Religion in the Public Sphere: Challenges and Opportunities in Japan

I. BACKGROUND The difficulties involved in church-state relations are certainly nothing new in a global context. However, as recent high profile issues in France and the United States demonstrate, there has been a renewed popular interest in the debate. A year-old French statute banning the wearing of Muslim headscarves and other religious paraphernalia in public schools has received massive worldwide attention.1 Almost concurrently, courts in the United States, including the Supreme Court, have considered both directly and indirectly whether the words "under God" in the pledge of allegiance violate the Establishment Clause of the U.S. Constitution.2 These high profile cases, however, are just the tip of the iceberg.3 They represent only a small portion of the many less-publicized or less-controversial cases dealing with church-state separation and religious freedom in many countries worldwide. All of these cases, however, necessarily involve a determination about the appropriate level of government involvement in the lives of citizens and their religious practices. The issues raised by these cases have significance in every free nation because they impact the right of individuals to live and worship as they choose. As in many countries, Japanese lawmakers and courts have confronted and continue to address the issue of separation of church and state in specific contexts relevant to the global discussion. In one notable Japanese case, the Supreme Court of Japan examined whether local governments could sponsor a traditional Shinto ceremony as a part of the groundbreaking ceremony of a government building.4 More recently, visits by important public figures, including the Prime Minister, to the controversial Yasukuni shrine, which honors those who died while serving in the Japanese military or Self Defense Forces, have sparked both domestic and international controversy over the separation of church and state in Japan.5 Legal analysis of such issues is often complicated by the close connection between Japanese history and culture and Japan's centuries-old religious traditions.6 Judges and lawmakers often find themselves treading a tenuous line between governmental respect of cultural traditions and improper or unconstitutional interference with, or advancement of, religious practices. Significant differences of opinion remain about where the line should be drawn-differences that are not likely to subside in the foreseeable future. Although the discussion of the proper place for religion in the public sphere has great significance for religious freedom in every country, it is well known that the status of religion in the public sphere differs from nation to nation. The central focus of this paper is to analyze and identify precisely how "religion in the public sphere" operates in modern Japan. To help the reader attain a workable understanding of the contemporary relationship between church and state in Japan, this paper introduces some foundational concerns in the Japanese church-state dynamic. Specifically, Part II surveys the history and character of church-state relations in Japan. Parts III, IV, and V discuss freedom of religion in Japan in the various contexts of the Japanese Constitution and its ramifications for religion in public fora, in judicial decisions, and in the treatment of religious education in public schools. Part VT summarizes the place of religion in the public sphere in modern Japan, and Part VII concludes that the state can and should retain a neutral disposition with regard to religion, which would allow it to avoid being either nonreligious or antireligious. This Article will ultimately conclude that government neutrality vis-a-vis religion should not be construed to require the surgical removal of the positive influences of religious history and traditional religious values that properly inform a country's constitutional structure. II. THE HISTORY AND CHARACTER OF CHURCH-STATE RELATIONS IN JAPAN A. …