Professional Documents
Culture Documents
Research Discourse
Hannah Schwendeman
This paper addresses the formation of the law and legal system of Japan during the
Meiji Restoration in the nineteenth century in the context of the historical relationship
between religion and the state in Japan. I will examine how the post-World War II
restructuring of Japan, led by Allied powers, affected the Japanese legal structure,
Constitution, Supreme Court, the role of the emperor, and the concept of individual
rights, specifically religious freedom. Despite efforts by the Allied powers to enforce
the separation of church and state though the inclusion of such principals into the
revised Japanese Constitution, the Japanese Supreme Court has attempted to mediate
the text of the Constitution in an effort to reconcile the prevalence of Shinto religion in
everyday Japanese life. Using the two most important cases regarding religious freedom
between 1975 and 2000, this analysis provides evidence that the Japanese Supreme
Court has been a pivotal actor in interpreting the scope of the new Constitutions
provision for the separation of church and state in Japan.
Vol. 6 - No. 1
Hannah Schwendeman
Vol. 6 - No. 1
Hannah Schwendeman
they exceed the limits of permissible religionstate contact. The majority also argued that the
particular form of donation the governor used
held specific religious connotations and noted
that a more neutral method of donation could
have been utilized.28 This case further defined
the constitutional limits of religious freedom in
relation to government officials.
Discussion
In both cases, the Justices utilized
the purpose and effect test, which defines
government involvement with religion as
permissible so long as its purpose and effect do
not support or promote a particular religion.29
Critics of the purpose and effect test argue
that the test is so broad that it cannot protect
their right to religious freedom. The dissenting
opinions of the Supreme Court in both of these
cases state that precisely because of the history
of religious oppression in Japan, the articles of
the Constitution, specifically Articles 20 and 89,
need to be strictly followed. While the majority
opinion argues that complete separation of
religion and state is impossible and therefore
some contact should be constitutionally
permissible, the dissenters in the Tsu-City and
Ehime Prefecture cases reject this rationale as
it leaves the question of the degree of contact
unresolved. They claim that any sponsorship
of religious activities by public entities
fundamentally contradicts the Constitution,
regardless of these activities effects. They
contend the purpose and effect test weakens
religious freedom because it is so ambiguous
and subjective.30
However, the purpose and effect
test is necessarily broad as it allows principles
of religious freedom to be more successfully
incorporated into Japanese society. With the
judicial power of constitutional review, these
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Spring 2015
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Hannah Schwendeman
Vol. 6 - No. 1
Hannah Schwendeman