Freedom of Religion (Article 20) in Japan: What are the Implications of "Separation of Religion and State" for Businesses?

Article 20 of the Constitution of Japan serves as the bedrock for religious liberty and the principle of separation of religion and state. Enacted in the post-World War II era, it reflects a deliberate departure from the pre-war system where State Shinto held a privileged position, profoundly influencing governance and individual lives. Understanding the scope of religious freedom guaranteed to individuals and groups, and the nuanced interpretation of the separation principle by Japanese courts, provides crucial context for the societal and, indirectly, the business environment in Japan.

Article 20 of the Constitution states:

1. "Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority."
2. "No person shall be compelled to take part in any religious act, celebration, rite or practice."
3. "The State and its organs shall refrain from religious education or any other religious activity."

This article will explore these provisions, examining the extent of religious freedom, the complexities of the "separation of religion and state" (政教分離原則, seikyō bunri gensoku), key judicial interpretations, and potential, albeit often indirect, implications for businesses operating in Japan.

The Ambit of Religious Freedom: Article 20(1) and 20(2)

The primary guarantee of religious freedom (信教の自由, shinkyō no jiyū) is found in the first sentence of Article 20(1): "Freedom of religion is guaranteed to all." This protection extends to both individuals and religious organizations.

Key Aspects of Religious Freedom:

• Freedom of Religious Belief (Internal Aspect): This includes the freedom to hold or not to hold any religious belief, or to change one's beliefs. This internal aspect of conscience is considered absolute and inviolable by state power.
• Freedom to Engage in Religious Acts and Practices (External Aspect): This encompasses the liberty to manifest one's religion or belief in worship, observance, practice, and teaching. This includes establishing religious organizations, conducting religious ceremonies, engaging in missionary work, and providing religious education within religious groups.
• Freedom from Religion (Negative Aspect): Article 20(2) reinforces this by stating, "No person shall be compelled to take part in any religious act, celebration, rite or practice." This protects individuals from state coercion in religious matters, ensuring the freedom not to believe or participate.

Limitations on the External Manifestation of Religious Freedom:
While the internal freedom of belief is absolute, the external manifestation of religion – religious acts and practices – is not without limits. Like other fundamental freedoms, it can be subject to restrictions when necessary for the "public welfare" or to protect the rights and freedoms of others. Japanese courts have addressed situations where religious practices have come into conflict with general laws aimed at maintaining public order, health, and safety.

• The Kaji Kitō (Incantation/Faith Healing) Case (Supreme Court, May 17, 1963): This case, and others like it, often deal with situations where religious practices, such as incantations or faith healing rituals, result in physical harm (injury or death) to participants or third parties. The courts have generally held that religious acts are not immune from criminal liability if they involve negligence or intentional harm that violates general penal laws designed to protect life and bodily integrity. Such decisions illustrate that the freedom to practice religion does not extend to acts that cause direct, tangible harm to others or seriously contravene fundamental societal norms regarding safety and well-being. The state's interest in protecting its citizens from such harm can justify limitations on certain external religious practices.
• Indirect Burdens and State Accommodation: The Jehovah's Witness Kendo Refusal Case (Supreme Court, March 8, 1996):
  This significant case involved a student at a public high school who, as a Jehovah's Witness, refused to participate in mandatory kendo (Japanese martial art) classes due to his religious beliefs, which prohibited participation in martial arts. As a result of his refusal, the school authorities refused to promote him to the next grade, leading to his effective expulsion.
  The Supreme Court found the school's actions illegal and an abuse of discretion. The Court recognized the sincerity of the student's religious beliefs and the significant burden placed upon his religious freedom by the school's inflexible stance. It emphasized that the school, as a state organ, had a responsibility to consider less restrictive alternatives or reasonable accommodations (such as allowing an alternative physical education activity or a supplementary report) before taking such a drastic measure. The Court held that the school's decision to compel participation in kendo without offering any alternative, and then imposing severe academic sanctions for refusal based on sincere religious conviction, exceeded the bounds of reasonable educational discretion and constituted an impermissible infringement on the student's religious freedom guaranteed by Article 20. This case is crucial for understanding how Japanese courts approach "indirect" burdens on religious freedom imposed by state actors and the expectation for reasonable accommodation.
• Organizational Misconduct: The Aum Shinrikyo Dissolution Order Case (Supreme Court, January 20, 1996):
  This case concerned the religious organization Aum Shinrikyo, which was responsible for heinous crimes, including the 1995 sarin gas attack on the Tokyo subway. Following these events, the government sought and obtained a court order to dissolve the organization under the Religious Corporations Act.
  The Supreme Court upheld the dissolution order. While the dissolution of a religious corporation inevitably impacts the collective religious activities of its members, the Court found such a measure justifiable given the extreme nature and severity of the illegal acts committed by the organization, which posed a grave and imminent threat to public safety and order. This case demonstrates that the freedom to form and maintain religious organizations, while protected, is not absolute and can be curtailed when an organization systematically engages in serious criminal activities that threaten society. The burden on the religious freedom of innocent members was considered an unavoidable consequence of addressing the organization's profound societal harm.

