Introduction
Religious freedom in Japan is a legal transplant.Footnote 1 By legal transplantation, we refer to the transfer of law between different jurisdictions or legal systems.Footnote 2 Some scholars argue that not merely the legal protection of religious freedom, but even the concept of ‘religion’ itself was imported to Japan.Footnote 3 The word shūkyō (宗教), meaning religion, was reportedly coined in the 1870s in response to Western demands that Japan agree in treaties to respect religious freedom.Footnote 4 Although, prior to this transplantation, Japan had some periods of relative religious toleration, religious freedom as a legal concept did not exist in the Japanese legal system until the 19th century.Footnote 5 This kind of borrowing was not a new phenomenon: previously, Japan had adopted legal concepts extensively from Korea and China.Footnote 6
Like many legal transplants,Footnote 7 religious freedom has become an important aspect of the legal system in Japan. Religious freedom (shinkyō no jiyū 信教の自由) was expressly protected by article 28 of the 1890 Meiji Constitution.Footnote 8 After the replacement of that Constitution following the end of World War II,Footnote 9 religious freedom now finds protection in the 1947 Constitution.Footnote 10 For example, article 20 of the 1947 Constitution (among other things) guarantees freedom of religion, prohibits compulsion to take part in any religious act, and requires that the state refrain from religious activity (an issue sometimes termed ‘non-establishment’).Footnote 11 Nonetheless, despite its incorporation into the Constitution and consideration by the Japanese Supreme Court in several cases, religious freedom in Japan remains contentious. For example, Prakash Shah suggests that the transplantation of the concepts of freedom of religion and the separation of religion and state to Japan has resulted in ‘dysfunctional effects’ because these concepts were originally developed within a Western cultural context.Footnote 12 He argues that when transplanted to Japan, ‘these ideas break down, get distorted, become absurd or nonsensical, and even potentially conflict-inducing’.Footnote 13 He suggests that this ‘can even lead to the identity postulate of a legal culture being altered or destroyed’.Footnote 14
In approaching the transplantation of religious freedom into the Japanese legal system, the question therefore arises: have the transplanted legal principles had ‘dysfunctional effects’, as Shah suggests? To assess this, we examine Japan’s experience of integrating these principles into its legal framework, focusing on two issues: whether Japan’s approach reflects an effective internalisation of these concepts, and whether the adopted norms have played a socially useful role.Footnote 15 We argue that Japan has effectively incorporated religious freedom principles into its legal system through judicial interpretation, demonstrating that this legal transplantation has been functional and meaningful. By examining Japanese constitutional jurisprudence, we show that Japanese courts have carefully interpreted and applied the concepts of religious freedom and the separation of religion and state. We further outline that the incorporation of these concepts has made it possible to address some longstanding social challenges in Japan.
It is true that complexities surround religious freedom and the separation of religion and state in Japan, including in relation to the position of Shintō, an indigenous belief system that is sometimes thought of as cultural rather than religious, and what are termed ‘new religions’.Footnote 16 However, such complexities are not unique to Japan, as religion, religious freedom, and the separation of religion and state are contested ideas in many jurisdictions. The analysis of these concepts has been carefully handled by the Japanese courts in recent decades, and produced significant benefits: the jurisprudence on the separation of religion and state has helped to clarify the relationship between Shintō and the state in Japan; and the protection of religious freedom has helped to facilitate religious exercise, including for religious minorities. In this context, it seems inaccurate to say that the transplantation of religious freedom has proved dysfunctional in Japan, even if there may be some potential to refine the approach of the Japanese courts.
This article has four parts after this introduction. The second part outlines the background on religious freedom in Japan – including its history and current position under the 1947 Constitution – as an example of legal transplantation or diffusion. The third part addresses the separation of religion and state under articles 20 and 89 of the Constitution. We argue that, despite the complexities involved, the judicial interpretation of the separation of religion and state in Japan has brought more clarity to the role of Shintō in Japan. The fourth part turns to the protection of religious freedom under article 20. We contend that, generally, the court decisions are balanced and show benefits for religious exercise in Japan. This part also considers the dissolution of the Unification Church, which was successfully sought by the Japanese government following controversy over the Church’s activities and heightened public scrutiny after the killing of former prime minister Shinzō Abe by an assassin who held a grievance against the Church and objected to Abe’s perceived ties to it. The fifth part concludes.
