case involves issues such as the freedom of religion and the separation clause, the main issue before us is whether the responsibility for tort damages exists or not, and finally it comes to the problem in which we have to consider mutual relationship between importance of the allegedly damaged interest and the way how the damages were caused. The first issue is whether or not the facts found by the original judgment (the quoted part of the judgment of the first instance included, the same hereinafter) constitute infringement of the Appellee's interests worth being protected by tort law. The majority opinion ruled that, to disturb other people's mental peace with their religious faith does not amount to damages of legal interest as long as it does not constitute infringement of the freedom of religion. Obviously the freedom of religion is a legal right, and it can be, under tort law, a legal interest to be damaged. As the majority opinion argues, we can find infringement of the religious freedom by the State when it treats someone discriminatively based upon religion, when it made religious coercion compelling someone to participate in religious practices or when it impedes or disturbs people's religious activity. However, in this case the Appellee has never been interrupted her religious activity nor been compelled to visit Gokoku Shrine, and hence we cannot find infringement of the freedom of religion itself. Then the next issue here is whether "the interest to live a religious life in a quiet religious atmosphere," as the original court said, can be a legal interest to be protected, which interest does not fall within the freedom of religion itself though it is related thereto. I am of the opinion that in modern society the interest of not being disturbed in one's mind by unwanted stimulus from others, i.e., the interest of mental peace, can be a legal interest under tort law. When this interest is acknowledged with respect to religion, we might call it the religious personal right or the religious privacy, though it is a matter of terminology. Arguably it might be based on Article 13 of the Constitution. In any case, apart from such terminology or constitutional ground, my view is that it would be sufficient to admit such mental peace with a religion as a legal interest under tort law. As society has developed, the scope of the protected interest by tort law also has been enlarged. This interest of mental peace should in the present be a legal interest. In the case before us, the Appellee wished to religiously treat her late husband, J, with her Christian belief, but, as a result of the joint enshrinement, he was enshrined against her will as a deity of Jinja Shinto, then she was requested to attend the Chinza-Sai ceremony and was falsely informed that she had donated Kagura-Ryo fee and that the memorial service of Meinichi-Sai would be held every year. Those incidents had exactly disturbed her mental peace and therefore it should be concluded that her legal interest was infringed. It is inappropriate to deny infringement of the legal interest because the enshrinement to Gokoku Shrine made the Appellee unpleasant at worst. I think that it is necessary to take a view of protecting minorities when confronting issues relating to mental freedom and that such view is especially important in judicial review. That is the reason why, even in democracy ruled by the majority, protection is required for interests that cannot be deprived of by the majority's will as fundamental human rights. In the realm of thought or conscience, what the majority approve is unlikely to be infringed even without constitutional protection, but such protection works for minorities' thought or conscience that the majority would hate. In the realm of religion, since religious indifference prevails in our country because of the miscellaneousness of our religious consciousness, it is not rare to annoy religiously sensitive minorities. Here we should refer to the opinion of Justice Fujibayashi (the additional dissenting opinion in the decision of the Grand Bench on July 13, 1977, cited by the majority opinion of the Court) which said that "even if the contention is derived from the minority's fastidiousness, their freedom of religion or of conscience should not be infringed by the majority's decision." In the case before us, it would not be impossible to comment that the Appellee is too fastidious in religion. However, there should be the minorities' interest to be protected and at least religious peace in one's mind should be recognized as a legal interest protected by tort law. Such mental peace could be recognized as one of the personal rights though it has not yet been firmly established as a legal interest, and it should be admitted that the extent of protection for this interest is lower than that for the freedom of religion which can be infringed by discrimination based on religion or by compulsion of specific religion. However this cannot be a basis to deny the position that religious peace in mind is a legal interest in tort law. II. The next issue is what conduct constitutes the infringement in this case. Though it was the enshrinement of the late J to Gokoku Shrine that disturbed religious peace of the Appellee, she asserts that the application therefor, which was the premise of the enshrinement, constitutes the infringement. If this assertion only indicates the application to Gokoku Shrine which was filed by the F Association under the name of its president on about March 31, 1972, it might be proper to find that such application was both in the name and in the substance the conduct of the F Association itself, as the majority