Separating shrine and state: why you shouldn’t expect a court to stop the Yasukuni visits

Article 20 of the Constitution of Japan says that “freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority… The State and its organs shall refrain from religious education or any other religious activity.” Article 89 further states that “no public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.”

Like the First Amendment in the United States, these rules are just full of fun! If you think about it, they could make the Emperor illegal. (I don’t actually agree with this notion; it’s just one interpretation that could be drawn.) But they won’t make the Emperor illegal, nor will they make Koizumi’s visits to Yasukuni Shrine illegal… and even if the visits could be considered illegal, the courts aren’t going to stop them! More detailed explanation after the jump.

Religion and government can’t be completely separate from each other: there’s bound to be contact from time to time, so there has to be a way to figure out what breaks the wall between religion and government. In the U.S., we test laws for compliance based on the 1971 rule of Lemon v. Kurtzman: “first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.”

Japan adopted a similar rule for government activities in the 1977 Supreme Court case of Kakunaga v. Sekiguchi: government activity should not have a religious purpose, nor should it promote, encourage, oppress or interfere with a religion.

One of the more recent applications of this rule was Anzai v. Shiraishi (1997), which involved a total of ¥135,000 in donations to the Yasukuni and Gokoku Shrines, given by Ehime Prefecture officials under the direction of the governor. The donations were challenged in court, and the defense argued that they were meant as “administrative assistance,” a “social courtesy” for families of soldiers who had died at war. Hiroaki Kobayashi of Nihon University explained the final ruling in the Brigham Young Law Review:

The Supreme Court held whether a particular government activity is constitutionally impermissible must be evaluated on the basis of the “purposes and effects of the given conduct in light of the social and cultural circumstances of our country.” If, given appropriate social and cultural consideration, the challenged action has a religiously significant “‘purpose’ and has the ‘effect’ of assisting, promoting, oppressing, or intervening in religions,” it is constitutionally impermissible.

Applying this test to the donations by the Governor of Ehime, the Court concluded that the ceremonies held by both the Yasukuni and Gokoku Shrines were religious in nature and that even if the governor did not have a religious purpose in offering the donations, known as tamagushiryo, the shrines used the donations to advance religious purposes. Therefore, “the average person [would be] impressed that the prefecture especially supports this specific religious group and that this religious group is special and different from other religious groups.” Concluding that “it is possible to mourn for the war dead and to console [their] bereaved families without such a special relationship with a specific religion,” the Supreme Court specifically rejected the social courtesy argument the defendants raised in the trial court. In summary, because the “purpose” of offering tamagushiryo could not avoid being classified as having religious significance, and because the “effect” of the tamagushiryo would be assistance and promotion by the state of a particular religion, albeit indirectly, the Court held that offering tamagushiryo was constitutionally impermissible.

What about Koizumi’s Yasukuni visits? The Chiba District Court and Tokyo High Court both said that he makes the visits as a private citizen, so there was no constitutional issue. When the Osaka High Court ruled that the visits could be considered unconstitutional state action, they also said that the plaintiffs were not really affected, which made the entire constitutional issue immaterial. The Takamatsu High Court came to the same conclusion shortly afterward.

Interestingly, the latter decisions are very similar to how the U.S. Supreme Court blew off the constitutionality of the Pledge of Allegiance. In effect, both countries’ courts said “we won’t consider constitutionality unless you can prove that you were actually hurt.”

One can only assume that proving harm from the Yasukuni visits will be extremely difficult. Even assuming that harm can be established, and that the visits are considered a form of government activity, the courts will still have to look to the purpose and effects of the visits to determine their constitutionality. “Defining Shinto as a traditional social convention,” Kobayashi argues, “provides the ultimate solution to this problem because then the visit to Yasukuni Shrine is an act of social courtesy rather than an act of religious significance.”

In short, it seems highly unlikely that the Prime Minister’s trips to Yasukuni will ever be banned outright by the courts. If anyone wants to stop the visits, they’ll have to look outside the courtroom, to public opinion and diplomatic pressure.

