[Introduction to the Constitution #13] Can there be a state-led religion? (Specifics of Human Rights: Separation of Church and State)

What is the separation of church and state?

The principle of separation of church and state is one of the constitutional principles known as institutional guarantees. First, let's check the legal provisions.

As stated in Article 20, Paragraph 3 and Article 89 of the Constitution, the principle of separation of church and state in the Japanese Constitution prohibits religious organizations from having political functions (Article 20, Paragraph 1), prohibits religious activities by the state (Article 20, Paragraph 3), and prohibits the expenditure of public funds for religious purposes (Article 89).

Note that the concept of institutional guarantees is explained here.

Significance of the separation of church and state

So, why does the separation of church and state exist? While this is a topic that also relates to institutional guarantees, this principle is a principle for protecting the rights of the people. So, what specific rights does it protect?

First, what the separation of church and state protects is the freedom of religion. When the state becomes linked to a specific religion, the possibility arises that policies unfavorable to people who believe in other religions or to those who are non-religious will be decided. To resolve this disadvantageous situation, there will also be people who are forced to believe in that religion against their own beliefs. This would make it impossible to protect the freedom of religion.

Furthermore, the purpose of the principle of separation of church and state is to prevent state-led persecution of some citizens based on religion and to prevent conflicts caused by inter-religious disputes.

Additionally, it also serves to prevent democracy from being threatened by the collusion of church and state.

Limits of violations of the separation of church and state

So, what should be done if the administration performs an act that violates the principle of separation of church and state?

First, as a resident, you cannot, in principle, file a lawsuit in court based on a violation of the separation of church and state by a local government or the state. This is because Japanese courts only accept lawsuits after an individual has suffered a concrete infringement of their interests.

So, does that mean there are no lawsuits regarding violations of the separation of church and state at all? That is not the case. Two important precedents are presented below. So, how were those lawsuits filed?

For example, if a local government provides some form of convenience to a religious organization (such as spending public funds or providing land free of charge), residents can file a request for an audit or a resident lawsuit based on the Local Autonomy Act, and consequently argue that the principle of separation of church and state has been violated.

So, what criteria do courts actually use to determine whether the principle of separation of church and state has been violated? That is the purpose-effect test.

Purpose-Effect Test

This is the standard for determining whether a specific case actually violates the principle of separation of church and state. It judges whether the administrative act has

(1) Purpose (does the act have religious significance?)
(2) Effect (does the act constitute support, promotion, or exclusion of a specific religion?)

and whether it can be considered 'reasonable' according to social norms, to determine if it is unconstitutional.

Incidentally, this is the standard established in the Tsu Ground-Breaking Ceremony Case, which is also introduced below.

Important Precedents Regarding Separation of Church and State

Now, let's introduce important precedents regarding the principle of separation of church and state.

Tsu Ground-Breaking Ceremony Case

This is a precedent in which it was disputed whether a ground-breaking ceremony held by the city of Tsu using public funds for the construction of a new municipal gymnasium violated the separation of church and state. We explain this in detail in the following article, so please take a look if you are interested.

Ehime Prefecture Yasukuni Shrine Tamagushiryo Lawsuit

This is a precedent in which it was disputed whether the payment of tamagushiryo (offering fees) by Ehime Prefecture using public funds for the support of bereaved families of the war dead violated the separation of church and state. We explain this in detail in the following article, so please take a look if you are interested.

Summary of This Session

• Article 20 (second sentence of paragraph 1 and paragraph 3) and Article 89 of the Constitution stipulate the separation of church and state.

• The separation of church and state is a type of institutional guarantee that prohibits the state from favoring, excluding, or spending public funds on specific religious organizations.

• The 'purpose-effect test' is used to determine violations of the separation of church and state.

• Important precedents include the 'Tsu Ground-Breaking Ceremony Case' and the 'Ehime Prefecture Yasukuni Shrine Tamagushiryo Lawsuit'.

Summary of This Session

• Article 20 of the Constitution guarantees the freedom of religion for citizens.

• Freedom of religion shall not be subject to any interference as long as it remains within the inner realm of the mind.

• Freedom of thought and conscience includes: (1) freedom of belief, (2) freedom of religious acts, and (3) freedom of religious association.

A Request to Our Readers

Reader Feedback Form: “Hogaku no Yoridokoro” Reader Form – Fill out the form
We welcome your thoughts on our articles and requests for topics you would like us to explain. Please also use this form to point out any errors. We have also set up a note Q&A box. (Link:

https://note.com/qa/hogakuyoridokoro) We are accepting questions here as well. Even trivial questions are encouraging to receive. Our X account (

https://x.com/hogakuyoridokor) provides article updates and legal trivia. Please be sure to follow us.

Related Articles

A list of other Introduction to the Constitution articles can be found here.