opinion stated. However, in examining the infringement of this case, it is inappropriate to separate the application itself from a series of the previous activity toward it and it should be considered in the total circumstances of the process. The substance of the case would be misunderstood if the application itself on about March 31 is considered to be the infringement. We should understand that the application mentioned in the Appellee's cause of action includes the series of activity toward the application. It is crucial to examine the whole series of incidents especially in cases where damages for mental suffering for infringement of the personal right. Setting aside the issue whether or not the interest of religious peace in mind in this case can be deemed as a personal right, the whole series of activity should be examined here just as in the case in which personal human rights are at stake. III. For establishing tort responsibility causal relationship between infringement and damages is necessary. In the case below, viewing the series of activity toward the application as a whole as aforementioned in II above, the causal relationship between the application and the infringement of the Appellee's legal interest can be found. The majority opinion stated that joint enshrinement is to be conducted by independent decision of the shrines and therefore the application by the F Association did not constitute a legal prerequisite for the enshrinement and that Gokoku Shrine had already decided for it before the application was made, which opinion seems to deny causation between them. Although this view could be possible when seeing the application itself on about March 3l, 1972 separately, to do so would be inappropriate in this case, as aforementioned. According to the findings of the original judgment, the F Association once requested Gokoku Shrine to enshrine the dead SDF members killed in line of duty, but its chief priest had not accepted it, then in the autumn of l970 they received a positive reaction from the chief priest T and after a number of meetings in the autumn of 1971 the chief priest agreed on basic points. And after further meetings on details, the F Association applied for the joint enshrinernent on about March 31, 1972, on which application Gokoku Shrine eventually conducted the enshrinement. Thus the application, which was made after they had persuaded the chief priest, was "the finishing touch" of all the preceding negotiation and hence we cannot discuss its meaning without considering those preceding incidents. Therefore it should be concluded that the joint enshrinement and the application therefor had inseparable relations between each other and that under the total circumstances through the enshrinement the series of activity for persuading the shrine realized the enshrinement and that the causation between the application and the enshrinement should be established in this case. IV. The next important issue which would affect the evaluation of the facts in this case is whether a series of conducts toward the joint enshrinement were to be deemed as the cooperative activity of the Regional Office staff and the F Association as the original judgment has found, or to be deemed as an independent conduct of the F Association while the Regional Office staff cooperated with it merely by clerical works as the Court ruled. If viewed from the position that the application is separate from other incidents, it might not be unnatural to regard it as an independent conduct of the F Association under its name. However, I disagree with such position according to my view that the whole process toward the enshrinement should be considered. The facts the original judgment has established are as follows: (1) In March of 1971, at the meeting of affiliated organizations of SDF in C region held by Commander E, the Commander of the U Division of the Ground Self-Defense Force, he expressed approval for the joint enshrinement of dead SDF members and desired to step it up: (2) As Mr. V, the head of the Regional Office of P Prefecture attended this meeting, the Regional Office had come to be ready to promote the F Association's application for the enshrinement as one of its business to assist families of dead SDF members: (3) Already since about l963, the executives of SDF had publicly attended ceremonies of enshrinement of dead SDF members to Gokoku Shrines throughout the country and had expressed positive remarks therefor: (4) Mr. W, Chief of General Affairs Division of the Regional Office, discussed with the president, Mr. S, of the F Association on measures for realizing the enshrinement and wrote letters asking about the situation of such enshrinement with a phrase saying that he was preparing for policy-making of the Regional Office, to the chiefs of General Affairs Division of SDF Regional Liaison Offices of each prefecture in Kyushu (except Nagasaki Prefecture), where dead SDF members were said to have already been enshrined in Gokoku Shrines in each prefecture, and the responses he got were shown to the president, Mr.S, of the F Association: (5) Mr. A, a clerk of the Regional Office, upon Mr. S's request, negotiating with the chief priest T of Gokoku Shrine, drafted Hosai-Junsoku Regulation for the dead SDF members and drafted a prospectus for fund-raising, distributed its copies, and kept the raised money which amounted to about 800,000 yen: (6) Mr. A was asked by the president, Mr. S, to obtain necessary documents for the application and asked the chiefs of local branches and of districts of the Regional Office to collect from the families of the dead SDF members certified copies of deletion from the