Religious Freedom in Japan as a Legal Transplant
Religious freedom in Japan can be viewed as having been transplanted as a legal norm in two distinct time periods. The incorporation of religious freedom in the 19th century, notably in the 1890 Meiji Constitution, may be thought to constitute borrowing from Western countries, which had insisted on religious freedom in Japan in treaties. Subsequently, the adoption of a stronger norm of religious freedom in the 1947 Constitution at the behest of the Allied Occupation involved further transplantation. However, at both of these stages there was an element of coercion from Western states; the ‘imposed’, or perhaps more accurately, partially imposed, character of the 1947 Constitution is an oft-debated topic.Footnote 17
Religious practice in Japan is rich and complex.Footnote 18 Opinion surveys indicate that many Japanese people consider themselves to be ‘non-religious’ (mushūkyō 無宗教), though they may hold spiritual beliefs.Footnote 19 However, Shintō and Buddhist practices are widely observed; the Japanese Supreme Court has said that ‘[t]he Japanese public in general does not display a great interest in religion. They reveal, instead, a mixed religious consciousness. They feel no particular inconsistency in using different religions on different ceremonial occasions.’Footnote 20 There is a saying that Japanese people are born Shintō, marry Christian and die Buddhist, referring to the rituals often used at these different life events.Footnote 21
Shintō developed in Japan as a belief system focused on the worship of kami (gods or spirits).Footnote 22 Subsequently, syncretism between Shintō and Buddhism (shinbutsu shūgō 神仏習合) emerged following the introduction of Buddhism to Japan in the mid-6th century.Footnote 23 As a result, various religious traditions and beliefs in Japan reflect aspects of both Buddhism and Shintō.Footnote 24 Christianity was introduced to Japan in 1549 and later faced periods of severe persecution; it was formally prohibited in the early 17th century.Footnote 25 Significantly, concern about the treatment of Christians was a significant factor behind the demands of Western states for the protection of religious freedom in Japan.Footnote 26 However, the coercive nature of the process is important to note, taking place in the aftermath of the forced opening of Japan after the arrival of Commodore Perry from the United States during the Tokugawa period.Footnote 27 Jason Ānanda Josephson describes this process as follows:
In 1853, American warships appeared off the coast of Japan. Ultimately, the Americans forced the Japanese government to sign a series of treaties intended not only to regulate commerce but also to protect a number of ‘basic rights’, including the freedom of religion. Japanese translators on first encountering the English word ‘religion’ in these international [treaties] were struck with a particularly intractable problem. There was at that time no word in the Japanese language equivalent to the English term or covering the same range of meanings. Over the next 30 years, the problem of defining ‘religion’ gained national prominence, giving rise to a broad debate at several levels of society.Footnote 28
The Meiji period, which began in 1868 with the Restoration that ended the Tokugawa shogunate, had major implications for religious freedom. On the one hand, the 1890 Meiji Constitution expressly protected religious freedom. Article 28 provided as follows: ‘Japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief.’ On the other hand, as this language indicates, the requirement that the exercise of the right not be prejudicial to peace and order, and not antagonistic to the people’s duties as subjects, represented a significant limitation on the right. Further, from the Meiji period, and through the Taishō period in 1912-1926 and early Shōwa period from 1926 (and especially in the lead-up to World War II), some Shintō practices and beliefs – particularly those focused on the person of the Emperor – became significant parts of state ritual and a source of controversy.Footnote 29 This reflected a conception of religious freedom that excluded some Shintō practices and beliefs from the scope of the concept, as Josephson explains:
The process of articulating ‘religion’ presented the Japanese state with a valuable opportunity. While acceding to pressure from international Christendom to guarantee freedom of religion to the Japanese people, officials defined ‘religion’ in such a manner as to promote two other key goals. By excluding State Shinto from the category of ‘religion’, they enshrined it as a national ideology, a matter of pure fact rather than contested faith. Meanwhile, officials consigned the popular practices of indigenous shamans and female mediums, with their spirit-foxes and other supernatural entities, to the category of ‘superstition’, deserving no protection under the regime of religious freedom. In short, Japanese officials translated pressure from Western Christians into a concept of religion that carved out a private space for belief in Christianity and certain forms of Buddhism, but also embedded Shinto in the very structure of the state and exiled various ‘superstitions’ beyond the sphere of tolerance. The invention of religion in Japan was a politically charged boundary-drawing exercise that extensively reclassified the inherited materials of Buddhism, Confucianism, and Shinto.Footnote 30
From the Meiji era through the wartime period, the government ‘exercised considerable control over Shinto shrines of various types as focal points for the unification of the nation and the mobilization of national spirit’, and from 1900, even administered shrines as ‘nonreligious’ state institutions’.Footnote 31 The government also provided Shintō ethical training in schools, established by the 1890 Imperial Rescript on Education.Footnote 32 Further, it promoted the divinity of the Emperor.Footnote 33 The embedding of some Shintō practices in the state, and rising religious repression, came about despite article 28 of the Meiji Constitution. The Japanese Supreme Court confirmed a narrow approach to article 28, depriving it of much meaningful effect, in the Hitonomichi Kyōdan Case in 1931, in which the Court upheld the constitutionality of a punishment for conducting public worship without permission from the prefectural governor.Footnote 34 However, Jolyon Baraka Thomas points out that article 28 did have some impact on political discourse in Japan, with debates and discussions around the concept of religious freedom making reference to this provision of the Meiji Constitution.Footnote 35 For this reason, Thomas argues that the suggestion that Japan had no religious freedom until the post-war period is overstated.Footnote 36 Nonetheless, these issues have been acknowledged by the Japanese Supreme Court in recent years:
The [1947] Constitution has several provisions, such as the latter part of Article 20(1), Article 20(3), and Article 89, that refer to what is called the principle of separation of state and religion. … Generally[,] the principle of separation of state and religion has been understood to mean that the state, which includes local government in this judgment, is not to interfere with religion and that it should have a secular nature and religious neutrality. The relationship between state and religion has differed in various countries corresponding to various historical and social circumstances. Previously in our country, Article 28 of the Meiji Constitution guaranteed the freedom of religion. However, it was an imperfect guarantee not only because the Meiji Constitution actually restricted freedom of religion to the extent that ‘it was not prejudicial to peace and order, and not contrary to the peoples’ duties as subjects,’ but also because State Shinto was virtually made the national religion and sometimes belief therein was demanded and other religious groups were subject to severe persecution.Footnote 37
As this experience indicates, the status of Shintō has been contested, and state support of Shintō was not considered a religious freedom issue because of ambiguity over whether it was a religion.Footnote 38 However, such a view was opposed by the Allied Occupation, who considered that Shintō’s position in the state did amount to a failure of religious freedom.Footnote 39 The Occupation authorities saw the state-Shintō connection as a tool of nationalism and militarism that contributed to the Japanese war effort in World War II.Footnote 40 Moreover, the strong position of Shintō in the pre-war and wartime Japanese state did coincide with increased repression of religious minorities, which became especially severe during, and in the leadup to, World War II.Footnote 41
Following the end of the war, the Allied Occupation sought to dismantle what it characterised as a system of ‘State Shintō’ (kokka shintō 国家神道) by ensuring religious freedom and a separation of religion and state.Footnote 42 Consequently, the Allied Occupation prohibited government support for Shintō shrines and sought to sever the connection between state authority and claims concerning the Emperor’s divinity. On 15 December 1945, the General Headquarters of the Supreme Commander for the Allied Powers issued the ‘Directive on the Abolition of Governmental Sponsorship, Support, Perpetuation, Control, and Dissemination of State Shinto and Shrine Shinto’, which, as later described by the Japanese Supreme Court, ‘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’.Footnote 43 On 1 January 1946, Emperor Hirohito issued an Imperial Rescript publicly renouncing his divine status. This announcement was disseminated throughout Japan via newspapers, solidifying the position of the Emperor as a ‘symbol of the state’.Footnote 44
The concerns of the occupying authorities about religious freedom ultimately took the form of article 20 of the 1947 Constitution; the new Constitution was promulgated on 3 November 1946 and came into effect on 3 May 1947. Article 20 has three clauses. Article 20(1) provides for freedom of religion: ‘Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.’ Article 20(2) prohibits compulsion to take part in religious acts: ‘No person shall be compelled to take part in any religious act, celebration, rite or practice.’ Article 20(3) requires that the state refrain from religious activities: ‘The State and its organs shall refrain from religious education or any other religious activity.’ Two other provisions of the 1947 Constitution are also of relevance. Article 19 protects freedom of thought and conscience: ‘Freedom of thought and conscience shall not be violated.’ Article 89, complementing the protection in article 20, prohibits public spending on religion: ‘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.’
