Tsu City Groundbreaking Ceremony case - International Center for ...

Found on the Japan Supreme Court Website at:
http://www.courts.go.jp/english/judgments/text/1977.7.13-1971.-Gyo-Tsu-.No..69.html
Date of the
judgment
1977.7.13
Case number 1971 (Gyo-Tsu) No. 69
Reporter Minshu Vol.31, No.4, at 533
Title
Case name
Result
Court of the
Second
Instance
Summary of
the judgment
Judgment on a case concerning the meaning of "religious activity"
under Article 20, Paragraph 3 of the Constitution
The Tsu City Shinto Groundbreaking Ceremony Case
Judgment of the Grand Bench; quashed and decision handed down by
the Supreme Court
Nagoya High Court, judgment of May 14, 1971
1. The constitutional principle of separation of religion and State
requires that the State be religiously neutral, but it does not prohibit all
State connection with religion. Rather, it prohibits State connection
with religion that is deemed, when Japanese social and cultural
conditions and the purpose and effects of the State activity are taken
into consideration, to exceed a reasonable standard consonant with the
fundamental objective of the system, namely, the guarantee of religious
freedom.
2. "Religious activity" under Article 20, Paragraph 3 of the Constitution
does not mean all conduct of the State and its organs that is related to
religion, but conduct whose purpose has a religious significance and
whose effect is to subsidize, promote, or, conversely, suppress or
interfere with religion.
3. A city-sponsored groundbreaking ceremony for a municipal
gymnasium conducted under Shinto rites is undeniably connected to
religion. However, when the totality of circumstances as stated in the
judgment is considered, the ceremony is deemed to have the wholly
secular purpose of marking the start of construction by a rite performed
in accordance with general social custom to pray for a stable
foundation for the building and accident-free construction work, and its
effects are not deemed to subsidize or promote Shinto, or, conversely,
to suppress or interfere with any other religion, and does not constitute
"religious activity" in the meaning of Article 20, Paragraph 3 of the
Constitution.
References Constitution of Japan, Articles 20 and 89

A Jokoku Appeal was filed by the Appellant seeking reversal in part of
the holding handed down by the Nagoya High Court on May 14, 1971,
on a petition for annulment of an administrative disposition, etc., Case
(Gyo-Ko) No. 8 (1967) of the Nagoya High Court. The Jokoku
Appellee sought a judgment dismissing the Jokoku Appeal.
Main text of
the judgment
Reasons
The judgment in part of the Court of Appeals that found against Jokoku
Appellant is quashed. The intermediate appeal of Jokoku Appellee
against that part is dismissed. The costs of the intermediate appeal and
of the Jokoku Appeal shall be borne by Jokoku Appellee.
1. On Ground (1) for Jokoku Appeal by Appellant's attorney Horiya
Yoshio:
The language of the petition indicates that the original suit was brought
against the Jokoku Appellant, Kakunaga Kiyoshi, in his capacity as a
private individual. Therefore, this Court rejects Jokoku Appellant's
argument, which rests on the untenable premise that the original suit
was brought against the Mayor of Tsu City.
2. On the supplement to the above Ground (1) for Jokoku Appeal:
The records clearly show that Jokoku Appellee completed the
necessary petition for audit when he brought the original suit. This
Court rejects Jokoku Appellant's argument that the Court of Appeals
erred in its decision.
3. On Ground (2) for Jokoku Appeal by Appellant's attorney Horiya
Yoshio and Ground (4) for Jokoku Appeal by Appellant's attorney
Higuchi Tsunemichi:
Clearly, an expenditure of public money is illegal not only when the
expenditure itself violates Article 89 of the Constitution, but also when
the reason for the expenditure is prohibited under Article 20, Paragraph
3. This Court rejects Jokoku Appellant's contention since it wrongly
assumes that the expenditure of public money in the present case would
be illegal only if it violated Article 89 of the Constitution.
4. On Ground (3) for Jokoku Appeal of Appellant's attorney Horiya
Yoshio, Grounds (1) and (3) for Jokoku Appeal of Appellant's
attorneys Okuno Kenichi, Tanabe Tsunesada, and Hayasegawa
Takeshi, and Grounds (1) and (3) for Jokoku Appeal of Appellant's
attorney Higuchi Tsunemichi:
(a) Background of This Case
(i) This case contests the legality of the expenditure by Jokoku
Appellant, as Mayor of Tsu City, of the sum of 7,663 yen in municipal

public funds (4,000 yen in remuneration to Shinto priests and 3,663 yen
for offerings) to hold a groundbreaking ceremony at the site of the Tsu
City Gymnasium in Sendo Town, Tsu City, on January 14, 1965
(hereinafter "Groundbreaking Ceremony"). The city, a local public
entity, sponsored the event and used city employees as ushers. The
ceremony was conducted in accordance with Shinto rites and presided
over by four Shinto priests, including the chief priest of Oichi Shrine,
which is a religious corporation.
(ii) The court of first instance ruled that the Groundbreaking Ceremony
is the same ceremony that has been conducted since ancient times
under the name jichinsai (Shinto groundbreaking ceremony), and that
while it undeniably appears to be a Shinto religious ceremony, it is
actually a folk ceremony, not a religious activity for the purpose of
propagating or disseminating Shinto, and therefore does not violate
Article 20, Paragraph 3 of the Constitution. Further, that Court found
that the payment of expenses for the Groundbreaking Ceremony was
not intended to assist a particular religious organization, and that the
payment of 4,000 yen to the Shinto priests, in particular, was merely a
fee for services and thus did not violate Article 89 of the Constitution
or Article 138, Paragraph 2 of the Local Autonomy Law.
However, the Court of Appeals ruled that the Groundbreaking
Ceremony cannot be viewed merely as a social observance or folk
ceremony but should be considered a religious rite specific to Shrine
Shinto. The Court further ruled that the Constitution adopts the
principle of complete separation of religion and State and declared the
State to be secular with the intention of making a clear separation
between the two. Accordingly, the Court of Appeals ruled that the
prohibition of "religious activity" in Article 20, Paragraph 3 of the
Constitution covers not only positive acts designed to propagate or
disseminate a particular religion, but all acts that are expressions of
religious faith, including any "religious act, celebration, rite or
practice" as stipulated in Paragraph 2 of Article 20. The Court thus
found that the Groundbreaking Ceremony constituted a religious
activity prohibited under Article 20, Paragraph 3, and that the
expenditure of public money by Jokoku Appellant as mayor was
therefore illegal.
(iii) Jokoku Appellant contends, in sum, that the Court of Appeals erred
in determining the nature of the Groundbreaking Ceremony and the
significance of the principle of religion-State separation when it held
that the ceremony constitutes a religious activity prohibited under
Article 20, Paragraph 3 of the Constitution, since the ceremony is
merely a folk practice which, under the name jichinsai, has been
traditionally accepted and performed as a general social custom and
which does not constitute a prohibited religious activity. Jokoku