The Principle of Separation of Religion and State (Seikyō Bunri Gensoku)

A core component of Article 20 is the principle of separation of religion and state, articulated in the latter part of Article 20(1) ("No religious organization shall receive any privileges from the State, nor exercise any political authority") and in Article 20(3) ("The State and its organs shall refrain from religious education or any other religious activity").

Purpose and Interpretation:
The primary purpose of this separation principle is twofold:

1. To safeguard religious freedom for all individuals and groups by ensuring that the state remains neutral in religious matters, neither favoring nor discriminating against any particular religion.
2. To maintain the secularity of the state and its functions, preventing religious institutions from wielding political power or the state from becoming unduly entangled in religious affairs. This is a direct response to the historical experience of State Shinto in pre-1945 Japan, where a specific interpretation of Shinto was intertwined with state ideology and governance.

Key Issues and Judicial Application – The "Purpose and Effect" Test:
The practical application of the separation principle has been most notably tested in cases involving state interaction with religious institutions or practices. The leading case in this area is the Tsu City Jichinsai (Groundbreaking Ceremony) Case (津市地鎮祭訴訟, Tsu-shi Jichinsai Soshō), with a Supreme Court judgment on July 13, 1977.

• Facts of the Tsu City Jichinsai Case: The city of Tsu, in Mie Prefecture, sponsored and funded a Shinto groundbreaking ceremony (jichinsai) for the construction of a municipal gymnasium. This use of public funds for a religious ceremony was challenged as a violation of the separation principle.
• The Supreme Court's "Purpose and Effect Test" (目的効果基準, mokuteki kōka kijun): The Supreme Court, in upholding the city's action, articulated what has become known as the "purpose and effect test." According to this test, a state action involving religion is deemed constitutionally permissible if its primary purpose is secular and its principal effect neither advances nor inhibits religion, nor results in excessive entanglement between the state and religion.
• Application and Outcome: The Court found that the jichinsai, in contemporary Japanese society, had largely become a secularized customary practice rather than a purely religious one. It concluded that Tsu City's purpose in holding the ceremony was secular (to ensure the safety and smooth progress of the construction project and to adhere to social custom) and that its effect on religion (i.e., promoting Shinto) was minimal and indirect. Therefore, the Court held that the city's involvement did not violate the separation principle.

The Tsu City Jichinsai decision has been influential but also subject to considerable academic criticism for being overly lenient and for potentially allowing a degree of state entanglement with religion that might not be countenanced under stricter interpretations of separation. The "purpose and effect test" itself, while providing a framework, involves subjective judgments about what constitutes a "secular purpose" and what level of "effect" on religion is permissible.

Other contexts where the separation principle is debated include:

• Official Visits to Yasukuni Shrine: The Yasukuni Shrine in Tokyo enshrines Japan's war dead, including individuals convicted as Class A war criminals after World War II. Visits to the shrine by Prime Ministers and other high-ranking government officials in their official capacity have been highly controversial, both domestically and internationally, raising questions about whether such visits constitute state endorsement of Shinto or a particular nationalistic ideology linked to the shrine's history. While the Supreme Court has generally avoided direct, definitive constitutional rulings on the merits of these visits, numerous lower court cases have grappled with their constitutionality under Article 20.
• Religious Education in Public Schools: Article 20(3) explicitly prohibits "religious education or any other religious activity" by the state and its organs, which includes public schools. This means public schools cannot promote any particular religion or conduct religious instruction aimed at inculcating specific faiths. However, teaching about religions from an objective, academic perspective (e.g., in history or social studies classes) is generally considered permissible.

The Nature of Separation in Japan:
The jurisprudence emerging from cases like Tsu City Jichinsai suggests that the Japanese model of separation of religion and state is often interpreted not as a rigid "wall of separation" (a metaphor sometimes used in U.S. constitutional discourse) but rather as a principle requiring state neutrality and prohibiting coercion or favoritism. It allows for a degree of interaction or accommodation between state and religion, provided the state's actions do not primarily serve religious purposes or have the principal effect of promoting or inhibiting religion in a way that infringes upon the religious freedom of others or compromises state neutrality.