Addressing the question of the suitability of the concept of ‘religion’ in Japan, Shah expresses concerns about the transplantation of religious freedom and the separation of religion and state, as reflected in these articles of the Constitution:
The vocabulary of freedom of religion, religious neutrality of the state, the secular nature of the state, and even the separation of Church and state are nevertheless a constant feature of Japanese court judgements either upholding or rejecting challenges to state actions in support of ‘religion’. These invariably involve ceremonies associated with Shinto, such as breaking the ground prior to the construction of a building, enshrinement of a member of the self-defence forces in a Gokuku [sic] (guardian of the state) shrine, and rituals at the Yasukuni shrines of the war dead. What is remarkable for the purposes of the present article is not whether judges either support or reject claims against state involvement in Shinto ceremonies, but rather the confidence with which they use the kind of language referred to above, which is embedded within a Protestant framework, for understanding Japanese traditions. It raises questions about how such language makes sense to Japanese judges themselves, to officials, or to Japanese people who operate out of a cognitive framework of a completely different order; about how it relates to their experience of the world; and about how such a transplanted framework can be said to have been successfully absorbed into the Japanese legal order and society.Footnote 45
There is no doubt that the particular circumstances of what is termed ‘religion’ in Japan present some challenges for the interpretation of religious freedom. However, that is not unusual, as religious freedom is a complex and contested right in many jurisdictions. No two countries are entirely identical – and nor do they need to be for legal transplantation to succeed. Indeed, the Japanese courts have developed a sophisticated body of jurisprudence around precisely the concepts of religious freedom and the separation of religion and state. Questions about the limits of the guarantee of freedom of religious practices (article 20(1) and (2)) have been considered by the Japanese Supreme Court and lower courts in cases including those relating to a death in a Buddhist exorcism,Footnote 46 a Christian’s attendance at school on Sunday,Footnote 47 kendō practice by a Jehovah’s Witness at school,Footnote 48 the harbouring of offenders by a pastor,Footnote 49 and the dissolution of Aum Shinrikyō, a group whose members carried out the Tokyo subway sarin gas terrorist attack.Footnote 50 In relation to the separation of religion and state (articles 20(1), 20(3) and 89), issues of non-establishment have arisen in a wide range of contexts. These include Shintō-style groundbreaking ceremony,Footnote 51 the enshrinement of Self-Defense Force personnel,Footnote 52 support for a war memorial and ceremony,Footnote 53 contribution to a Shintō shrine by a prefecture,Footnote 54 an enthronement ceremony,Footnote 55 a city offering lands for a Shintō shrine facility,Footnote 56 funding for a shrine of Confucius,Footnote 57 and enshrinement of Korean war dead.Footnote 58 Against this background, we turn in the next sections to consider the separation of religion and state, and then the protection of religious practice in Japan.
The Separation of Religion and State
Drawing clear lines for the purpose of the separation of religion and state is sometimes challenging due to belief systems and practices like Shintō.Footnote 59 Nonetheless, Japanese courts have responded to this challenge by developing a sophisticated body of jurisprudence – and by defending the necessity of the separation due to Japan’s historical experiences. The rationale for the separation has been explained by the Japanese Supreme Court in the Ehime Tamagushiryō Case in 1997 as being that, in Japanese history, ‘an unconditional guarantee of religious freedom alone has not been enough to guarantee fully the freedom of religion’, and it ‘has also been necessary to enact rules providing for the separation of state and religion’.Footnote 60 The Court thus said that ‘the Constitution should be interpreted as striving for a secular and religiously neutral state by regarding the total separation of state and religion as its ideal’.Footnote 61 In other words, the Court approaches this constitutional provision with Japan’s culture and history firmly in mind. The Japanese courts have internalised the norm of the separation of religion and state, and the jurisprudence they have developed helps to clarify a historically vexed relationship between religion and state.