Appellant contends that the Court of Appeals erred in its interpretation
and application of Article 20, and that these errors clearly influence the
Court's conclusion.
(b) The Judgment of This Court
(i) The Constitutional Principle of Separation of Religion and State
The Constitution guarantees the freedom of religion in a narrow sense
in the provisions "Freedom of religion is guaranteed to all" (Article 20,
Paragraph 1, section 1) and "No person shall be compelled to take part
in any religious act, celebration, rite or practice" (Article 20, Paragraph
2). It also establishes provisions based on the principle of separation of
religion and State (hereinafter "Provisions on Religion-State
Separation"), viz., "No religious organization shall receive any
privileges from the State, nor exercise any political authority" (Article
20, Paragraph 1, section 2); "The State and its organs shall refrain from
religious education or any other religious activity" (Article 20,
Paragraph 3); and "No public money or other property shall be
expended or appropriated for the use, benefit or maintenance of any
religious institution or association . . . " (Article 89).
In general, the principle of religion-State separation has been
understood to mean the secularity or religious neutrality of the State; in
other words, because questions of religion and faith are matters of
individual conscience that transcend the dimension of politics, the State
(including local public entities; the same applies hereinafter), as the
holder of secular authority, should place such questions beyond the
realm of public power and refrain from interfering in matters of
religion. The relationship of religion and State differs between
countries and is a product of their historical and social conditions. The
Constitution of the Empire of Japan [1889] (hereinafter "Meiji
Constitution") contained a provision that guaranteed freedom of
religion (Article 28), but the same Article restricted that guarantee
"within limits not prejudicial to peace and order, and not antagonistic to
[the peoples'] duties as subjects." Moreover, State Shinto was virtually
established as the national religion; belief therein was sometimes
demanded, and certain other religious groups were severely persecuted.
Thus, the Meiji Constitution's guarantee of religious freedom was
incomplete.
This situation changed at the end of World War II. On December 15,
1945, the General Headquarters of the Supreme Commander for the
Allied Powers (GHQ-SCAP) issued the "Directive on the Abolition of
Governmental Sponsorship, Support, Perpetuation, Control, and
Dissemination of State Shinto and Shrine Shinto" (known as the Shinto
Directive) to the Japanese government. This assigned to Shrine Shinto
the same legal status as other religions, and also specified concrete
measures to separate all religions, including Shinto, from the State.

In light of the deleterious effects of the close ties that had existed
between the State and Shinto since the Meiji Restoration, the
Constitution of Japan, promulgated on November 3, 1946, guaranteed
unconditional freedom of belief and further strengthened that guarantee
by establishing the Provisions on Religion-State Separation.
In Japan, unlike Christian or Muslim countries, various religions have
developed alongside one another and coexisted on many levels. In this
environment, an unconditional guarantee of religious freedom, on its
own, would not be sufficient to assure freedom of belief; it was also
necessary to establish the Provisions on Religion-State Separation in
order to eliminate all ties between the State and religion. Thus, the
Constitution should be understood as establishing the Provisions to
secure State secularity and religious neutrality by adopting the ideal of
complete separation of religion and State.
The Provisions on Religion-State Separation are essentially an
institutional guarantee; that is to say, they do not directly guarantee
freedom of religion per se, but attempt to guarantee it indirectly by
securing a system in which religion and the State are separate.
However, religion involves more than private, personal belief; it is
accompanied by a broad array of external social aspects and thus comes
into contact with many sectors of social life, including education, social
welfare, culture, and folk customs. As a natural result of this contact,
the State cannot avoid association with religion as it regulates social
life or implements policies to subsidize and support education, social
welfare, or culture. Thus, complete separation between religion and
State is virtually impossible in an actual system of government.
Furthermore, to attempt complete separation would inevitably lead to
anomalies in every area of social life. For example, it would cast doubt
on the propriety of extending to religiously affiliated private schools
the same subsidies that are given to nonreligious private schools, and it
would call into question the propriety of State assistance to religious
groups for the maintenance and preservation of cultural assets such as
shrine and temple buildings, Buddhist statues, and the like. To deny
such support would amount to imposing a disadvantage on these
entities because of their religious affiliation; in other words, it would
amount to discrimination on religious grounds. Similarly, to prohibit all
prison chaplaincy activities of a religious nature would severely restrict
inmates' freedom of worship. As these examples demonstrate, there are
certain inherent and inevitable limits to the religion-State separation
guaranteed by the Provisions. When the principle of religion-State
separation is embodied in an actual system of government, given that
the State must accept some degree of involvement with religion
according to the particular societal and cultural characteristics of the
nation, the question then becomes [a balancing of interests]: under what
circumstances and to what degree can such a relationship be accepted
while remaining consistent with the guarantee of religious freedom