family register and certificates of death in line of duty. Although among those incidents the conduct of the Regional Office staff might be regarded as merely clerical if viewed separately, they can be considered to indicate the fact that the Regional Office staff were deeply committed to the process toward the enshrinement (the conduct of the Regional Office staff after the joint enshrinement was realized, namely, the incidents after the infringement, suggests that it was the Regional Office staff rather than the F Association that negotiated with the Appellee and tried to persuade her, by which fact we may assume that the Regional Office staff had been deeply committed in this matter before the enshrinement). In addition, the SDF F Association, a corporate juridical entity, conducts a variety of business for cooperating with SDF as a part of its business, and the relationship between the F Association and the Regional Office was very close, as the office of the F Association was housed in the building of the Regional Office, it had no full-time employees, most of its work was done by the Regional Office staff, which work was recognized to be official as assistance for affiliated groups and was done under directions of their superiors. Thus, even though the application was filed independently by the F Association in its form, it should be found that in the process the Regional Office had cooperated and supported it materially and mentally. And since the Regional Office staff were acting as above with the purpose or the goal to improve the social status of SDF members and to raise their morale by realizing the enshrinement, their intention should be deemed as more than a mere clerical assistance. According to those findings, it should be said that the application for the enshrinement in this case was the collaboration of the F Association and the Regional Office staff. The fact that the F Association had already started to plan for realizing the enshrinement before the Regional Office staff were involved is not an obstacle for the finding that the application was a cooperative action of both. It seems that the majority opinion explained, as one of the grounds for denying the collaboration, that the Regional Office or its staff had never directly worked on Gokoku Shrine. However, if the Regional Office or its staff had directly worked on Gokoku Shrine, it would obviously be unconstitutional and not to be done by the Regional Office. It is unreasonable to conclude that the conducts of the Regional Office or its staff in the process of the application were mere clerical assistance just because they did not do a thing prohibited by the Constitution. V. Assuming that the application for the joint enshrinement was a cooperative action of the F Association and the Regional Office staff, as stated in IV above, the next issue is whether we can conclude that such conduct of the Regional Office staff was illegal in relation to the Appellee's infringed interest. Here we need to consider how the conduct of the Regional Office staff is to be evaluated in reference to the principle of the separation of the State and religion prescribed in paragraph 3, Article 20 of the Constitution. And for considering this issue it is apparently necessary to take the conduct of the F Association into account. Because the fact that the Regional Office staff applied for the enshrinement in cooperation with the F Association means that they acted with the intention to take advantage of the conduct of the F Association as their own conduct, the conduct of the F Association should be identified as that of the Regional Office staff. The separation clause, which was prescribed in order to protect the freedom of religion substantially, is known as the institutional guarantee and is not directly guaranteeing the freedom of religion to individual persons. Hence activity of the State or its organs violating this clause is not necessarily unlawful against individuals. However, if the conduct of the Regional Office staff is to be found unconstitutional as violating the separation clause, the degree of the infringement is great because it violates the constitutional order and there is no interest to be protected on the part of the State, therefore it is obvious that the State is not in a position to demand tolerance of the victim. This is an important factor to be considered in judging the legality of the conduct of the Regional Office staff. Therefore we have to scrutinize how their conduct should be evaluated in relation to the separation clause, namely, the issue whether or not it constitutes the religious activity of the State prohibited by the Constitution should be examined. This Court has ruled that the religious activity provided by paragraph 3, Article 20 of the Constitution does not mean to include all the activities relating to religion but means only the activity whose relation with religion exceeds appropriate limitation in light of social and cultural conditions of our country and whose purpose has a religious meaning and whose effect is to promote, to facilitate, to accelerate, to oppress or to intervene a religion (the judgment of July 13, 1977 by the Grand Bench, supra). The majority opinion follows this ruling. This is a three-pronged test for scrutiny of religious activity of the State prohibited by the separation clause, which test requires to examine the purpose, effect and extent of entanglement of the activity. This would be a correct standard in the abstract. The point is its application. Remembering that the ideal of paragraph 3, Article 20 of the Constitution, achieved by the lessons of past experiences in the country, is