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.