which is the fundamental objective of the system. From this
perspective, the principle of religion-State separation, which forms the
basis of the Provisions and serves to guide their interpretation, demands
that the State be religiously neutral but does not prohibit all connection
of the State with religion. Rather, it should be interpreted as prohibiting
conduct that brings about State connection with religion only if that
connection exceeds a reasonable standard determined by consideration
of the conduct's purpose and effects in the totality of the circumstances.
(ii) Religious Activity Prohibited by Article 20, Paragraph 3
Article 20, Paragraph 3 of the Constitution stipulates that "The State
and its organs shall refrain from religious education or any other
religious activity." Using the above discussion of the principle of
religion-State separation to interpret this language, "religious activity"
should not be taken to mean all activities of the State and its organs
which bring them into contact with religion, but only those which bring
about contact exceeding the aforesaid reasonable limits and which have
a religiously significant purpose, or the effect of which is to promote,
subsidize, or, conversely, interfere with or oppose religion. The prime
example of such activities is the propagation or dissemination of
religion, such as religious education, which is explicitly prohibited in
Article 20, Paragraph 3; but other religious activities like celebrations,
rites, and ceremonies are not automatically excluded if their purpose
and effects are as stated above. Thus, in determining whether a
particular act constitutes proscribed religious activity, external aspects
such as whether a religious figure officiates or whether the proceedings
follow a religiously prescribed form should not be the only factors
considered. The totality of the circumstances, including the place of the
activity, whether the average person views it as a religious act, the
actor's intent, purpose, and degree (if any) of religious consciousness,
and the effects on the average person, should be taken into
consideration to reach an objective judgment based on socially
accepted ideas.
Let us now examine the relationships between Paragraphs 2 and 3 of
Article 20. Both concern religious freedom in the broad sense, but
Paragraph 2, which states that no person shall be compelled to take part
in any religious act, directly guarantees freedom of religion in the
narrow sense as well, that is, against deprivation of that freedom by the
majority. Paragraph 3, on the other hand, seeks to indirectly guarantee
the freedom of religion by the direct prohibition of a certain range of
activities of the State or its organs, thereby guaranteeing a system that
separates religion and State. As indicated above, limits inhere in the
latter guarantee, which should be determined in light of the average
person's attitudes since the issue is one of State involvement with
religion in the social context.

As shown above, the two paragraphs differ in purpose, intent, and
scope, and they guarantee different freedoms. Thus, the interpretations
of "religious act," etc. in Paragraph 2 and "religious activity" in
Paragraph 3 proceed from different perspectives. Not all of the acts
covered by Paragraph 2 are necessarily included in the activities
prohibited by Paragraph 3. Even if a particular religious celebration,
rite, or ceremony is deemed not to be included in "religious activity"
under Paragraph 3, if the State coerced a person to participate who
would otherwise choose not to take part on grounds of religious belief,
this would, of course, infringe that person's religious freedom and
would violate Paragraph 2. For that reason, the above interpretation of
"religious activity" prohibited under Article 20, Paragraph 3 does not in
itself endanger the freedom of belief of religious minorities.
(iii) The Groundbreaking Ceremony
We will now consider whether the Groundbreaking Ceremony
constitutes a "religious activity" as prohibited by Article 20, Paragraph
3.
As described by the Court of Appeals, the Groundbreaking Ceremony
was clearly a rite performed at the start of construction of a building to
pray for a stable foundation for the building and safe construction
work. According to the legally relevant facts found by the Court of
Appeals, the form of the ceremony was religious. It was conducted by
Shinto priests, who are professional religionists, at a ceremonial site of
a special type that was set up for the occasion; the priests wore
religious garments and followed a ritual specific to Shrine Shinto, using
special ceremonial implements. Moreover, it can be assumed that the
priests who performed the ceremony did so out of religious conviction.
Thus, the ceremony undeniably involved religion.
Nevertheless, although the groundbreaking ceremonies (known as
jichinsai, among other names) that are traditionally performed at the
start of construction work to pray for a stable foundation and workers'
safety had religious origins in their intent to pacify the gods of the land,
there can be no doubt that this religious significance has gradually
waned over time. In general, although the ceremony includes prayer for
safety and a firm foundation at the start of construction, the
proceedings have become a formality perceived as almost completely
devoid of religious meaning. Even if the ceremony is performed in the
style of an existing religion, as long as it remains within the bounds of
well-established and widely practiced usage, most people would
perceive it as a secularized ritual without religious meaning, a social
formality that has become customary at the start of construction work.
Although the Groundbreaking Ceremony was conducted as a Shrine
Shinto rite, for most citizens, and for the Mayor of Tsu City and others
involved in sponsoring the event, it was a secular occasion with no

particular religious meaning, because such a ceremony is well within
the bounds of general usage widely observed over many years.
Furthermore, in actual practice, the construction workers themselves
who are particularly concerned with safety consider it indispensable, as
a general custom, to mark the start of work with a ceremony sponsored
or attended by the owner of the building and including a ritual like the
one in this case. In light of this practice, together with the public
attitudes discussed above, it is clear that the building owner had a very
secular motive for holding the customary groundbreaking ceremony:
meeting the demand of construction workers to observe a social
formality that has become customary at the start of work, thereby
ensuring its smooth progress. Since there were no special
circumstances affecting the Groundbreaking Ceremony, there is no
reason to assume that the motive of the Mayor of Tsu City and others
involved in sponsoring the event was any different from the typical
motive of building owners described above.
The Japanese public in general does not display a great interest in
religion. They reveal, instead, a mixed religious consciousness: as
members of the community, many people are believers in Shinto, and
as individuals, believers in Buddhism. They feel no particular
inconsistency in using different religions on different ceremonial
occasions. Furthermore, Shrine Shinto is characterized by its close
attention to ceremonial form and the virtual absence of outreach
activities such as the active proselytizing seen in other religions. These
circumstances taken together with the public attitude to groundbreaking
ceremonies discussed above render it unlikely that a groundbreaking
ceremony at a construction site, even when performed by Shinto priests
according to the rituals of Shrine Shinto, would raise the religious
consciousness of those attending or of people in general, or that it
would have the effect of assisting, fostering, or promoting Shinto. This
is equally true even when the sponsor of such a ceremony is the State,
acting in the same capacity as a private citizen. It is inconceivable that
such sponsorship would result in the development of a special
relationship between the State and Shrine Shinto, or that it would
ultimately lead to Shinto regaining the status of a State religion, or
otherwise threaten religious freedom.
Considering the totality of the circumstances, although the
Groundbreaking Ceremony is undeniably connected with religion, we
deem it to be a secular ceremony conducted in accordance with general
social custom at the start of construction work to ensure a stable
foundation and workers' safety. Its effects do not subsidize or promote
Shinto, or, conversely, suppress or interfere with any other religion.
Therefore, it does not constitute prohibited religious activity under
Article 20, Paragraph 3 of the Constitution.
(iv) Summation:

