Separation of Religion and State in Japan: A Pragmatic Interpretation of Articles 20 and 89 of the Japanese Constitution

By Van Winkle, Andrew B. | Washington International Law Journal, March 2012 | Go to article overview

Separation of Religion and State in Japan: A Pragmatic Interpretation of Articles 20 and 89 of the Japanese Constitution


Van Winkle, Andrew B., Washington International Law Journal


I. Introduction

Since the 1977 Tsu City Groundbreaking case, legal scholars and professionals have debated Japan's constitutional freedom of religion. The Tsu City case was Japan's first case since World War II to define religious freedom.1 The case required the Supreme Court to decide the degree to which Articles 20 and 89 of Japan's Constitution, dealing with separation of religion and state, limit state entities from interacting with religious organizations.2 Answering this question, the Court held that these articles created less than absolute constraints on religious activity.3 This decision led to a vigorous academic debate to define the terms, context, and application of Articles 20 and 89. In the decades following Tsu City, the scholarly debate continued, fueled by Supreme Court decisions that, in all but one case, reaffirmed Tsu City's holding.

Interestingly, this debate is radically one-sided: almost every article on the topic condemns the Supreme Court's rationale in Tsu City and subsequent decisions reaffirming that result. Critics primarily complain about the Supreme Court's refusal to defer to Article 20's seemingly absolute language, and criticize the court for upholding what they perceive as patently unconstitutional outcomes. But, if this criticism is valid, and these decisions are repugnant to Japan's Constitution, then why does the Supreme Court continue to reaffirm Tsu City?

This comment seeks to answer this question and rebut the prevailing academic view through a reinterpretation of Articles 20 and 89. In reinterpreting Japan's constitutional guarantee of freedom of religion through the separation of religion and the state, this comment examines the Japanese Supreme Court's reasoning in Tsu City and its progeny, common Japanese principles of interpretation, the underlying purpose of Articles 20 and 89, and current public policy considerations. Using these sources, this comment argues that Japanese courts can reasonably interpret these articles to permit significant interaction between the state and religious groups and that the Constitution does not require absolute or even strict separation of religion and the state.

Part II of this comment begins with a brief history of religion and state in Japan, which frames the current debate, before introducing the text of Articles 20 and 89. Part III first reviews the Japanese Supreme Court cases that interpret these articles, and then discusses various academic and Supreme Court interpretations and the problems that arise from those interpretations. Part IV reassesses Articles 20 and 89 under prevailing principles of Japanese legal interpretation and offers a new test to analyze whether future situations violate these constitutional provisions. Finally, Part V concludes with a summary of the debate, and where this new interpretation fits within that debate.

II. The Long History of Religions and the State in Japan Directly Influenced the Development of Articles 20 and 89

Understanding this constitutional debate concerning Articles 20 and 89 requires a brief historical overview of the Japanese state's historical comingling with, and abuse of, religion. In 538 A.D., a delegation from the Korean peninsula introduced Buddhism to the Yamato court, which until that point had adhered to the religious authority of Amaterasu (the sun-goddess) and her human descendants.4 In 593, Prince Shötoku took power, unified Japan, and established Buddhism as the state religion.5 Buddhism, Shinto, and their various schools were largely tolerant, if not syncretic, until the middle of the thirteenth century when the monk Nichiren introduced a new school of Buddhist practice that scorned all other religions, for which the state eventually exiled him.6 In the centuries following the end of the Kamakura period (1185-1333), Japan devolved into warlordism, marked by intense clan fighting and even outright warfare between religious sects.7 In 1549, amid this civil war, St. …

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