The first Supreme Court case in the series of cases concerning the separation of religion and state is the 1977 Tsu City Shintō Groundbreaking Ceremony Case, which considered whether a Shintō groundbreaking ceremony for the construction of a municipal gymnasium constituted ‘religious activity’ and so whether state support for it violated the separation of religion and state.Footnote 62 This ruling is significant as a leading case in which the Supreme Court established the basic framework for the principle of separation of religion and state in the Constitution, as well as for the concept of ‘religious activity’ mentioned in article 20(3). In the judgment, the Japanese Supreme Court confirmed ‘the principle of religion-State separation, which forms the basis of the [relevant constitutional] 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’.Footnote 63 Instead, 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’ (purpose and effects test).Footnote 64 The Court described this principle as follows:
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.Footnote 65
Accordingly, the Court considered that a complete separation would ‘inevitably lead to anomalies in every area of social life’.Footnote 66 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’.Footnote 67 The Court noted that ‘[t]o 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’.Footnote 68 As a result, the Court interpreted ‘religious activity’ in article 20(3) as not extending to ‘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, subsidise, or, conversely, interfere with or oppose religion’.Footnote 69 Examples that the Court flagged included ‘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’.Footnote 70
External aspects needed to be taken into account such as whether ‘a religious figure officiates or whether the proceedings follow a religiously prescribed form should not be the only factors considered’.Footnote 71 In other words, the Court suggested it was necessary to consider 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’ in order to reach ‘an objective judgment based on socially accepted ideas’.Footnote 72 In this context, the Shintō groundbreaking ceremony was considered by the Court, despite its religious origins, to be a ‘secularized ritual without religious meaning, a social formality that has become customary at the start of construction work’ because it was ‘well within the bounds of general usage widely observed over many years’, it had a secular purpose of ‘meeting the demand of construction workers to observe a social formality that has become customary at the start of work’, and did not involve proselytising.Footnote 73 Accordingly, there was no violation of article 20(3) or article 89.
The Japanese Supreme Court interpreted the separation of religion and state in the context of Japan’s own culture, including matters that it identified such as state support for the maintenance and preservation of cultural assets, which the Court considered rendered a complete separation of religion and state unfeasible. The test articulated by the Court took into account how the impugned practice would be viewed by a person within Japanese society. And in reaching its decision, it considered the nature of the ritual in question from the standpoint of social practices in Japan. As will be seen, in some later cases involving Shintō, the Japanese courts have found violations of the principle of separation of religion and state. However, although no violation was found in the Tsu City Shintō Groundbreaking Ceremony Case, this case was a significant milestone because it helped to clarify the nature of the relationship between Shintō and the state under the Japanese Constitution, an issue that had proved so complicated in pre-war Japan. Some Shintō rituals, according to the Court, were secularised – but limits were drawn.
Interestingly, although the purpose and effects test applied in this case is regarded as having been influenced by the strict separation of church and state in the United States as set out in the test from Lemon v Kurtzman (the Lemon test),Footnote 74 the Japanese version was distinct, and slightly less stringent. Whereas under the Lemon test, laws were required (1) to have a secular purpose, (2) not to advance nor inhibit religion in their principal or primary effect, and (3) not to foster an excessive government entanglement with religion, the Japanese Supreme Court’s approach involved evaluating the purpose and effects in a more integrated manner. In any event, the US Supreme Court has since shifted away from the Lemon test and its strict separation of religion and state in recent cases such as the 2022 decision of Kennedy v Bremerton School District.Footnote 75
Later decisions building on this jurisprudence further delineated the relationship between Shintō and state, continuing to apply the purpose and effects test. In one instance, the widow of a deceased member of the Japan Self-Defense Forces (JSDF), who died in a traffic accident while on duty, objected to his enshrinement in a local Shintō shrine. She argued that this violated the constitutional principle of separation of religion and state, and her own religious personal and privacy rights.Footnote 76 The Supreme Court ruled in 1988 that the JSDF’s enshrinement did not breach the principle of separation of religion and state (or the widow’s rights). In respect of the separation of religion and state, it concluded that the JSDF’s enshrinement had an ‘indirect’ relationship with religion, with the purpose and intention taken to be to ‘raise the social status and morale of SDF members’.Footnote 77 The Court also determined that the action would not be considered by the general public to ‘have the effect of drawing attention to a specific religion’, or of ‘sponsoring, promoting, encouraging a specific religion or suppressing or interfering with other religions’.Footnote 78 However, several judges in their opinions attached to this ruling persuasively argued in favour of finding violations of the principle of separation of religion and state.Footnote 79 The ruling has attracted scholarly criticism as well.Footnote 80
Applying the same test, the Supreme Court ruled in 1997 that Ehime Prefecture had violated articles 20(3) and 89 of the Constitution.Footnote 81 The case involved the local government’s use of public funds to make offerings to Shintō shrines.Footnote 82 The difference between this case and the Tsu City Shintō Groundbreaking Ceremony Case lay in how, in the latter case, the Supreme Court characterised the act as a ‘customary social ritual or courtesy’ (shakaiteki girei 社会的儀礼). In the Ehime Tamagushiryō Case, the Court stated that
making such offerings as tamagushiryo at a time when important traditional ceremonies are held by the shrines within their precincts is much different from holding a groundbreaking ceremony, which is a ceremony to pray for stable foundations and accident-free construction held by an owner within a construction site, since a groundbreaking ceremony can be regarded as only a secular social event whose religious significance has gradually weakened over time. The offerings in this case can hardly be thought of as just a secular social courtesy by an average person. So, more or less, the contributors of such offerings as tamagushiryo usually think that they have some religious meanings, and so do the appellees in this case.Footnote 83
In a 1993 ruling concerning Minoo City’s actions of relocating and rebuilding a monument for the war dead, and leasing its land to the local war-bereaved families association for the maintenance of the monument, the Supreme Court ruled these actions constitutional.Footnote 84 The Court determined that the association did not qualify as a ‘religious organization’ under articles 20(1) and 89. The legal test for the separation of religion and state underwent some development in 2010.Footnote 85 In the Sorachibuto Shrine Case,Footnote 86 the Supreme Court found a violation of articles 20(1) and 89 of the Constitution, as Sunagawa City allowed a joint neighbourhood association to use municipal property for a Shintō shrine without charging any compensation. As in the Ehime Tamagushiryō Case, the Court assessed how the issue would be viewed by the public. However, the Court did not use the purpose and effects test, instead evaluating various factors in a holistic manner (comprehensive evaluation or sōgō kōryō kijun 総合衡量基準). A similar holistic approach was applied in the Tomihira Shrine Case, where the Court ruled that the gift of municipal land and buildings for a Shintō shrine to the local neighbourhood association was constitutional where it had previously been donated to the city by the predecessor of the association.Footnote 87 The test was also applied in a 2012 follow-up to the Sorachibuto Shrine Case, in which a solution involving leasing land at a reasonable rent was found to pass constitutional muster.Footnote 88 The shift illustrates the way in which the Japanese courts have refined their own tests, moving away from their apparent original inspiration in the US case law, and continue to emphasise the viewpoint of the Japanese public in approaching this legal question.