The Court of Appeals erred in interpretation and application of Article
20, Paragraph 3 of the Constitution when it reached a determination
different from the above. Since those errors clearly influence the
Court's conclusion, Jokoku Appellant's argument is reasonable.
5. Conclusion
Accordingly, the portion of the judgment of the Court of Appeals that
found against Jokoku Appellant should be quashed. Regarding that
portion, this Court determines as follows: As stated above, the
Groundbreaking Ceremony does not in any manner violate Article 20,
Paragraph 3 of the Constitution, nor does it violate the second section
of Paragraph 1 of Article 20, since it does not accord any privilege to a
religious organization. Further, in light of the purpose and effects of the
Groundbreaking Ceremony, the nature and amount of the expenses
disbursed, and other factors, the payment of ceremony expenses cannot
be regarded as assistance from public funds for a particular religious
organization or religious group; it therefore does not violate Article 89
of the Constitution, nor does it violate Article 2, Paragraph 15 or
Article 138, Paragraph 2 of the Local Autonomy Law. The petition of
Jokoku Appellee against Jokoku Appellant, which is based on the
premise that the payment is illegal, is thus unsustainable and is
dismissed. This Court affirms the judgment of the court of first
instance, which reached the same conclusion. The portion of the
intermediate appeal finding against Jokoku Appellant is dismissed.
Therefore, in accordance with Article 7 of the Administrative
Litigation Law, Articles 408, 396, and 384 of the Code of Civil
Procedure, and, with regard to liability for the costs of the proceedings,
Articles 96 and 89 of the Code of Civil Procedure, this Court finds as
stated in the Main Text of the Judgment above. The dissenting opinion
of Justices FUJIBAYASHI Ekizo, YOSHIDA Yutaka, DANDO
Shigemitsu, HATTORI Takaaki, and TAMAKI Shoichi follows. The
supplementary dissenting opinion of Justice FUJIBAYASHI Ekizo
follows the main dissenting opinion.
DISSENTING OPINION OF JUSTICES FUJIBAYASHI EKIZO,
YOSHIDA YUTAKA, DANDO SHIGEMITSU, HATTORI
TAKAAKI, AND TAMAKI SHOICHI
1. The Constitutional Principle of Separation of Religion and State
Freedom of religion is the matrix from which the spiritual and
intellectual freedoms of modern humanity have developed. This
important basic human right was a precursor of other civil liberties and
formed the nucleus thereof. As a fundamental principle of the life of

the spirit, it is universally guaranteed by the constitutions of modern
nations. In Japan, the Constitution attempts to provide a complete
guarantee of religious freedom. The first section of Paragraph 1 of
Article 20 states unconditionally, "Freedom of religion is guaranteed to
all." The second section of Paragraph 1 then prohibits the granting of
any privileges to or the exercise of any political authority by religious
organizations; Paragraph 2 prohibits compulsory participation in
religious activities; Paragraph 3 prohibits the State and its organs from
engaging in religious activity; and Article 89 prohibits financial aid to
any religious organization or group.
A declaration of unconditional religious freedom is insufficient by
itself to guarantee that freedom. To accomplish that guarantee it is
essential, above all, to sever all ties between religion and State. As long
as such ties exist, there is a great risk that they will lead either to
religious influence over the State or, conversely, to State interference in
religious matters and, ultimately, suppression of religious dissent and
violation of the freedom of belief. This risk is clearly illustrated by the
history of Japan since the Meiji Restoration.
In the first year of the Meiji Period (1868), the new government
proclaimed the unity of religious ritual and government administration.
It reinstated the classical Office of Shinto Worship and announced a
plan to establish Shinto as the State religion, whereby all the shrines
and Shinto priests in Japan were placed under direct government
control. It then issued a series of orders for the separation of Shinto and
Buddhism, which were designed to purify Shinto and make it
independent while attacking Buddhism. Meanwhile, the government
maintained virtually unchanged the Tokugawa shogunate's policy of
suppression of Christianity.
In 1870, the government issued the Proclamation of the Great Doctrine,
which declared the "way of the gods" [as the guiding principle of the
State]. In 1872, the Ministry of Religion appointed Shinto priests to the
Agency for Spiritual Guidance and issued "three rules for teaching": (1)
Observe a spirit of reverence for the gods and love of country; (2)
Reveal the laws of nature and the way of humanity. (3) Revere the
Emperor and obey the Imperial court. The government thus
promulgated a political ideology imbued with religious character,
centered on Emperor worship and belief in Shrine Shinto, and took
steps to have the people instructed therein.
In 1871, the government declared that shrines were sites for the
observance of "national rites" and were not the private property of
individuals or families (Grand Council of State Decree No. 234). In the
same year, it issued the Grand Council of State Decree No. 235,
"Allocations for Government Shrines and Other Shrines and
Employment Regulations, Etc., for Shinto Priests," which established a
ranking system for all the shrines in Japan (except Ise Shrine). Shrines
were divided into kansha or public shrines (Imperial household shrines

