[Case Law Analysis] The Tsu Groundbreaking Ceremony Case (Is a groundbreaking ceremony hosted by a city unconstitutional? / Separation of Church and State)

Basic Information

Supreme Court Grand Bench Judgment, July 13, 1977
(1971 (Gyo-Tsu) No. 69: Case regarding the cancellation of administrative disposition, etc.)
(Minshu Vol. 31, No. 4, p. 533)

Summary of Facts

On January 14, 1965, at a construction site in Funado-cho, Tsu City, Mie Prefecture, a groundbreaking ceremony (jichinsai) for the Tsu City Gymnasium was held. This ceremony was facilitated by city officials and presided over by priests from the religious corporation D Shrine, and was conducted according to Shinto rites.

The appellant, the mayor of Tsu at the time, paid 7,663 yen from the city's public funds for the expenses of this ceremony.

A resident lawsuit was filed, claiming that this expenditure of public funds violated the principle of separation of church and state stipulated in Articles 20 and 89 of the Constitution. Note that the defendant was the mayor.

The first instance (Tsu District Court) ruled that the groundbreaking ceremony was not a "religious activity" aimed at supporting Shinto, but rather a "customary event," and since the mayor had no intention of supporting a specific religious organization (D Shrine), it did not violate the separation of church and state and was constitutional.

The second instance (Nagoya High Court) ruled that the groundbreaking ceremony was a "religious ritual inherent to Shrine Shinto," and that "religious activity" as referred to in Article 20, Paragraph 3 of the Constitution should cover all acts that are expressions of religious faith; therefore, it determined that the groundbreaking ceremony was unconstitutional. Consequently, the mayor's expenditure of public funds was also determined to be unconstitutional.

Dissatisfied with this, the mayor appealed to the Supreme Court.

Judgment

Quashed and decided by the Supreme Court

The full text of the Supreme Court judgment can be searched here. (Please enter "1971 (Gyo-Tsu) No. 69" for the case number.)

Explanation

The "Tsu Groundbreaking Ceremony Case" is the Supreme Court precedent that established the "purpose and effect test," which is one of the methods for determining violations of the separation of church and state. The points at issue were:

1. Interpretation of "religious activity" as referred to in Article 20, Paragraph 3 of the Constitution
2. Legal nature of the groundbreaking ceremony in this case
3. Expenditure of public funds and Article 89 of the Constitution

1. Interpretation of "religious activity" as referred to in Article 20, Paragraph 3 of the Constitution

The appellant argued that the groundbreaking ceremony in this case was a "customary event that has been accepted and practiced as a general social custom" and did not fall under the category of "religious activity" under the Constitution.

On the other hand, the appellee argued that "religious activity" under the Constitution should be "any act that is an expression of religious faith," and therefore, the groundbreaking ceremony in this case, being a "religious ritual inherent to Shrine Shinto," should be subject to regulation under Article 20, Paragraph 3 of the Constitution.

Regarding this point, the Supreme Court first ruled that the principle of separation of church and state "does not mean that the state is absolutely forbidden from having any connection with religion," but rather prohibits "connections that exceed the limits considered reasonable in light of the aforementioned conditions." The criteria for judgment was that an act is considered a religious activity if its purpose has "religious significance" and it results in "acts that support, promote, or facilitate, or suppress or interfere with religion."

(2) Legal nature of the groundbreaking ceremony in this case

The appellant argued that the groundbreaking ceremony in this case was a "customary event" and did not have religious purposes such as the propagation of Shinto.

The appellee argued that because it was presided over by a Shinto priest and conducted in a manner unique to Shinto, it was a religious activity.

The Supreme Court, while acknowledging the religious aspects of the groundbreaking ceremony in this case, judged that in recent years, the groundbreaking ceremony itself "is evaluated as a secular event as a social ritual that has become customary when starting construction."

It concluded that the purpose of the groundbreaking ceremony itself is "exclusively secular, to perform a ritual in accordance with general social customs," and as for its effect, "it cannot be recognized as aiding, promoting, or encouraging Shinto, or imposing pressure or interference on other religions," and therefore it does not constitute a religious activity as referred to in Article 20, Paragraph 3 of the Constitution.

(3) Expenditure of public funds and Article 89 of the Constitution

The appellant argued that the expenditure in this case was "remuneration for services" to the Shinto priest and had no religious intent, and therefore did not violate Article 89 of the Constitution.

The appellee argued that because the groundbreaking ceremony itself is unconstitutional, the expenditure resulting from it is also unconstitutional.

Regarding the expenditure in this case, the Supreme Court concluded that since the groundbreaking ceremony does not violate Article 20, Paragraph 3 of the Constitution, the expenditure in this case "cannot be said to be a financial aid-like expenditure to a specific religious organization or religious group," and therefore does not violate Article 89 of the Constitution or the Local Autonomy Act.

As a result, the Supreme Court denied the unconstitutionality of the groundbreaking ceremony in this case and the expenditure of public funds related to it, dismissed the judgment of the second instance, and also dismissed the appellee's (plaintiff's) appeal to the High Court.

Furthermore, regarding the principle of separation of church and state, it stated that "complete separation" between the state and religion is "nearly impossible in practice," and recognized the limits of violations of the separation of church and state. Therefore, it established the Purpose and Effect Test, which states that the judgment of a violation must be "judged objectively in accordance with social norms" based on the situation, purpose, and effect.

*Text in "" is quoted from the judgment.

References

• Supreme Court Judgment (1971 (Gyo-Tsu) No. 69)

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