Table Of Contentobrien.book Page i Wednesday, November 14, 2001 2:48 PM
To Dream of Dreams
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obrien.book Page iii Wednesday, November 14, 2001 2:48 PM
To Dream of Dreams
Religious Freedom and Constitutional
Politics in Postwar Japan
DAVID M. O’BRIEN
with Yasuo Ohkoshi
University of Hawai‘i Press
Honolulu
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© 1996 University of Hawai‘i Press
All rights reserved
Printed in the United States of America
01 00 99 98 97 96 5 4 3 2 1
Library of Congress Cataloging-in-Publication Data
O’Brien, David M.
To dream of dreams : religious freedom and
constitutional politics in postwar Japan / David M.
O’Brien with Yasuo Ohkoshi.
p. cm.
Includes bibliographical references and index.
ISBN 0–8248–1757–5 (cloth : alk. paper). —
ISBN 0–8248–1166–6 (paper : alk. paper)
1. Freedom of religion—Japan. 2. Church and
state—Japan. 3. Separation of powers—Japan.
4. Japan—Constitutional history.
I. Ògoshi, Yasuo, 1946– . II. Title.
KNX2472.027 1996
342.52’0852—dc20 95–45936
[345.202852] CIP
University of Hawai‘i Press books are printed on
acid-free paper and meet the guidelines for permanence
and durability of the Council on Library Resources
Designed by Paula Newcomb
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Contents
Preface vii
Acknowledgments xiii
chapter 1. The Nail That Sticks Up 1
Religious (In)Tolerance; Law and Ordinary Litigation;
Conflict amid Conformity
chapter 2. Paradoxes of (Dis)Establishment 32
The Establishment of State Shinto; Disestablishment and
Japan’s 1947 Constitution; A Basis for Dialogue amid
Disagreement
chapter 3. Manipulating Law’s Social Reality 63
Stifling Judicial Independence; Secularizing Religion;
Law’s Reflection of “Social Reality”
chapter 4. Past Remembering 98
On Recollection; Transforming the Past; Hammering
Down the Nail; The Dreams of Survivors
chapter 5. Enshrinements for Tomorrowland 142
An Accidental Death and a Calculated Enshrinement;
Yasukuni’s Cult of War Dead; Changes amid Continuity
chapter 6. Cool Minds, Warm Hearts 179
A Quarrel That Shaped the Constitution; Of Rights,
Rituals, and Remembrance; The State, Religion, and
Constitutional Politics in Everyday Life
v
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vi contents
appendix a: Caseloads of Courts in Japan 210
appendix b: Individual Opinion Writing on the Supreme 212
Court of Japan, 1981–1993
Notes 215
Select Bibliography 245
Name and Subject Index 259
Case Index 269
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Preface
Religious freedom is precious and precarious in any country, but
especially in Japan. After World War II, in 1946–1947, the United States
imposed on Japan a constitution with stricter provisions both for the sepa-
ration of government from religion and for religious liberty than were
enforced in the United States at the time. Moreover, it did so in a country
with a very different religious scenery and history. Before the war, a new
religion, State Shinto, centered on worship of the emperor (tennò)* and
Yasukuni Shrine’s cult of war dead, was invented and established as a “non-
religion” in support of the government and militarism. Although other
countries have adopted or adapted provisions from the U.S. Constitution,
no other country has had a similarly modeled constitution imposed on it.
This book is about the controversies arising over religious freedom and
militarism under Japan’s postwar constitution. As such, it underscores that
the governmental structure, social infrastructure, and legal culture matter
far more than constitutional provisions for determining the scope of reli-
*The convention of translating “tennò” as “emperor” is followed here, even though there are
several reasons for not doing so. Although commonly translated as “emperor,” the Japanese
tennò, German kaiser, Russian tsar, and the Holy Roman Emperor are not precisely equiva-
lent. The tennò is a “kingly diety,” a “manifest deity,” a “living god” in an “unbroken line”
of descendents from the ancestral Sun Goddess Amaterasu. As discussed later, the word
“tennò” has special connotations, ambiguities, and associations with other important words
and concepts relating to the Japanese mental structure. Lastly and most importantly, this
book is about the legal and political battles over attempts to reestablish the institutions and
symbolism of Yasukuni’s cult of war dead and the emperor system. The emperor system was
a new religion invented and established before World War II and disestablished during the
Occupation afterward. For those on both sides of the postwar controversy over religious free-
dom and militarism, especially for those who lived through the war, the emperor (tennò)
retains very special meaning and significance.
vii
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viii preface
gious freedom and, more generally, civil rights and liberties. Japan is no
exception in this regard.
Religious freedom litigation in postwar Japan is also vexing because
it is intertwined with another, larger political controversy over the incre-
mental buildup of the military, the Land, Air, and Maritime Self Defense
Forces (SDF). There are actually three overlapping lines of litigation, or
underlying themes:
First, litigation has been brought by pacificists, communists, and others
opposed to what they deem renewed militarism. Article 9 of Japan’s
“peace constitution” not only renounces “war as a sovereign right of
the nation” but in no uncertain terms stipulates that “land, sea, and
air forces, as well as other war potential, will never be maintained.”
Yet spending for the SDF has grown steadily, to the point that Japan
now ranks among the top five countries of the world in its military
expenditures.
Second, and closely related, some survivors of World War II object
fiercely to renewed governmental support for the symbolism and
institutions of State Shinto, particularly Yasukuni Shrine’s cult of
the war dead. They, too, have turned to the courts for the enforce-
ment of the Constitution’s provisions for the disestablishment of
state support for religion.
Third, religious minorities, Christians, and other supporters of human
rights have sought the enforcement of constitutional provisions for the
free exercise of religion.