and national shrines) and shosha or miscellaneous shrines (urbanprefectural,
domain [han], prefectural, and village shrines). The decree
also gave Shinto priests the status of public officials, a privilege not
accorded to other religions. In 1875, the government prohibited joint
Shinto-Buddhist proselytizing and ordered each religious sect to
proselytize independently. While giving verbal assurances to Shinto
and Buddhist sects that it would allow freedom of belief, in 1882 the
government abolished the status of Shinto priests as officials of the
Agency for Spiritual Guidance and ordered them to cease officiating at
funerals (Ministry of Home Affairs Notices [Otsu] No. 7 and [Tei] No.
1). By requiring Shrine Shinto to engage solely in ritual observances,
the government was able to adopt the official position that it was not a
religion, and on that basis it consolidated a system which, in effect,
established it as the national religion or State Shinto.
Article 28 of the Meiji Constitution (promulgated in 1889) guaranteed
the freedom of religion, but only "within limits not prejudicial to peace
and order, and not in conflict with [the peoples'] duties as subjects."
The Meiji Constitution's guarantee of religious freedom was far from
complete, for although the law officially countenanced no state religion
and accorded legal equality to all religions, State Shintoism had
actually already been established, which effectively gave Shrine Shinto
the status of a national religion, as described above, and citizens were
expected to worship at and revere shrines as a civil duty.
Furthermore, Law No. 24 of 1906, the Law Concerning Expenses of
Imperial Household Shrines and National Shrines, stipulated that the
national treasury would be responsible for those expenses, and Imperial
Ordinance No. 96 of 1906, "Matters Concerning the Costs of Offerings
by Urban-Prefectural and Lower-Ranking Shrines," stipulated that local
public bodies would finance the costs of the ritual offerings of food,
drink, cloth, and paper made by local shrines. Thus, the shrines were
also made financially dependent on the State or local public entities.
The de facto status of Shrine Shinto as a State religion, therefore, was
maintained until Japan's defeat in 1945. During that period, other
religious groups such as Omoto, Hitonomichi, Soka Kyoiku Gakkai
[the prewar name of Soka Gakkai], and the United Church of Christ in
Japan were subjected to strict governmental control and repression.
Religions were officially sanctioned only insofar as they did not
conflict with the concept of a State Shinto-centered "national polity."
Worship at shrines was, in effect, compulsory; not only was this an
egregious violation of the freedom of religion guaranteed under the
Meiji Constitution, but State Shinto also formed the spiritual basis of
militarism.
On December 15, 1945, GHQ-SCAP issued the "Directive on the
Abolition of Governmental Sponsorship, Support, Perpetuation,
Control, and Dissemination of State Shinto and Shrine Shinto" (the
Shinto Directive) to the Japanese government, ordering the complete

separation of Shrine Shinto from the State and specifying concrete
measures toward that end. Shrine Shinto was to be placed on the same
legal standing as all other religions; thus, all religions, including
Shinto, were to be separated from the State. There was to be no further
special protection and supervision of Shinto by the State and public
officials, nor public financial aid to Shinto and its shrines. Household
altars and other physical symbols of State Shinto were banned from
public facilities.
The Constitution of Japan incorporated the ideas of the Shinto
Directive in contemplation of the bitter experience of the harmful
effects of close association between the State and Shinto under the
Meiji Constitution's guarantee of religious freedom. That guarantee, as
shown above, was incomplete despite the importance of freedom of
belief as a basic human right. The separation of religion and State is
essential to secure that right. Thus, in addition to the unconditional
guarantee of religious freedom in the first section of Paragraph 1,
Article 20, the Constitution of Japan adopted the provisions cited above
to secure a complete guarantee.
Reviewing the above history, the principle of religion-State separation
embodied in the second section of Paragraph 1 and Paragraph 3 of
Article 20 and in Article 89 would require absolute separation. In other
words, the State should be secular: religion and the State are mutually
independent with no connecting ties, and the State neither allows
religious influence in its affairs nor interferes in religious matters.
The Majority Opinion holds that complete separation of religion and
State is merely an unrealizable ideal. It argues that attempting a
complete separation will result in anomalies in all areas of social life,
and claims that there is an inherent limit to the extent of separation
guaranteed by the Provisions on Religion-State Separation. It argues,
further, that while the separation principle requires State neutrality, it
does not require the State to refrain from all contact with religion. In
the majority's narrow interpretation, conduct that brings connection
with religion is proscribed if that connection, when considered in the
totality of circumstances, is deemed to exceed a standard of
reasonableness based on Japanese social and cultural conditions.
The problem with this approach, however, is that the meaning of State
connection with religion in the Majority Opinion is not entirely clear,
and it is also unclear when such contact would exceed reasonable
limits. In our opinion, the majority's interpretation of the separation
principle poses the danger that State-religion ties will be readily
tolerated and the guarantee of religious freedom itself will be
weakened. Furthermore, from our perspective of an absolute separation
of religion and State, no anomalies would arise if such a separation
were attempted, since activities, like those cited by the majority, which
it claims would be prohibited leading to anomalies in all areas of
society, would in fact be permissible when interpreted under the

principle of equality and other constitutional requirements.
2. Religious Activity Prohibited by Article 20, Paragraph 3 of the
Constitution
Article 20, Paragraph 3 of the Constitution states, "The State and its
organs shall refrain from religious education or any other religious
activity." Given the significance of religion-State separation described
above, the definition of "religious activity" here should not be limited
to dissemination of religious doctrines, cultivation of converts, and the
like, but also, as a matter of course, should include the act of holding
religious celebrations, ceremonies, or rites. The definition should not
be restricted as the majority contends. Religious celebrations,
ceremonies, and rites are expressions of religious faith, and sponsorship
of such activities by the State or its organs is clearly contrary to the
State secularism signified by the principle of religion-State separation;
inquiry into the concrete effects of the activity is not necessary, as the
majority contends. However, this is not to deny that, in certain
instances, the State or its organs may undertake what could be deemed
to constitute religious activity, either because failure to do so would
restrict citizens' religious freedom or because it is enjoined by
constitutional principles such as equality before the law.
Even from the above standpoint, it is true that Article 20, Paragraph 3
would not prohibit a ceremony or rite which had religious origins but
which, over time, had completely lost its religious meaning and
coloration and become a purely secular custom. But even customary
observances that retain their religious nature, that is, religious
customary observances, should naturally be included in the category of
prohibited religious activity. (Interpreting and applying Article 20,
Paragraph 3 as described above should essentially determine whether a
custom is secular, not testing whether it meets the ethnological
definition of a custom as stated by the Court of Appeals.)
3. The Nature of the Groundbreaking Ceremony
Based on the above, we will now examine whether the Groundbreaking
Ceremony constitutes religious activity prohibited under Article 20,
Paragraph 3 of the Constitution.
(a) The legally relevant facts found by the Court of Appeals are
outlined as follows.
(i) At the site of the Groundbreaking Ceremony, two tents were
erected. Chairs for the attendees were placed in rows inside the front
tent, while red and white curtains surrounded the rear tent, sacred
bamboo was placed at its corners, and sacred ropes were hung around it