Indirect Implications for the Business Environment

Article 20 of the Constitution primarily imposes obligations and restrictions on "the State and its organs." It does not directly regulate the conduct of private individuals or private businesses in the same way. Therefore, a private company is generally not bound by the separation of religion and state principle in its internal affairs or its dealings with other private entities. However, the constitutional guarantees of religious freedom and the principles underlying state neutrality can have several indirect implications for the business environment and corporate practices:

1. Employee Religious Freedom and Accommodation:
   • While Article 20 does not directly mandate private employers to accommodate all employee religious practices, the spirit of religious freedom it embodies, coupled with general principles of fair treatment under labor law and broader anti-discrimination norms, can be influential.
   • The Jehovah's Witness Kendo Refusal Case, although involving a public school (a state actor), highlights a judicial sensitivity to sincere religious objections and the value of seeking reasonable alternatives before imposing significant burdens on an individual's ability to practice their faith. This judicial attitude could inform how courts might approach disputes in the private employment context if, for example, an employee claims that a seemingly neutral work rule unnecessarily and substantially burdens a sincere religious practice and seeks accommodation under anti-discrimination provisions of labor law.
   • As a matter of good human resources practice and to foster an inclusive work environment, businesses in Japan may find it beneficial to consider reasonable accommodations for employees' religious observances (e.g., flexibility for prayer times, adjustments to dress codes where feasible, consideration of dietary restrictions in company cafeterias, or scheduling to avoid conflicts with major religious holidays or Sabbath observance for relevant employees), provided such accommodations do not cause undue hardship to the business's operations.
2. Corporate Engagement with Religion:
   • A private business is generally free to make donations to religious organizations, sponsor religious events, or incorporate religious values into its corporate philosophy, provided such actions are voluntary and not coercive towards employees or discriminatory towards customers.
   • However, if a company's strong identification with a particular religion leads to practices that are perceived by employees as coercive (e.g., pressure to participate in company-sponsored religious services or to adhere to religious doctrines unrelated to job performance), or if it results in discriminatory treatment of employees or customers based on their religious beliefs (or lack thereof), this could lead to internal morale problems, reputational damage, or potential claims under labor or consumer protection laws.
3. Impact of State's Adherence to Separation on the Business Climate:
   • The state's adherence (or perceived lack thereof) to the separation principle can indirectly affect the broader business environment. Article 20(1) prohibits religious organizations from receiving "any privileges from the State." A consistent and neutral application of this principle helps ensure a level playing field where businesses (whether religiously affiliated or secular) compete fairly, without state-sponsored advantages based on religious connections.
   • Public controversies surrounding state actions that appear to blur the lines of separation (such as the Yasukuni Shrine visit debates) can sometimes create social tensions or even have diplomatic repercussions, which, in turn, might have an indirect or spillover effect on certain sectors of the economy or international business relations.
4. Cultural Context and Public Holidays:
   • Several national public holidays in Japan have historical or cultural links to religious traditions (e.g., New Year celebrations, some aspects of Golden Week holidays, or Obon, which, while not an official national holiday, sees widespread business closures and is rooted in Buddhist and ancestral veneration customs). These are generally accepted as part of Japan's cultural heritage and are largely secularized in their public observance. Businesses adapt their operations to these culturally significant periods as a matter of course, and this is generally not seen as a constitutional issue of state endorsing religion.

Conclusion

Article 20 of the Japanese Constitution provides a dual protection: it guarantees robust freedom of religion for all individuals and groups, and it establishes the fundamental principle of separation between religion and state. The freedom of internal religious belief is absolute, while external manifestations of religion are subject to limitations necessary for public welfare and the protection of the rights of others. Case law, such as the Jehovah's Witness Kendo Refusal Case, demonstrates judicial concern for protecting individuals from undue burdens on their sincere religious practices, especially when imposed by state actors.

The separation of religion and state, a principle deeply rooted in Japan's post-war commitment to religious neutrality, is most commonly interpreted through the "purpose and effect" test, as articulated in the Tsu City Jichinsai Case. This test allows for a degree of state interaction with religious customs or institutions, provided the state's primary purpose remains secular and its principal effect neither advances nor inhibits religion in a significant way. This approach often leads to a more accommodating interpretation of separation than a strict "wall."

While Article 20's constraints apply directly to the state and its organs, the constitutional values it upholds – individual religious autonomy and state neutrality – contribute to a societal environment where diversity of belief is, in principle, respected. For businesses, this translates less into direct constitutional mandates and more into an indirect influence on best practices in employee relations, the importance of fostering an inclusive corporate culture, and an understanding of how state actions relating to religion can shape the broader socio-economic landscape.