20 thoughts on “Separating shrine and state: why you shouldn’t expect a court to stop the Yasukuni visits”

  1. Very well put. Although remember that courts are split on this — some have said they’re fine, some have said they’re not. The bigger problem in this case is a lack of precedent. Precedent in and of itself isn’t so hot, but it does make courts be consistent. Japan has no state-federal division of the courts, so they all should be following the same law and relatively similar reasoning.

  2. Well, article 20 of the constitution couldn’t make the emperor illegal because they spend the entire first 8 articles clarifying the emperor’s role.

    And Curzon, am I correct that precedent is not binding in Japan’s legal system? Certainly it’s helpful reference for future decisions, but it doesn’t close the issue as much as in the US.

  3. The precedent in lower courts do not bind Japan’s legal system, but the precedents that the Supreme Court of Japan made actually bind the lower courts. Only the Supreme Court can overturn their precedent. The article 312 of the Civil Procedure Law and the artricle 405 of the Criminal Procedure law in Japan says that a party can appeal to the Supreme Court with following reasons. First, when there is a violation of the Constitutional Provision. Second, when the decision by the lower court violated the precedents of the Supreme Court. So, it binds the lower court’s decision.

    Mutantfrog, You are right. Emperor is not a subject to be illegal. His act can be a matter of judicial review if his act violates the constrain by the Constitution. However, the existance of the Emperor is totally different subject from the article 20.

    I think diplomatic pressure cannot stop Prime Minister’s visit to the shrine in Japan. Prime Minister Koizumi is not a leader who care about diplomatic pressure on a matter of Yasukuni issue.

    Prime Minister’s visit can never be stopped. I do not know if ever Prime Minister need to stop visiting there. But, the important thing is Osaka High Court’s decision gave the executive branch a great pressure and Prime Minister really paid attention to the way of visiting it. If the government enacted a law that force Japanese people to visit there, the law does not comply with the test of “Purpose and Effect Measure” and the court surely overturn the law. If Prime Minister spend grant to the Yasukuni Shrine, the court will let the shrine return it or let the Prime Minister pay remedy in the taxpayer suit. In this sense, it is necessary to use court and flight inside the court.

    However, it is impossible to chain down Prime Minister’s visit to the Shrine because his right as a civilian still exists and should be protected under the constitution in principle. There is no rational reason to deprive him of his constitutional right although his rights can be constrained but must be protected. In that sense, the suit for the government liability in regard to the PM’s Yasukuni’s Shrine that has no reason as long as Prime Minister enercise his right and does not gives any damage to the petitioners. It is almost impossible for people to use the system of the government liability on this kind of issue. There is no damage to the petitioners. They often claim they got psychologic(al) damage but it does not meet requisite of the tort. The suit without standing will never reach to a judgment on the merits of a case.

    So, the most important thing in the Yasukuni Shrine issue is whether the executive branch will act within the framework of their power. So, fighting inside the courtroom is very necessary in order to make Check and Balance work properly.

  4. Shuhei states this a bit more directly than I managed to. If Koizumi were doing more than just GOING there, there could be some form of redress based on the Constitution. But what he does now is outside the sphere of judicial power, at least under the current system.

    When I talk about “making the Emperor illegal,” I mean keeping him from exercising his special status in Shinto, which is still lingering around even though Showa renounced his deification after World War II. The linked article goes into the issue in much more depth than I particularly care to.

  5. Joe, the problem with what you’re saying is that historically, the entire position of the Emperor in Japan is derived from what more or less amounts to being the high priest of Shinto. The very earliest rulers of Yamato, described in ancient Chinese texts before Japan was literate, were shamans whose political power was derived from their mystical power.

    In a way, the Japanese Emperor has always been more of a religious role than a political one; there have been very few periods in history when the Emperor could actually be said to be the ruler of Japan in anything but name. Japan may have adopted the appearance of China’s Imperial system during the Nara period, but despite all of the trappings, the Japanese ‘Emperor’ was always a substantially different figure than any Chinese emperor.