In 2021 the Japanese Supreme Court found a violation of article 20(3) in respect of an exemption from fees for use of a part of a park for a facility enshrining Confucius.Footnote 89 The Court held that the facility located on state-owned land in a city park managed by Naha City was a religious facility.Footnote 90 Applying the comprehensive evaluation approach established by the Sorachibuto Shrine Case, the Court concluded that the mayor’s action of exempting the facility from usage fees amounted to a religious activity prohibited under article 20(3) of the Constitution, thereby finding it unconstitutional. Initially, the comprehensive evaluation framework was applied to issues of violations under the latter part of article 20(1) and article 89 of the Constitution. The ruling extended this to article 20(3) of the Constitution. This expansion of the comprehensive evaluation approach established it as the primary method for determining violations of the constitutional provisions on the separation of religion and state.Footnote 91
In reviewing the relevant jurisprudence, it is clear that the Japanese Supreme Court has developed its own test, which it has refined over time, for assessing the separation of religion and state; this demonstrates the internalisation of transplanted religious freedom in Japan. The Court’s approach emphasises the alignment of Japan’s social and cultural conditions with the purpose of guaranteeing religious freedom, leading to the consideration of various factors, including social perceptions and cultural practices. In addition, challenges related to the role of Shintō during the pre-war period are addressed, with at least some success, through the tests developed by the Japanese Supreme Court. The Court has placed particular emphasis on the pre-war period and the constitutional drafting history. For example, in the 1997 Ehime Tamagushiryō Case, the Court expressed the following rationale to support its strict principle of separation of religion and state, as well as its finding of unconstitutionality:
The relationship between state and religion has differed in various countries corresponding to various historical and social circumstances. Previously in our country, Article 28 of the Meiji Constitution guaranteed the freedom of religion. However, it was an imperfect guarantee not only because the Meiji Constitution actually restricted freedom of religion to the extent that ‘it was not prejudicial to peace and order, and not contrary to the peoples’ duties as subjects,’ but also because State Shinto was virtually made the national religion and sometimes belief therein was demanded and other religious groups were subject to severe persecution. Considering these several negative effects occurring from the close connection between the state and Shinto after the Meiji Restoration, the present Constitution has newly provided for the unconditional freedom of religion and, in order to secure its guarantee further, established the principle of separation of state and religion. … Reviewing the above-mentioned process of establishing the Constitution, in which the relationship between the state and Shinto had such a harmful effect after the Meiji Restoration that the Constitution now stipulates the separation of state and religion, the relationship between a local government and a specific religion cannot be allowed as not exceeding the reasonable limit that the Constitution stipulates, even if not a few local residents wish so. We consider that it is possible to mourn for the war dead and to console the bereaved families without such a special relationship with a specific religion.Footnote 92
As this quotation shows, the Court is expressly conscious of Japan’s history and the Court’s responsibility to forge a different path under the current Constitution. That is not to say that complexities involving Shintō and the state are resolved, and we do not wish to overstate the level of clarity that has been achieved. As Shah notes, one particular challenge is the Yasukuni Shrine, which commemorates Japan’s war dead, including war criminals; politicians’ visits to it have drawn criticism from neighbouring countries, and the issue is politically and diplomatically charged.Footnote 93 In a 2025 decision, the Japanese Supreme Court declined to rule on whether the act of the government in providing a list of war dead to the Yasukuni Shrine that included Koreans, enabling their enshrinement in 1959, violated the constitutional principle of the separation of religion and state, because the claim was extinguished by the 20-year statute of limitations.Footnote 94 The case was brought in relation to Korean war dead who were enshrined there without the consent of their families. Critics of the decision pointed out that information about this enshrinement was only provided by the Japanese government to the South Korean government in the late 1990s and 2000s, so the issue could not have been raised within 20 years.Footnote 95 Justice Mamoru Miura wrote a forceful and convincing dissent, finding that the case was not statute barred as, among other reasons, there was reason to consider that applying the statute of limitations would be extremely contrary to the principles of justice and fairness; he considered that the case should be returned to the lower court.Footnote 96 This case may be taken to illustrate the ongoing constitutional ambiguity surrounding the Yasukuni Shrine.