on three sides to mark the ceremonial area. At the center rear of that
area, an altar consisting of a plain wood table bearing ritual offerings to
the gods was erected. A wooden food-offering stand bearing fruit and
the like was placed at the front of the area. Sacred branches were
placed on a table to the left before the altar, while the sacred
implements of sprays of the sakaki tree, a sickle, and a hoe, were
placed on a table to the right. Also, upright stems of dry bamboo were
inserted in an area of raked sand at the front left of the altar; in front of
this area, the order of ceremonies was displayed.
(ii) At the site entrance, a city employee poured water on the hands of
each attendee from a ladle decorated with paper ties and ceremonial
paper wrapped around its handle, in what is known as a "hand-washing
ceremony" (the minimum purification rite in Shinto). The attendees
then entered the site of the ceremony.
(iii) The Groundbreaking Ceremony commenced at 10 A.M., with Tsu
City employee Ito Yoshiharu serving as master of ceremonies.
Miyazaki Kisshu, the chief priest of Oichi Shrine, which is a religious
corporation and the local tutelary shrine, officiated in the following
Shinto ritual, assisted by three other Shinto priests, all wearing the
prescribed robes and using ceremonial implements specific to shrines.
The priests conducted various rituals before the assembled participants:
they performed a ritual waving of sakaki branches to purify them; they
bowed before the altar and called on divine spirits including Oichi
Hime-no-mikoto, the main god of Oichi and its tutelary deity, to
descend to the offerings placed there; they presented offerings of fruit
and other foods. The officiating priest then stood before the altar and
read aloud a congratulatory address praying to the divine spirits for the
safe completion of the construction work. The site was then ritually
purified and offerings of rice were scattered. The Mayor performed a
ritual gesture of cutting the dry bamboo with the sickle, representing
the clearing of wasteland, and the official in charge of construction
inserted the hoe in the sand, a ritual gesture that represents the leveling
of wasteland. Then, one by one, the Mayor, President of the Municipal
Assembly, and others came before the altar, offered sakaki sprigs that
were handed to them by a priest, clapped their hands and bowed. The
food offerings were then removed from the altar, and a ritual was
performed inviting the gods to return to the heavens.
The attendees then bowed, the ceremony ended on schedule at
approximately 10:45 A.M., and all proceeded to an adjacent tent on the
western side for a celebratory banquet known in Shinto as a naorai.
(ii) It is clear from the above that the groundbreaking was a religious
ceremony conducted according to rituals distinctive to Shrine Shinto
and presided over by a Shinto priest. Setting aside questions of

nomenclature, it is true in general that ceremonies to mark the start of
construction work have been conducted for many years and have
become largely secularized over time. However, as can be seen above,
the Groundbreaking Ceremony itself had a very strong religious
atmosphere; it cannot possibly be considered a secular convention.
Moreover, even if we consider the concrete effects of the ceremony as
the majority did, it is obvious that a local public entity's sponsorship of
such an event results in preferential treatment and subsidization of
Shrine Shinto. If such activities are condoned, there is a clear risk of a
close relationship developing between local public entities and Shrine
Shinto. We cannot agree with the majority, which admitted the
ceremony's religious connection and did not deny its religious nature,
but which treated its religious significance lightly and underestimated
its effects. In our opinion, the Groundbreaking Ceremony clearly
constitutes religious activity under Article 20, Paragraph 3. Moreover,
there are absolutely no grounds as described above for allowing such
activity in this case. The Groundbreaking Ceremony therefore violates
Article 20, Paragraph 3 of the Constitution and should not be permitted.
(d) Conclusion
The Groundbreaking Ceremony violates Article 20, Paragraph 3 of the
Constitution. The judgment to that effect by the Court of Appeals was
correct and the Jokoku Appeal should be dismissed.
SUPPLEMENTARY DISSENTING OPINION OF JUSTICE
FUJIBAYASHI EKIZO
1. The State and Religion
The freedom of religion is a great principle of modern democratic
states; it is the quintessence of a spirit of tolerance striven for and won
through centuries of political and intellectual conflict. In the historical
process of establishing religious freedom, the separation of religion and
State has come to be considered its indispensable prerequisite. The
principle of religion-State separation consists of two main points:
(a) The State should neither bestow special financial or institutional
support nor impose special restrictions on any religion. In other words,
the State should adopt an equally neutral attitude toward all religions.
(b) The State should not interfere in any way in the religious beliefs of
its citizens. Religious belief should be left to the freedom of each
individual. Whether to believe in a religion, and which religion, if any,
are matters of private choice to be decided by each citizen individually.
With the establishment of these fundamental principles, ties between
the State and a particular religion have come to be rejected, and the
State is required to concern itself solely with secular matters. However,
this does not completely eliminate problems of the State's relationship

with religion. All States have a spiritual or conceptual foundation for
their existence, and because religion, too, is a product of the human
spirit, the State, while recognizing the principle of religious freedom,
must not itself be indifferent or insensible to religion. The principle of
religious freedom is not a sign of State disregard for religion; on the
contrary, it must spring from respect for religion.
The existence of the State must be based on truth, and the truth must be
protected. However, it is not the State that determines what the truth is,
nor is it the people. No matter how democratic the age we live in, no
one would consider the truth something to be decided by a majority
vote of the people. What is true is determined by truth itself, and it is
proven true by history, by the long experience of humankind. The truth
is its own evidence, but it is not affirmed as true simply by an assertion
that it is true. Humanity can confirm the truth only by means of history.
For religion, also, we must say that truth is self-evident. Thus, a true
religion can and should stand without support from the State or other
secular authority. In matters of religion, it is precisely this
independence which should be respected.
2. The Democratization of Religion
The "Shinto Directive" of GHQ-SCAP concerning State Shinto and
Shrine Shinto contained three important points which became the
foundations of Article 20 of the Constitution:
(a) It recognized shrines as religious in nature. There is, admittedly,
some room for doubt as to whether this is completely consistent with
the popular sentiment of the Japanese people. Shrine Shinto has little of
the thought system characteristic of a religion; in many respects, it
expresses simple folk feelings about life. However, some shrine rituals
and acts performed by Shinto priests can be recognized as religious
ceremonies, and that is the issue in the present case.
(b) Since Shrine Shinto was deemed to be a religion, the Directive
ordered that State administrative and financial protection of shrines be
abolished in keeping with the principle of separation of religion and
State.
(c) It was understood that once Shrine Shinto was thus separated from
the State, the people were free to believe in it as a religion.
After the Meiji Restoration (1868), as the government set out to
construct a new Japan, it imported institutions and culture from the
West, but as a spiritual foundation it relied on Japan's ancient way of
the gods. Having launched its modernization campaign in this
disorganized fashion, the government then decided, merely for reasons
of international and domestic convenience, that Shrine Shinto did not
constitute a religion, so as not to infringe religious freedom, while in
actual fact according it the status of a national religion. Thereafter,