to serve the perfect separation of the State and religion, to apply this test to narrow the range of religious activity prohibited to the State would negate the purpose of the Constitution and should be inappropriate. It has often been pointed out that, while in European and American countries fundamental human rights have originated from the protection of the freedom of religion which is regarded as the core of the whole human rights, in Japan, together with the co-existence of various religious feelings in society, people in general do not have much concern about religion and lack sensitiveness for the freedom of religion. Under this situation, to loosen the separation principle should not be justified, and rather the principle should be applied strictly. Besides, though it is proper to take various circumstances into account in determining whether it constitutes the religious activity, when the individuals' religious interest is argued we should be more careful in emphasizing how is the evaluation by the public of the conduct or how is its religious effect or influence to them, because it could be a suppression against religious minorities by the majority, which case should be distinguished from the precedent of the Court cited above in which case religiousness of a kind of conventional events, "Jichin-Sai", a ceremony of laying cornerstone, was at issue. From this point of view, the issue whether the conduct of the Regional Office staff did constitute the religious activity provided by paragraph 3, Article 20 of the Constitution should be examined. On this issue the majority opinion stated that joint enshrinement is to be conducted upon an independent decision of the shrines and that the application by the F Association did not constitute a legal prerequisite for the enshrinement and concluded that the specific conduct of the Regional Office staff should not be considered as the religious activity provided by paragraph 3, Article 20 of the Constitution though they did relate to religion. However I disagree on this point. Firstly, as to the meaning of the application for the enshrinement, it obviously did not constitute a petition in a legal sense. However, it is inappropriate to conclude that the application was only to notify Gokoku Shrine the names of the dead SDF members and the fact that their death occurred in line of duty and to express the desire for their enshrinement. Taking the whole process of negotiation with Gokoku Shrine for the application into consideration, as aforementioned in II above, it should be found that the application and the enshrinement were close and inseparable with each other. I disagree with the majority opinion on this point. The next issue is the purpose of the application. It is evident that the important part of their purpose was secular, namely, they intended to promote the social status of SDF members and to raise their morale. If such intention could be seen as the main purpose of the application, their religious nature would be weakened. But the application for the enshrinement is, at the same time, to enshrine the spirits of the dead SDF members as deities with Shintoism, which ceremony completely differs in nature from those which are customary for society, such as Jichin-Sai etc. To deny the religious nature of the purpose of the application would improperly slight the objective nature of the conduct. Thirdly, in its effect, the application has apparently no suppressive, intervening or interfering effect on other religions including Christianity. The point is whether it helps, facilitates, accelerates or promotes Shintoism, especially for Gokoku Shrine. It is true that the application was not to subsidize any specific religion directly, nor to propagate, to disseminate or to educate a doctrine of any specific religion. Hence it does not constitute help, assistance or promotion for a religion in an ordinary sense. However, the application to Gokoku Shrine for the enshrinement with Shintoism, not with other religions, had the effect of favoring and promoting Shintoism and thereby it should be considered as assistance or promotion for a specific religion. Thus it should be concluded that the conducts of the Regional Office staff was beyond appropriate limitation since they did file the application of the enshrinement, the nature of which is as stated above in cooperation with the F Association. Therefore the conduct of the Regional Office staff should be deemed to constitute the religious activity provided by paragraph 3, Article 20 of the Constitution. According to my position stated above, though the damaged interest of the Appellee in this case has not yet been matured quite firmly for legal protection, the conduct of the Regional Office staff, which was not to be permitted in their mode, had no reason to be tolerated by the Appellee, and therefore their conduct should be declared unlawful against her. VI. As explained above, I am of the opinion, dissenting from the majority opinion, that the tort responsibility of the Appellant should be established in this case, and the original judgment which was in favor of the Appellee should be affirmed. Thus the contention of the Appellant should be rejected and the Jokoku appeal should be dismissed.

Justice Koichi Yaguchi Justice Masami Ito Justice Keiji Maki Justice Mitsuhiko Yasuoka Justice Reijiro Tsunoda Justice Rokuro Shimatani Justice Masuo Takashima Justice Akira Fujishima Justice Tsuneo Ouchi Justice Yasukazu Kagawa Justice Toshio Sakaue Justice Tetsuro Sato justice Iwao Yotsuya Justice Hisayuki Okuno Due to retirement, Justice Atsushi Nagashima is unable to sign and seal. Presiding Judge, Justice Koichi Yaguchi