However, even taking into account this significant point of ambiguity, what has been achieved by the Japanese courts in many contexts is a clarification of the relationship between Shintō and the state. Accordingly, the objection by Shah that talk of matters such as the separation of religion and state is ‘of a cognitive framework of a completely different order’ seems to insufficiently appreciate the careful body of jurisprudence that the Japanese courts have developed.Footnote 97 It also appears to assume that foreign developed concepts cannot be useful in a given legal system, when, in fact, this is at odds with both the prevalence of legal transplantation and the specific circumstances of the experience of the separation of religion and state in Japan. Difficulties with the scope and meaning of religion are not unique to Japan, as many systems struggle to successfully define religion; equally, the separation between religion and state is often a challenging issue.Footnote 98 However, Japanese courts have generally played an effective role in developing a body of case law with a nuanced answer to at least some of the problems presented about the connection between Shintō and the state in the pre-war period.
The Protection of Religious Freedom
As with the cases on the separation of religion and state, the Japanese courts have developed careful jurisprudence on the protection of religious freedom under article 20(1). The way in which this right has been protected shows both internalisation to the Japanese legal system, and social utility in addressing Japan’s historical lack of religious freedom. At the same time, the rights outlined in the Constitution are limited by article 12, which provides that the people ‘shall refrain from any abuse of these freedoms and rights and shall always be responsible for utilising them for the public welfare’.Footnote 99 At the time of writing, the scope and limits of this constitutional protection constitute a significant contemporary issue in the light of the dissolution of the Japanese branch of the Family Federation for World Peace and Unification (Sekai Heiwa Tōitsu Katei Rengō 世界平和統一家庭連合), also known as the Unification Church (Tōitsu Kyōkai 統一教会), which was ordered by the Tokyo District Court in 2025.Footnote 100 The Unification Church is an avowedly Christian religious group originally from South Korea with a significant presence in Japan.Footnote 101 The protection of religious freedom under the Japanese Constitution provides a lens through which to evaluate the issue of dissolution of the Unification Church, and places some constitutional conditions on the government’s ability to pursue this dissolution. Even though religious freedom is a legal transplant to Japan, the tests developed by the Japanese Supreme Court prove helpful in assessing these and other social questions, considering both the protection of fundamental rights and the public welfare.
In October 2023, the government sought dissolution of the Church in Japan in the Tokyo District Court in the wake of concerns about possible exploitative practices. This differed from previous cases where dissolution followed criminal law violations.Footnote 102 The government argued that the Church had systematically violated civil law since 1980 by using its religious status to pressure members into making donations and expensive purchases, thereby harming public welfare and deviating from the purpose of a religious organisation. The Church criticised the government’s request, asserting that the request posed a threat to the religious freedom and human rights of its members.Footnote 103
In approaching the Unification Church issue, the Tokyo District Court was in a position to draw on a line of cases exploring religious freedom dating to the 1960s. An early significant case concerning article 20(1) and (2) involved the accidental death of a woman due to smoke inhalation during a Buddhist exorcism.Footnote 104 The priest who was charged with offences relating to her death invoked article 20 of the Japanese Constitution to argue that the prosecution was unconstitutional. Unsurprisingly, the Japanese Supreme Court rejected the claim of a violation of the Constitution in respect of this prosecution. The Court reasoned that
Article 12 of the Constitution provides that the people shall refrain from any abuse of fundamental human rights and shall always be responsible for utilizing them for the public welfare. Article 13 of the Constitution also provides that fundamental human rights shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs. These provisions of the Constitution are never those to be referred to as instructive provisions, as stated in the arguments. Therefore, the guarantee of freedom of religion is not absolutely unlimited.Footnote 105
Thus, the Court observed that although ‘the act of the defendant in this case was performed as a prayer of blessing using incense sticks to pray for the recovery of Victim A from a mental disorder’,
the motive, means, and method for the above prayer of blessing by the defendant, as well as the degree of the assault therein that resulted in the taking of the life of the above victim etc. … cannot be at all accepted as a generally accepted medical treatment for a person afflicted with psychosis.Footnote 106
Hence, even if the defendant’s action was
a kind of religious act … such an act falls under the illegal use of physical force causing harm to the life, body, or the like of another person as found by each above judgment. Since the act caused the death of the victim, it cannot be denied that the above act of the defendant is extremely antisocial, and there is no other choice but to say that it goes beyond the limits of the guarantee of freedom of religion under Article 20, paragraph (1) of the Constitution, and the imposition of a punishment for this act by deeming it to fall under Article 205 of the Penal Code is in no way in violation of the above clause of the Constitution.Footnote 107
This case highlights the broad scope of protection for religious freedom, in which religious actions can be of all kinds; therefore, justifying limitations on religious freedom becomes a critical issue. The reasoning here invoked the concept of public welfare, and the idea that religious freedom should not be abused. The Court further described the priest’s action as ‘extremely antisocial’ and an ‘illegal use of physical force causing harm to the life, body, or the like of another person’, implicitly acknowledging the impact of the priest’s action on the rights of others. It was for these reasons that the claim under article 20 was unsuccessful. Although concisely reasoned, the thrust of the judgment is sensible and persuasive; the idea that religious freedom cannot extend to killing another is obvious. However, that is not to say that religious freedom can never prevail over the criminal law. For example, in 1975 the Kobe Summary Court accepted a religious freedom claim in respect of a Christian pastor’s action of harbouring two high school students who had committed some criminal offences.Footnote 108
A later case concerned the dissolution of Aum Shinrikyō under Article 81 of the Religious Corporations Act, following the Tokyo subway sarin gas attack carried out by its members (the Aum Shinrikyō Dissolution Case).Footnote 109 Article 81 provides that