political affairs and education in Japan were conducted in line with this
policy. Regardless of the personal beliefs of the individuals concerned,
it became customary for newly appointed Ministers of State to worship
at Ise Shrine; local public officials were ordered to take part as Imperial
messengers in the major festivals of Imperial household shrines and
national shrines; school groups, led by teachers, visited shrines for
worship; and local residents, as people under the protection of their
community deity, were asked to make donations for shrine festivals.
These requirements were, in general, accepted peacefully as customary
practices for the following reasons:
(a) Shrine Shinto was a simple religion. It had no organized theology;
its view of the divine was elemental, and it had very few supernatural
or miraculous components. Generally speaking, all is nature and the
human. Because of this simplicity, the general public readily accepted
shrine worship, since it was not perceived as something that infringed
the principle of religious freedom.
(b) Historically, there had been few conflicts between Japanese
Buddhism and Shrine Shinto, either in matters of theory or in daily life;
on the contrary, they had coexisted side by side, cooperating and
intermingling. The doctrine that the Japanese gods were incarnations of
Buddhas and bodhisattvas provided a theoretical basis for the harmony,
unity, and coexistence of the deities of the two religions. Some
Buddhist temples had shrines dedicated to a Shinto guardian deity
within their grounds, and most Japanese were, at the same time, both
Buddhists and parishioners of their local Shinto shrine. In other words,
they were content to believe in Buddhism as individuals and worship at
shrines as a people, without finding this duality strange in any way.
This was due partly to the missionary policies of Buddhism and partly,
as stated above, to the simple religious nature of shrines. In any case, a
thousand years leading a dual life combining Buddhism and Shrine
Shinto meant the Japanese peoplehad little difficulty accepting the
State's policy toward Shrine Shinto after the Meiji Restoration.
(c) The religious consciousness of the Japanese people developed
within a tradition of Shrine Shinto and Buddhism and was therefore not
sufficiently sensitive to the question of religious freedom. As the two
religions are polytheistic or pantheistic, not monotheistic like
Christianity with its personal God, they did not encourage a sense of
the individual person or stimulate the development of concepts of basic
human rights. Thus, they did little to raise awareness of the importance
of religious freedom. This historical circumstance is probably a major
reason why the issue of shrine worship was not viewed as a serious
infringement of the freedom of religion.
3. Religious Activities Prohibited under Article 20, Paragraph 3 of the
Constitution

The First Amendment of the United States Constitution ("Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; . . .") was probably the greatest
influence on the enactment of Paragraphs 1 and 3 of Article 20 of the
Constitution of Japan. The provisions in the Japanese Constitution go
even further in their proclamation of the principles of religious freedom
and separation of religion and State and indeed are so exhaustive that
there is nothing comparable among the constitutions of the world.
Paragraph 3 provides, "The State and its organs shall refrain from
religious education or any other religious activity." When the
significance of the principle of separation of religion and State, which
should be the guiding standard for interpreting this paragraph, is
considered, the provision should be construed as forbidding the State
and its organs from engaging in any activity that has a religious
meaning, not only positive activities with a religious purpose, such as
disseminating a religion or cultivating believers, but also religious
celebrations, ceremonies, and rites. The substantive reasons for thus
broadly construing the meaning of religious activity are as follows.
It is said that virtually no people known to history has been without a
religion. Of course, "religion" does not necessarily mean the same to
scholars of religion or religious history as it does to scholars of law.
Over the ages, theologians, philosophers, and those who study religions
scientifically have offered so diverse an array of definitions of religion
that there are said to be as many definitions as there are scholars.
Hence, it is hardly surprising that "religion" is not defined anywhere in
the laws of Japan.
In the United States, also, not only is there no definition of "religion" or
"religious" in the Constitution, but the Supreme Court has not defined
those terms when dealing with various religions or religion-like
entities. Instead, it has been satisfied with stating that, whatever the
meaning of these words, the First Amendment does not prohibit
governmental conduct that intervenes in acts that interfere with duties
to society or destroy good order. In other words, the U.S. Supreme
Court found that because law is created to control acts, law cannot
interfere in religious belief or opinions as such, but it can control
religious activity. To put this another way, the Court decided to treat all
religions and religion-like entities as religions under the Constitution,
but to deal only with their external manifestations. (Cf. [ORIGINAL
CHAPTER TITLE NOT CONFIRMED: "What Is a Religion?"] in
Konvitz, Milton R. Religious Liberty and Conscience: A Constitutional
Inquiry, New York, 1968.)
In my opinion, the words "religion" and "religious" in our Constitution
also should be interpreted as broadly as possible. When these terms are
strictly defined or narrowly construed, the guarantee of Article 20 does
not to extend to other religious acts or other acts of an analogous
nature; this not only results in severe restriction of religious freedom,

