Religious Accommodation in Japan
Takahata, Eiichiro, Brigham Young University Law Review
Religious accommodation refers to "government laws or policies that have the purpose and effect of removing a burden on, or facilitating the exercise of, a person's or an institution's religion."1 Religious practices are, by their very nature, actions. Thus, they are governed completely different from other types of expression (such as normal speech). When a religious practice contradicts with laws or regulations, believers have to choose secular duties (or interests) or their religious obligations. To require such a choice burdens the conscience of believers. Religious accommodation heightens the value of the free exercise of religion by eliminating the burden the believer would have on her conscience. It does this by granting a legal exception for a practice that would otherwise be prohibited because of the centrality of the practice to the believer's religion.2 Religious practices that are thought to be socially harmful, such as bigamy, are generally not allowed, despite the religious character of the practice.
The 1981 United Nations Declaration on Religious Tolerance and Non -Discrimination ("1981 UN Declaration") seems to have had little legal effect on the protection of religious liberty in Japan. As noted below, current Japanese constitutional law guarantees religious freedom, requires the government to treat all religions equally, and requires the government to be neutral between religion and non-religion if possible.3 Japan, therefore, has not had to significantly change its practices in reaction to the 1981 UN Declaration.4 This Article will provide an overview of religious accommodation in Japan. Part II of this Article briefly describes the history of religious regulation in Japan, focusing on government control over religious persons and practices. Part III considers modern religious accommodation in Japan, as illustrated by court cases and government practices. Part IV looks briefly at the future of religious accommodation and how Japanese courts can handle the increasing diversity of religious beliefs within modern Japanese society.
II. THE HISTORY OF RELIGIOUS REGULATIONS
The Japanese government has regulated religion since at least AD 701. Taiho Ritsu-ryo, one of the oldest legal codes in Japan, contains provisions regulating clerics (especially Buddhist priests).5 The content of the laws originated in China, the leading legal system at that time.6
Shinto and Buddhism were the main religions in Japan at the time. Shinto is a Japanese indigenous religion that revolves around the worship of the kamt, or divine element, within objects (such as a tree, a stone, a mirror, or a sword) or within persons (such as one's ancestors or another historical person).7 While the practice of Shinto does not necessarily entail the worship of the Emperor of Japan, or Tenno* Shinto has had historical connections with Tenno\ authority to rule.9 Thus, Shinto was seen as the state religion at the time, and was administered by a separate section of the government.10
Buddhism was treated differently in the law. In China, Buddhist priests had brought social disorder and led anti-governmental movements, and the Japanese government had learned from China's experience. u Taiho Ritsu-ryo, as well as its successor Yoro-ryo (enacted in AD 718), contained restrictions on Buddhist priests.12 It provided that all those who wanted to become Buddhist priests had to receive permission from the government.13 A priest who wanted to return to secular life was also required to report to the government through a master of a temple.14 Furthermore, priests were not allowed to have private property15 and were required to obey religious commandments strictly. A major infraction of these rules, such as drinking, eating the five pungent spices (gojin),16 delighting in music, or gambling, would result in the offender being jailed for thirty to one hundred days.17 Priests who engaged in fortune telling, enchantments, or curing diseases lost their privileges as a priest and became laypersons. …