[w]hen the court finds that a cause which falls under any of [specified] items exists with regard to a religious corporation, it may order the dissolution of the religious corporation at the request of the competent authority, an interested person, or a public prosecutor, and by its own authority.Footnote 110
The items are:
• in violation of laws and regulations, the religious corporation commits an act which is clearly found to harm public welfare substantially;
• the religious corporation commits an act which deviates substantially from the purpose of a religious organisation, or fails to carry out any act for such purpose for one year or more;
• in the case where the establishment for worship has been lost, and the religious corporation fails to set up the said establishment for two years or more after the loss without a compelling reason;
• the religious corporation lacks a representative officer or their substitute for one year or more; or
• in the case where one year has passed from the day of the delivery of a certificate concerning the certification, it becomes clear that the relevant religious corporation fails to meet relevant certification requirements.Footnote 111
The Japanese Supreme Court upheld the dissolution as constitutional notwithstanding article 20(1). The Court emphasised that dissolution of a religious organisation did not stop the members of that religion from observing the religion. Thus, the Court stated that
even if a religious organisation is dissolved as a result of a dissolution order, believers are not prevented from continuing a religious organisation without juridical personality or from creating such an organisation anew, nor are they prevented from conducting religious acts or from procuring new installations or equipment for the exercise of such acts. The Dissolution Order does not accompany any legal effect which prohibits or limits religious acts by the believers.Footnote 112
However, the Court accepted that
when a dissolution order takes effect, a liquidation procedure follows (Art 49, para 2, Art 51 of the Law), and as a result, the assets of the religious organisation such as the installation for rituals and other assets used for religious acts will be disposed of (Art 50 of the Law), and there is a possibility of some disruption to the continuation of religious acts which the believers had been conducting by using these assets.Footnote 113
Consequently,
[a]lthough legal regulations on religious organisations do not accompany the effect of legally restricting the religious acts of the believers, if there is a possibility of some disruption to them, in light of the significance of religious freedom which is one of the spiritual freedoms guaranteed by the Constitution, whether the Constitution allows such restrictions should be examined carefully.Footnote 114
Nonetheless, it was considered that the dissolution system ‘solely addresses the [worldly] aspect of religious organisations and, is solely for [a worldly] purpose, and does not intend to interfere with the spiritual and religious aspects of religious organisations or the believers, and thus, the goal of the system is reasonable’.Footnote 115
The Court focused on the circumstances of Aum Shinrikyō’s terrorist actions, finding that these justified the dissolution on the basis of necessity:
According to the facts established by the original instance court, A, who was the representative officer of the … appellant, and many cadres of the organisation under the instruction of A, plotted to produce sarin, which is a poisonous gas, for the purpose of mass murder and produced it systematically in an organised manner by mobilising many believers, using the installations and financial resources of the appellant. It is evident that the … appellant has acted against the law and committed an act which is substantially against public welfare and has substantially exceeded the goal of a religious organization. In order to deal with such an act by the … appellant, it is necessary and appropriate to dissolve the … appellant and to deprive it of its juridical personality. On the other hand, although it is unavoidable that by the dissolution order, there is some disruption to the religious acts by Aumu Shinrikyo as a religious organization and its believers, such a disruption remains an indirect and de facto outcome of the dissolution order. Therefore, the Dissolution Order, even when considering the effect it may have on the spiritual and religious aspects of Aumu Shinrikyo as a religious organization and its believers, can be regarded as a necessary and unavoidable legal regulation in order to deal with the acts of the … appellant. Furthermore, the Dissolution Order was issued through judicial scrutiny by the court based upon Art 81 of the Law, and therefore, the procedural fairness is guaranteed. … It goes without saying that the freedom of religious acts should be respected to the maximum degree possible, but it is not absolutely limitless. Taking the above into consideration, the Order Dissolution and the decision of the original instance court which dismissed the instant … appeal are not against Article 20 of the Constitution, and this is in line with the precedent of the Supreme Court [citing the Buddhist exorcism decision].Footnote 116
To this it might be added that by killing others in the name of religion, Aum Shinrikyō had abused religious freedom in the same way as in the Buddhist exorcism. It is also important to note that any disruption was described as ‘indirect and de facto’ because the order in this case targeted only the religious organisation and did not impose legal regulations directly affecting the religious acts of its followers. Some scholars have expressed the view that this can be better understood as a direct restriction on religious freedom.Footnote 117 Whether or not that is so, there is no question that the Court was correct to find that dissolution of the Aum Shinrikyō organisation was not a violation of article 20(1) in the wake of the terrorist atrocity it committed – the restriction was indeed necessary and unavoidable in the circumstances. By developing its tests to consider religious freedom questions in Japan, taking into account both this right and the public welfare, the case law shows the internalisation of the norm of religious freedom in Japan.
Express analysis of whether there were less intrusive or restrictive means available – in other words, the presence of alternatives – might have helped to make this conclusion more transparent.Footnote 118 Less intrusive or restrictive means analysis is used sometimes by the Japanese Supreme Court in various areas, though not consistently.Footnote 119 The Court research officer’s commentary in the Aum Shinrikyō decision indicates that the factors for the Japanese Supreme Court were the necessity and reasonableness of the purpose of the regulation, the degree of the interference with religious practice, the availability of other less restrictive alternatives, and the fairness of the regulatory procedure.Footnote 120 Nonetheless, despite this advertence to the issue of less restrictive alternatives in the research officer’s commentary, reasoning about what the less restrictive alternatives might have been, and why they were insufficient, is not clearly expressed in the Court’s judgment. It is, of course, very unlikely that any less restrictive means were available, given the extreme circumstances of the terrorist actions.