ut also opens the way to close ties between religion and State.
4. The Nature of the Groundbreaking Ceremony at Issue
The Majority Opinion recognizes that a groundbreaking ceremony is a
rite to pray for accident-free construction work, etc., and that it includes
the act of prayer. But it states that in the present day, both to average
citizens and to the sponsors of a groundbreaking, it is a secular
ceremony because it has become a mere formality accompanying the
construction of a building. In other words, the majority consider it a
customary practice.
Of course, we must recognize that there are various observances which
were originally religious but which no longer have any religious
meaning in society. The Japanese still place New Year's pine
decorations outside their gates to bring good luck, although the custom
seems to be declining year by year. We can also readily accept that
customs like the Dolls' Festival and Christmas trees are meaningful as
family treats that parents provide for children, or as observances to
foster goodwill within a group. These customs have probably lost all
religious significance.
But can we regard the performance of the Groundbreaking Ceremony
under the circumstances described by the Court of Appeals merely as a
way of bringing good luck or a form of entertainment? As the majority
notes, those who are involved in the building work and who are thus
particularly concerned with safety consider it indispensable to hold a
groundbreaking ceremony incorporating rites as in this case, and the
sponsors comply with this demand, regardless of their own wishes, to
ensure the smooth progress of the work. It is inconceivable that the
ceremony in the present case was held merely for the sake of the
banquet that traditionally follows it. Something is here that cannot be
understood in terms of mere customary practice. In other words, if
consideration for workers' safety was the only concern, then given
proper supervision and today's advanced building techniques,
scientifically, nothing further would be necessary. However, a desire to
ensure safety beyond human powers makes it necessary to rely on
something other than human agency. If this is not religious, what is?
Even if the Mayor of Tsu City, who sponsored the Groundbreaking
Ceremony, is not a believer in any religion, the ceremony does not lose
its religious character, inasmuch as it was an essential requirement to
satisfy the construction personnel's wish for a level of safety not
attainable by human powers. Similarly, if a child holds a religious
funeral for his or her parent, the funeral is still a religious ceremony
even if that child is not religious.
In the present case, a master builder and carpenters did not conduct the
ceremony according to folk practices; four Shinto priests who came in
their professional capacity from a shrine conducted it. The priests were

not merely performers in an entertainment. According to the facts
ascertained by the Court of Appeals, rituals are of the highest
importance in Shrine Shinto as its central form of expression. All
Shinto scholars emphasize this. It would even be true to say that the
religious activities of shrines consist of holding festivals. Rituals in
Shrine Shinto are gestures of giving thanks to the gods and expressions
of faith in their purest form. In Shrine Shinto, the activities for religious
enlightenment consist of festivals, first and last, and any educational
activity that paid no attention to ritual would be considered
meaningless. In other words, in Shrine Shinto ritual is of primary
significance, and ceremonies or ritual observances are religious acts of
the highest order.
5. Human Rights of Religious Minorities
The majority holds that even though the Groundbreaking Ceremony
was performed according to the rituals of Shrine Shinto by Shinto
priests, who are professional religionists, it would not have raised the
religious consciousness of those attending or of people in general. This
argument probably arises from Shrine Shinto's weak proselytizing
capacity. But even if this is so, it is also a fact that some people feel a
sense of discomfort around such ceremonies. An individual or private
corporation is, of course, free to sponsor a groundbreaking ceremony in
accordance with Shrine Shinto or some other religion; that is what
religious freedom means. In the present case, however, it is my
impression that too little attention has been paid to the fact that a local
public body sponsored the ceremony. When the power, prestige, and
financial support of the State or a local public body is present behind a
particular religion, this gives rise to indirect pressure on members of
minority religions to submit to the religion that has received public
recognition.
Even if the costs of the ceremony are modest, and even if the general
citizenry is not forced to participate, that is not the issue. (The
Groundbreaking Ceremony was attended by 150 local dignitaries as
guests; the official in charge of construction was present, Tsu City
employees acted as master of ceremonies and ushers, and a total of
174,000 yen in public monies was spent, including the 7,663 yen in
expenses for the ceremony which is the subject of Jokoku Appellee's
petition.)
In short, the State and local public entities should not become involved
in such matters. Even if the minority opinion may be viewed as
hypersensitive, it is not permissible to infringe that minority's freedom
of religion or of conscience by a majority decision. For therein lies the
human right of spiritual freedom, the ultimate minimum that must be
protected as indispensable to the maintenance of democracy. Thomas
Jefferson wrote that religious coercion is clearly distinguished from

coercion in all other matters, for one may become rich using methods
that one is forced to follow, and one may be restored to health by
medicines taken against one's will, but one can never be saved by
worshipping a god in whom one does not believe. The State and local
public entities should avoid matters related to religious belief or
conscience that cause social conflict or public controversy. Herein lies
the true significance of the principle of separation of religion and State.
6. The above is my opinion which is in addition to the Dissenting
Opinion. In view of the significance of this Judgment, I wish to note
that in Sections 1 and 2 of this opinion I have quoted extensively from
"Kindai Nihon ni okeru shukyo to minshushugi" (Religion and
democracy in modern Japan) in Yanaihara Tadao zenshu (Collected
works of Yanaihara Tadao), vol. 18, p. 357 ff.
Grand Bench of the Supreme Court
Presiding
Judge
Justice FUJIBAYASHI Ekizo
Justice OKAHARA Masao
Justice AMANO Buichi
Justice KISHIGAMI Yasuo
Justice ERIKUCHI Kiyoo
Justice OHTSUKA Kiichiro
Justice TAKATSUJI Masami
Justice YOSHIDA Yutaka
Justice DANDO Shigemitsu
Justice MOTOBAYASHI Yuzuru
Justice HATTORI Takaaki
Justice TAMAKI Shoichi
Justice KURIMOTO Kazuo
Justices SHIMODA Takeso and KISHI Seiichi are unable to affix their signatures and
seals due to retirement and to illness, respectively.
Presiding Judge, Justice FUJIBAYASHI Ekizo
Translation reference: "Case 34. Kakunaga. v. Sekiguchil (1977). The Shinto
Groundbreaking Ceremony Case," in The Constitutional Case Law of Japan, 1970
through 1990, eds. Lawrence W. Beer and Hiroshi Itoh (Seattle: University of
Washington Press, 1996), pp. 478-491.
(This translation is provisional and subject to revision.)