    As for being a living god, that’s something that as far as I know was never heavily emphasized before WW2 and may not have even existed as a concept in ancient times. Sure, the Yamato clan was always said to have been descended from Amaterasu, but all of the noble clans put a kami as the progenitor of their line.

  6. Hey, if you want to debate the issue, debate it with that kid from Penn. I don’t go around telling countries what to do with their head of state. I’m just the messenger.

  7. Joe, I am not sure if Koizumi is doing outside the sphere of judicial power. As I said, his last visit was well done and he or his aides really paid attention to the decision of the Osaka High Court. So, his visit really looked like “Secular Purpose”. In that sense, the judicial power really influences his decision to visit.

    I do not think it is right that the judicial power intervenes into Koizumi’s freedom of belief that are protected under the article 19, even though his idea is expressed outside as a form of visit. However, if he has an intention of spread the belief of the Yasukuni Shrine and the court can recognize it, it will violate “the purpose and effect measure”. As long as Prime Minister does not do that, this matter should not be a problem of the constitution. At least, he continues to claim that his main reason to visit there is to pray for the people who died during the WWII. So, this should not be recognized as “religious purpose” and the primary effect of visiting there should not be recognized as “encouraging shintoism” as long as he pays attention to the way he visits.

    Even though the status of the Emperor is related to the Shintoism, it has been a basis of Japan’s history and cannot seprate the figure of the Emperor from the Shintoism. This does not become an issue of the article 20, even if someone bring his status into a issue of the separation of state and religion. It is impossible to have the complete separation of state and religion. When the President of the United States swear an oath in the Inauguration, you use the bible. In the court, when a witness swear an oath, you will also use it. So, eliminating the Emperor’s special status from the Shintoism is eliminating the special status of the bible in the Christianity, which cannot be done. So, the court used “Secular Purpose Measure”. The Emperor’s status itself is “secular purpose”. If he actively act to spread his special status in the Shintoism, it can be the violation of the article 20 because the executive approves his act (the article 7 gives the executive its authority, so it will be a matter of the executive action, too).

  8. Actually, Shuhei, swearing on the Bible is an interesting comparison. It’s not mandatory at all, just an old custom that’s followed. In fact, witnesses in court don’t have to be under an oath at all, much less sworn on the Bible, as long as they demonstrate that they understand the penalty for lying in court. (For some people, like small children or the mentally disabled, this is the only way to establish their competency to testify.)

    I’ve actually heard a story about a Japanese military officer who was tried in an American court after the war. He refused to swear on the Bible and demanded that a Shinto text be used instead. The court said “fine,” and the officer was given the oath “Japanese-style.”

    Anyway, Koizumi is playing it safe right now. If he wanted to, he could ignore the rulings altogether and continue visiting in an official capacity. There isn’t a good basis upon which anyone could sue to stop him, because really, nobody’s being hurt. If he ignored the rulings althogether, though, he would appear to be snubbing the judges in Osaka and Takamatsu. I see it this way: by continuing his visits, Koizumi is giving a bit of deference to these court decisions (which don’t bind him and probably never will), and at the same time, showing his resolve to keep visiting Yasukuni. So it’s a good political solution.

  9. Actually, Koizumi cannot ignore the ruling of the high court at this time. There was no clear ruling about PM’s visit to the Yasukuni Shrine until the Osaka High Court made a few months ago.

    There is an interesting reason why he cannot ignore the decision of the high court. There is a section called, “Cabinet Legislation Bureau(”. This Bureau has insane power. This is the second Guardian of the Constitution in Japan. This Bureau interprets the Constitution and their interpretation will be the official executive understading of the Constitution. Of course, they really pay attention to the decision of the Judiciary. There are 15 seats in the Supreme Court as Justices but one seat is always dominated by a person who was the top of this Bureau. They often become the Chief Justice in Japan. The Bureau may ignore the decision of the district court, but they cannot ignore the High Court as long as there would no Supreme Court precedent that overturn the decisions of the lower courts.