In contrast, consideration of alternatives to the impugned action was a key feature of the Japanese Supreme Court’s carefully reasoned decision in a case relating to kendō practice, handed down in 1996.Footnote 121 In this decision, the Supreme Court upheld a claim of violation of religious freedom in relation to the failure to accommodate a Jehovah’s Witness student’s request not to participate in kendō practice at school. As part of its consideration of the case, the Japanese Supreme Court expressly addressed the possibility of alternative measures that would be less burdensome on religious freedom as relevant to its inquiry under article 20(1):
The Appellee repeatedly requested the provision of alternative activities, such as writing reports and the like, but it is not true that he was asking for evaluation as if he had participated in kendo practice. On the other hand, as soon as the Appellee and other students, followers of [the Jehovah’s Witnesses], gave notice to the effect that they refused to participate in any combative sport class for reasons of religious faith, [Kobe] Technical College stated that they did not accept the Appellee’s refusal to participate in kendo practice and would not offer alternative activities, and turned down the request for alternative activities made by the Appellee and his guardian, persuading them only to take part in catch-up kendo practice, instead. In light of the above nature of each of the said dispositions, the Court holds that sufficient consideration should have been given to the rightness of offering any alternative activity, the way and manner thereof, if any, and so on before each of the said dispositions was handed down, but there is no proof of any such consideration being given in this case.Footnote 122
Further, the argument that the provision of alternative measures would be inconsistent with the article 20(3) case law was rejected. The Court noted that it
does not believe that, in the case of a student who is not able to participate in kendo practice for valid reasons of religious faith, the action of offering alternative activities such as requiring the relevant student to take part in alternative physical training activities, write reports and so on and evaluating the results thereof, has religious implications in its purpose, or has the effect of supporting, enhancing, or promoting a specific religion or the effect of oppressing or interfering with those believing in other religions or those with no religion; the Court holds, therefore, that employing alternative measures, regardless of the way or manner thereof, is not against Article 20, Paragraph 3 of the Constitution for obvious reasons.Footnote 123
This case demonstrates that, when the rights of others, or the public welfare, are not affected by religious practices, Japanese courts are rightly willing to grant an accommodation under article 20(1). It shows that the Japanese Supreme Court’s case law can help to promote religious exercise in Japan, including by minorities such as Jehovah’s Witnesses, and in this way work to avoid repeating Japan’s history of sometimes extreme intolerance towards minority religions.
Returning to the dissolution of the Unification Church, as with the Aum Shinrikyō Dissolution Case, an issue arose with the compatibility of such a dissolution with religious freedom under article 20(1) of the Japanese Constitution. Following the judgment of the Japanese Supreme Court in the Aum Shinrikyō Dissolution Case, the question under article 20(1) was whether the dissolution of the Church was ‘necessary and unavoidable’ (hitsuyō de yamu wo enai 必要でやむを得ない). Although the necessity of dissolving Aum Shinrikyō after the 1995 Tokyo subway sarin gas attack seems clear, the case of the Unification Church presents a more complex question, in part because the Church has only been found to have engaged in civil wrongs rather than criminal ones. In line with the discussion of alternative measures in the Kendō Case, a critical consideration was also whether there were less intrusive means than dissolution to address concerns about the Unification Church’s alleged exploitative financial practices and its treatment of members.Footnote 124
In 2025, the Tokyo District Court ordered the Unification Church to be dissolved in Japan on the basis of its unlawful activities in raising donations, and in 2026, the Tokyo High Court and Japanese Supreme Court upheld the decision.Footnote 125 In considering the issue, the courts applied the existing case law of the Supreme Court on religious freedom – the test of whether the dissolution was ‘necessary and unavoidable’ – considering that there were no other effective means of addressing the situation, and placing particular emphasis on the failure of the Church to reform its practices after making a statement in 2009 that it would ensure compliance with the law. As in the other case law above, the tests developed by the Japanese Supreme Court offer a means of ensuring that the Church’s religious freedom is not infringed, while at the same time protecting the public welfare from harmful practices carried out under the guise of religion. In this regard, the case law shows both the successful internalisation of this transplanted norm and its social utility in Japan.
Conclusion
Religious freedom in Japan is an example of legal transplantation or diffusion, received into the Japanese legal system following contact with Western legal systems in the 19th century and strengthened again through the 1947 Constitution, article 20 of which protects religious freedom today. Japan has a complex religious history involving Shintō and imported traditions such as Buddhism and Christianity. Although there are significant challenges relating to religious freedom and the separation of religion and state in Japan, the transplantation of these concepts has brought benefits: it has helped to protect religious practice, such as that of the Jehovah’s Witnesses, while allowing harmful practices, such as those of the Unification Church, to be restricted; and, though not free of some ongoing areas of complexity, it has more clearly delineated a relationship between religion and state – especially in relation to Shintō – that had proved problematic in the pre-war period. Further, the sophisticated body of jurisprudence developed by the Japanese Supreme Court, and its advertence to the cultural and social circumstances of Japan, suggest the effective internalisation of these transplanted norms. In this context, we suggest that the view that the diffusion of religious freedom to Japan has failed is misguided. Legal transplantation is a widespread phenomenon, and although consideration needs to be given to the suitability of imported legal concepts to any given legal system, it should not be assumed that merely because a concept comes from elsewhere, it cannot be a useful addition to a legal system. The experience of the legal concept of religious freedom in Japan suggests otherwise.
Acknowledgements
Ayako Hatano is Max Weber Fellow, Department of Law, European University Institute. We would like to thank Erica Baffelli, Javier García Oliva, Luke Graham, Masahiko Kinoshita, Claire Macdonald, Ikuru Nogami, Daniel Rosen, Dian Shah, Shiling Xiao and the anonymous peer reviewers, as well as the organisers and participants at the First International Forum in Asian Laws: Diffusion of Law in Asia conference on 1-2 August 2024 at the National University of Singapore, for their extremely helpful comments, and Fay Black for her research assistance.
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