Japan Institute for National Fundamentals

　
On January 9, dozens of Self-Defense Forces personnel, including the deputy chief of staff of the Japan Ground Self-Defense Force, visited the Yasukuni Shrine in Tokyo. Many media organizations, as well as left-wing political parties including the Japanese Communist Party, have criticized the action as a possible violation of the vice defense minister’s official notice of November 19, 1974, and Articles 20 and 89 of the Constitution on the separation of religion and state.

The notice says that any SDF unit should refrain from visiting Shinto shrines, Buddhist temples, and other places of religious worship and from forcing SDF personnel to participate in such visits. The notice ignores national traditions and customs, as well as comparison with other countries, and the flat denial of the Yasukuni visit represents aftereffects of Japan’s defeat in World War II, just like the theory of the unconstitutionality of the SDF.

Notice should be repealed

In the first place, the separation of religion and state should not be based on any strict separation theory that prohibits the state from having any relationship with religion, but should be interpreted as meaning that any particular religion should not be adopted as the state religion.

SDF personnel are those who are willing to sacrifice their lives to protect the country, depending on the situation, while the Yasukuni Shrine is a facility dedicated to soldiers who died fighting for their country. It is natural for SDF personnel to visit the Yasukuni Shrine. Therefore, the aforementioned notice must be repealed.

Furthermore, the notice is outdated and fails to conform to a key Supreme Court ruling.

Leftists have filed numerous lawsuits claiming groundbreaking ceremonies, public spending on Shinto shrines, the prime minister’s visit to the Yasukuni Shrine, and village festivals as violating the separation of religion and state. Although some lower court rulings recognized unconstitutionality for some suits, the Supreme Court in its ruling on a Shinto groundbreaking ceremony on July 13, 1977, set forth the so-called purpose-effect theory that any act does not violate the constitutional separation of religion and state unless the purpose of the act has religious significance and the effect of the act supports, encourages, promotes, oppresses, or interferes with religion. The ruling attempted to finally settle confusing cases over the separation.

The notice predated this Supreme Court ruling and had to be repealed when this ruling was issued.

What’s wrong with the visit?

The impression is that the purpose-effect theory regarding the constitutional separation of religion and state has slightly receded since then due to the Supreme Court’s ruling on April 2, 1997. The top court ruled that it was unconstitutional for Ehime Prefecture officials to make tens of thousands of yen payment to the Yasukuni shrine. However, the ruling did not reject the purpose-effect theory per se.

This ruling was met with dissenting opinions from Chief Justice Toru Miyoshi and Justice Tsuneo Kabe. Justice Kabe’s lengthy dissenting opinion deserves special mention. “It is extremely difficult to follow the context of the majority opinion logically. It is hardly deniable that [the act of offering tens of thousands of yen] has an aspect as a social ritual. Therefore, I can’t but say the religious significance of the act is considerably diminished,” Kabe said. “As for support, encouragement and promotion, they lack any substance, and [the majority opinion] is merely frightened by the shadow of State Shintoism.”

The recent visit to Yasukuni by SDF personnel should not be condemned.

Katsuhiko Takaike is an attorney-at-law and Vice President of the Japan Institute for National Fundamentals.