    Even Koizumi cannot act differently from what this Bureau says. A good example is a collective defense. This bureau says that it is a violation of the article 9 although the Supreme Court had not said anyting before. (You know, they always adopt the theory of “Sorveign Act”).

    The reason that Koizumi and the LDP are seeking to amend the article 9 is because this bureau never accept the collective defense under the current constitution. However, the reason why this bureau does not accept is that they are worrying about the Supreme Court would say it would be unconstitutional. The bureau does not want to take a responsibility on that their interpretation does not conply with that of the Supreme Court.

    So, as long as the Cabinet Legislation Bureau exists, even Koizumi cannot do whatever he wants on a consitutional ruling.

  10. by the way, Joe, I have a question.

    Can it be a problem to have the bible for swearing an oath in the Presidential Inagueration in America? I mean, was there any case that someone made lawsuit agaist the government with the reason of violating “Separation of Government and Religion”?

    Just for my curiosity though.

  11. No, it isn’t a problem. As I said above, the Bible is not required by law. Presidents have historically used the Bible to take their oath, and have also historically added “so help me God” to the end of the oath, but neither are mandatory.

    Even if they were mandatory, I’m not sure how a lawsuit would succeed. I mentioned the Pledge of Allegiance lawsuit in the post above: that was dismissed by the Supreme Court because there was no showing of damages due to the use of “under God” in the pledge.

  12. But the lawsuit challenging forcing children to say the anthem many years ago DID succeed. How are those teachers fired for refusing to say Kimi Ga Yo doing?

  13. as long as I know, there is no teacher who is fired although there are teachers who are put into re-training. I do not follow it perfectly, but as I mentioned before, public servants’ right can be constrained. Since teachers are also public servant, their rights to refuse to sing can be constrained, too.

    I think the tokyo district court said that puting them into the training is fine although it would be a violation of constitutional rights if the tokyo government fires them. She is not fired but she received an official warning because she did not follow. This issue is the same. her right under 19 can be protected but her act not to play a piano for the ceremony was expressed outside from her belief. So it can be constrained because she is a public servant.

    if you are interested in the case of being fired (as hypothetical issue), I am sure that Jehovah’s Witnesses Rejecting Kendo case is a leading case. Check it out.

  14. Another point is that while Japanese judges are not appointed as they are in America, the government gets some say over which positions they have in the system. If I recall correctly, the Supreme Court justices, who are appointed by the Cabinet, decide which courts the other judges serve on. Some studies show that socialist judges tend to get pushed into more “backwater” posts, while the more LDP-friendly capitalist/nationalist judges are more likely to get positions on the bench in Tokyo. Which makes sense; the government likes to pick conservative justices, and the conservative justices like to keep conservative judges in prestige spots.

    This is just what I recall reading, and I could be wrong as I’m too lazy to look it up right now.

  15. Shuhei, I’d love to get some more background on it. If you like, we can post it on the front page instead of buried in the comments section.

  16. Mutantfrog, i will write about the case and will send it to you. i cannot guarantee when it will be but i will try to make it as soon as possible. And send it to your e-mail.

    But Justices and judges in Japan, people have been saying like that, Joe. But, I think the recent situation is dramatically changing. And although you said capitalist/nationalist judges, i think it is wrong. there is not so many capitalist/nationalist judges in Japan. The classical problem of career judges in Japan is that they tend to put self-constrain over the power of judicial review. Japan hass totally different political system from that in America. It is Parliamentary system, so the judiciary try to avoid from using judicial review because they believe that the judiciary needs to respect the will of the people that are delegated to the legislative branch. Since the ruling party leader becomes the PM, so it gives the impression that judges are in favor of “LDP” and being nationalist or capitalist. However, judges are very conservative but not quite nationalist or capitalists. Especially in the field of civil law, there are many dinamic decisions that are quite liberal. It is also true that civil law profession judges are often make liberal rulings.

  17. Thank you Shuhei! I’m looking forward to it. And thanks for the info about the Japanese courts; I know very little about how they really operate.

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