Religious freedom litigation thus represents three separate yet interwoven
undercurrents of social conflict—conflict over militarism, the revival of
governmental support for Yasukuni and the emperor system, and demands
for human rights.
In focusing on religious freedom litigation, several often self-perpetu-
ated and imported myths about religion, law, and politics in Japan are dis-
pelled. Although Japan has a history of religious syncretism and
ambivalence, religious ambivalence harbors a darker side: an indifference,
bordering on righteous intolerance, of minorities who hold strong beliefs
or who demand religious freedom. As the conflicts over religious freedom
here illustrate, Japan is far less harmonious and homogeneous than usually
portrayed. Deep-seated disagreements cut along generational, geographi-
cal, gender, and political lines. In addition, although the Japanese are no
less ambivalent about law, Japan is not, as so often claimed, a country of
“reluctant litigants.”
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preface ix
Organized around three case studies, new material is brought together
in this volume with interdisciplinary work on religion, law, and politics in
Japan. The first case study deals with a series of lawsuits involving the sep-
aration of the state from religion that were brought by survivors of World
War II, Satoshi and Reiko Kamisaka and a few of their neighbors. Chapter
1 introduces their lawsuits and dispute with Minoo city officials over
expenditures for a prewar chûkonhi war monument that enshrines the souls
of 298 soldiers as “country-protecting deities.”
Their story also provides a basis for exploring Japanese attitudes
toward religion and law, which some Japanologists may find elementary
but which will be helpful for nonspecialists and students of comparative
law and society. The Kamisakas’ suits pitted them against other survivors
in the local and national Japan Association of War Bereaved Families
(JAWBF), a powerful interest group and constituent of the conservative
Liberal Democratic Party (LDP). The Kamisakas’ suits thus represent gen-
erational and ideological conflict among survivors of World War II and,
due to the postwar educational system, a conflict not well understood by
younger generations. Their litigation also played into the larger political
struggle over resurrecting governmental support for the Yasukuni Shrine’s
cult of war dead and glorification of militarism.
Why the Kamisakas sued the government and persisted in battling it
out in the courts for two decades is explored in greater depth in Chapter 2,
in terms of both the prewar history of the political dynamics that estab-
lished State Shinto and the drafting of Japan’s 1947 Constitution. Apart
from the Kamisakas’ experience, some of the discussion covers old ground
for Shinto scholars and historians of Japan, but nonspecialists will find it
useful for understanding the lawsuits in question as well as contemporary
struggles for religious freedom. The development of State Shinto is briefly
traced from the Meiji Restoration in 1868 to the eventual emergence of
what became known as “the emperor system” of indoctrination into the
militarism of Yasukuni’s cult of war dead. By the 1930s, when the Kami-
sakas were growing up, State Shinto and the military held a vicelike grip
on the people. That ended with Japan’s surrender and occupation by the
Allied forces, which the latter half of the chapter takes up when dealing
with the drafting of the postwar constitution, and specifically the provi-
sions for religious freedom.
Chapter 3 examines the Kamisakas’ litigation within the context of
the operation of the judiciary and the Supreme Court’s first major ruling
on governmental support for religion in the Tsu City Ground-Purification
Ceremony case. Although the 1947 Constitution laid a basis for judicial
independence and gave the courts the power of “American-style” judicial
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x preface
review, judicial independence has failed to take root. The Liberal Demo-
cratic Party’s control over the government (and judicial appointments) for
thirty-eight years, until the 1993 elections, along with the politics of the
judicial bureaucracy, conspired in various ways to suppress judicial inde-
pendence and the exercise of judicial review.
Although experts on Japanese courts may find some of the discussion of
the judiciary’s organization to be basic, there is new evidence here document-
ing the decline of judicial independence, and this provides a background for
understanding the courts’ rulings and for explaining their deference to the
government. The watershed ruling in the Tsu City Ground-Purification Cere-
mony case is analyzed in the second half of the chapter. As a kind of case study
in the Supreme Court’s methods of constitutional interpretation, the discus-
sion of the Tsu City ruling focuses on the Court’s construction of the “social
reality” of religion both in postwar Japan itself and in relation to rulings by
the U.S. Supreme Court that the Japanese Supreme Court has drawn on but
not followed entirely. The Court’s Tsu City ruling, moreover, hung over the
Kamisakas’ and subsequent religious freedom litigation. Here and in the
remaining chapters, previously untranslated material is presented that will
interest those concerned not only with religious freedom but with compara-
tive constitutional law and judicial politics as well.
Having laid a basis for understanding Japanese attitudes toward reli-
gion and law, the development of State Shinto, and the political dynamics
of interest-group litigation and the judiciary, Chapter 4 provides a detailed
analysis of the Kamisakas’ lawsuits, the Minoo War Memorial cases. Their
three suits against Minoo city are analyzed both in terms of their tortuous
course up through the lower courts to the Supreme Court, and within the
broader political context of interest-group conflicts over resurgent ultrana-
tionalism and militarism.
The related litigation over the free exercise of religion and the strug-
gles of Christian minorities for religious liberty are examined in Chapters
5 and 6. These chapters are based on a third case study, that of a well-
publicized suit in Japan known as the Self Defense Forces Enshrinement case.
This lawsuit was brought by a Christian woman, Mrs. Yasuko Nakaya, who
objected to the enshrinement of her dead husband’s soul as a “country-
protecting deity” in Yamaguchi prefecture’s gokoku (country-protecting)
shrine. Her suit became entangled with the major controversy in the 1970s
and 1980s over pressures to reestablish governmental support for Yasukuni
Shrine, which is dealt with at length in Chapter 5.
Unlike the Kamisakas’ litigation, Mrs. Nakaya’s case became a rally-
ing point, a human rights cause commanding the support of major Chris-
tian and Buddhist organizations. This occurred because, in addition to
