The Supreme Court’s grand bench on Jan. 20 ruled that the city government of Sunagawa in Hokkaido has violated the Constitution through its longtime practice of letting a Shinto shrine use a city-owned plot of land without charge. The top court’s precedent-setting ruling should serve as a warning to the central and local governments that they should strictly uphold the constitutional principle of separation of state and religion. It will have an impact across the nation because many religious facilities, of various faiths, stand on public land. Some have cultural or historical value.
It is also noteworthy that the Supreme Court tried to avoid immediate removal of the shrine in question — the Sorachibuto Shrine — from its current site. While ruling that the city government’s practice is unconstitutional, it sent the case back to the Sapporo High Court, telling it to find a way to resolve the unconstitutionality of the land use without necessitating removal of the shrine. This could perhaps be done by selling or renting the land to the shrine’s regular worshippers.
The top court said that the shrine users’ right to freedom of religion should be protected. It is clearly taking a practical approach — enforcing the principle of separation of state and religion while trying to avoid confusion.
In a separate ruling handed down the same day, the grand bench ruled that the same city government did not violate the Constitution when it transferred city-owned land occupied by another Shinto shrine — Tomihira Shrine — to a neighbors’ association without charge, because the transfer was aimed at eliminating possible unconstitutionality.
The principle of separation of state and religion was introduced in the postwar Constitution. Shintoism had been imposed on people by the state during and before the Second World War, when local governments managed Shinto shrines and people were forced to worship there.
The Supreme Court’s grand bench, which is composed of 15 justices, has now ruled on five cases in which the separation of state and religion was the central issue. The Jan. 20 decision is the second time the court has ruled that a public body’s actions violated the principle. The first was in 1997, when it ruled that the Ehime prefectural government violated the Constitution when it used taxpayer funds as monetary offerings to two war-remembrance shrines, Yasukuni Shrine in Tokyo and Gokoku Shrine in Ehime Prefecture.
In the latest ruling, the grand bench asserted that courts deliberating on such cases — that is, where a public body offers land free-of-charge to a religious body — should “comprehensively consider” the character of the facility, how it is utilized, the historical context of the offer of free land, and popular public opinion.
This differs from a judicial precedent set by the grand bench in 1977, when it heard a case relating to a Shinto-style groundbreaking ceremony conducted by the Tsu city government on the construction site of a municipal gym. The court said that in such cases, the following should be considered when judging the actions of the central or local governments: whether the action has a religious purpose, and whether it has the effect of either benefiting, interfering with or oppressing any particular group. Under these criteria, the Tsu groundbreaking ceremony was ruled to be constitutional on the grounds that it was a social custom and was not aimed at benefiting Shintoism.
The history of the Sorachibuto case goes back to 1953, when the owner of the land on which the shrine stands donated it to the Sunagawa municipality — which in turn decided to let the shrine use the land free of charge. The plaintiffs in the case were two private citizens, a 79-year-old Christian man and an 87-year-old former soldier. The 79-year-old was also the sole plaintiff in the Tomihira Shrine case.
The grand bench’s Jan. 20 majority opinion, supported by the chief justice and seven justices, said that the land, with a torii gate and a small shrine, cannot legitimately be seen as anything but a Shinto facility and that allowing shrine worshippers free use of the land is a benefit to their religious activities. It thus concluded that the city government had violated Article 89 of the Constitution, which says no public property should be appropriated for the benefit of any religious institution, and Article 20, which prohibits the state from giving any privileges to religious organizations.
The Supreme Court’s ruling obliges courts to carefully consider the unique conditions of any given case, with reference to the new criteria it has established. But more pertinently, it serves as a reminder that the central and local governments should be careful of how they use public assets, be it money, land or facilities, in their dealings with religious organizations.
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