One can’t help wondering if the best birthday present Emperor Emeritus Akihito received today was not having to be emperor anymore.

His abdication actually came at the end April, but it wasn’t until October that his son was formally enthroned as Japan’s 126th emperor, with the conclusion of the Sokurei Seiden no Gi (Sokui no Rei for short), a grand ceremony attended by a mob of foreign dignitaries. November saw the Daijosai, a once-in-a-lifetime ritual in which Emperor Naruhito entered purpose-built sacramental halls to commune with Amaterasu, a Shinto goddess and putative imperial ancestor.

With all the fun finished, we can probably next look forward to futile litigation challenging the government paying for the whole thing. On Oct. 21, a group of Japanese Christians denounced the succession ceremony and the Daijosai on the grounds it violated the constitutional separation of religion and government, and prohibitions on state funding of religious activities. Lawsuits preemptively challenging both ceremonies had already been filed a year ago.

Meiji precedents

Freedom of religion is guaranteed by Article 20 of Japan’s Constitution. To prevent the entanglement of government and religion such as led the nation down the disastrous path to totalitarianism and war under the previous Constitution (the so-called Meiji Constitution of 1889), Article 20 also prohibits religious organizations from receiving privileges from the state or exercising political authority. Moreover, it prohibits compelled participation in religious acts, celebrations, rights or practices and requires the state to refrain from religious education or religious activities. For good measure, Article 89 proscribes public monies being used to benefit religious organizations.

The government reportedly spent ¥2.7 billion on the Daijosai, which would seem problematic given its patently Shinto character. The Sokui no Rei also had some religious facets and was taxpayer-funded.

The Meiji Constitution called the emperor “sacred and inviolable.” An entire ministry was devoted to handling the emperor’s religious roles as well as the vast wealth his household came to control. Under the pre-war Imperial House Act a change of emperors entailed both the Sokui no Rei and the Daijosai (and mandated both be performed in Kyoto). Religion, state and finance were deeply entangled through the emperor, so separating them was a challenge, though it didn’t stop U.S. Gen. Douglas MacArthur from banning the statist form of Shinto by decree in December 1945.

The new Constitution and changes to the Imperial House Act were a further development in this effort. Rites that had long been a part of the emperor’s religious persona were relegated to the sphere of the imperial family’s “private” activities. Yet it was impossible to completely separate the secular role of the emperor completely from his ritual role in the worship of his Shinto deity ancestors.

The Sokui no Rei is still mandated by the Imperial House Act but regarded as a secular “government event.” Most other Shinto rituals in which the emperor participates are relegated to the sphere of his household’s “private affairs.” The Daijosai is problematic in that it is clearly a Shinto ceremony that has been expunged from the procedures mandated by the Imperial House Act, yet one that the government nonetheless pays for, on the grounds that it is an “important tradition.” Some have found this use of public funds questionable, including the emperor’s younger brother, Crown Prince Akishino, whose son will likely be emperor some day (Naruhito having no sons).

Expect to hear more about the challenges to this expenditure as cases work their way through the courts before their inevitable defeat at the Supreme Court. You see, the court already went through this once before the last time the throne changed hands.

The Heisei cases

In three separate rulings on challenges to the use of public funds in connection with Emperor Akihito’s Daijosai back in 1990, the court decided it was OK. The wheels of justice ground slowly, though, with the court’s first decision not being rendered till 2002.

In one case, a panel of five of the court’s judges rejected a challenge to the public funding of a prefectural governor’s attendance at the Daijosai, with the following explanation: “The provision on the separation of the state and religion is a provision of institutional guarantee and does not directly guarantee the freedom of religion per se, but by guaranteeing the separation of the state and religion as an institution, indirectly intends to guarantee the freedom of religion.” Helpful, right?

This rationale actually comes from a 1977 decision of the Grand Bench, a comparatively rare conclave of all 15 of the court’s judges sitting en banc when rendering particularly significant decisions. In that case the issue was use of public funds for a jichinsai, a traditional Shinto groundbreaking ceremony commonly performed before starting the construction of a building, in this case a municipal gymnasium.

In that case the court breezily declared, “While it undeniably appears to be a Shinto religious ceremony, it is actually a folk ceremony, not a religious activity for the purpose of propagating or disseminating Shinto.”

This argument was further bolstered by one of those seemingly compelling — but evidence-free — generalizations about Japanese people (except the ones bringing the lawsuit) that the nation’s jurists seem to love: “The Japanese public in general does not display a great interest in religion. They reveal, instead, a mixed religious consciousness: As members of the community, many people are believers in Shinto, and as individuals, believers in Buddhism. They feel no particular inconsistency in using different religions on different ceremonial occasions.”

So as for groundbreaking ceremonies, the state was in no different a position than a private landowner. Thorny constitutional problem solved, though not for the six judges who dissented, a significant display of disarray in a nation that supposedly loves consensus-based decisions.

Likely outcomes

The 1977 majority opinion did point out that a complete ban on state involvement in religious activities would prevent it from doing anything for religious schools or helping provide historical Buddhist temples. But it also developed a logic that, even though the Constitution seems to clearly proscribe state involvement in religion, is impossible to implement completely so some involvement is acceptable.

Equally problematic, perhaps, is that the 1977 ruling takes it for granted that, the baneful effects of having a state religion that arose under the Meiji Constitution having been eliminated, the prohibitions on state involvement in religion are really about establishing an institutional framework in which religious freedom can exist rather than being, say, prohibitions on state involvement in religion for their own sake.

Paying a Shinto priest to perform a traditional ritual before putting up a public building could perhaps be analogized to a Christmas tree in a public library or a pre-game prayer at a public school: Not ideal but perhaps not terribly problematic in the general scheme of things, to the extent neither probably does much to propagate a particular religion. Moreover, the Western view of separation of church and state is informed by an exclusionary monotheism that may not be applicable in Japan, as is hinted at by the language of the Supreme Court quoted above.

Still, it seems an extraordinary stretch to go from it being OK to spend a bit of money on a “folk ceremony” for a new municipal building, to it being OK to spend billions of yen on a clearly religious ceremony held in connection with the investiture of an emperor who is constitutionally the symbol of a supposedly secular Japanese state and who performs numerous ceremonial roles in the functioning of its government. Yet that is what the Supreme Court did in the Heisei Daijosai cases. The results will likely be similar for challenges to the Reiwa ceremonies. Unlike the 1977 case, though, there will probably be no dissents.

It is also worth pointing out that in the groundbreaking ceremony case, the state lost on the first appeal, yet someone in government thought it was a worthwhile use of government resources to fight all the way to the Supreme Court for the freedom to use public funds for Shinto rituals.

It should also be remembered the Meiji Constitution also supposedly granted the emperor’s subjects freedom of religion, subject to certain qualifications. This did not prevent students at Christian schools from being forced to pay homage to the emperor through Shinto rituals.

If groundbreaking ceremonies and the Daijosai are to be deemed mere “traditions” or “folk ceremonies,” then it does not seem a great leap to concluding that it is also constitutionally acceptable to force people — public servants, for example — to participate in them. Slippery slope arguments are easy to make, of course. But then I think the eagerness of Prime Minister Shinzo Abe and his conservative allies for constitutional reform is driven in part by a desire to have a charter that facilitates forcing people to act like “proper Japanese.” Hopefully, I am wrong.

Some of us may not see another imperial transition during our lifetimes. Supreme Court rulings on the Reiwa ceremonies may prove insignificant. Still, if you are one of those who feels Japan is drifting backward in time — being steered that way, even — you probably shouldn’t expect the court to do anything about it.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.

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