Introduction 

Exploration of the principle of separation of religion and state

The "principle of separation of religion and state" sets a certain limit on the intertwining of the state and religion. Some may have encountered this principle in classes such as Japanese history or civics, while others might have studied legal cases in college.

However, for many, this principle may not feel particularly close to their daily lives.

This lawsuit aims to address actions that violate the principle of separation of religion and state. It seeks to ensure the adherence to this principle and, more importantly, to prevent the constraints or coercion of individual freedom of beliefs. Even though many might not be familiar with this principle, this lawsuit underscores its importance in safeguarding personal beliefs and preventing infringement.

 Overview of the litigation 

The Yamaguchi Prefectural Governor's official visits to the Gokoku Shrine and the expenditure of public funds

The governor of Yamaguchi Prefecture makes official visits to the Gokoku Shrine's memorial festivals every spring and autumn, expending public funds for this purpose. These official visits by the governor occur twice a year, with four individuals participating in each visit. Last spring, the transportation costs for one visit for one person amounted to 990 yen.

Similar to Yasukuni Shrine, Gokoku Shrine is a religious institution that honors individuals believed to have died for the nation (or the Emperor). Before World War II, it served as a religious institution intertwined with State Shinto, supporting a militaristic regime under the unity of state and religion.

The issue here is whether the governor’s visits to the shrine in an official capacity, representing the local government rather than as a private individual, violates the principle of separation of religion and state.

When looking at other prefectures, some refrain from visiting Gokoku Shrine citing violations of the principle of separation of religion and state as the reason. In the nationwide survey conducted by the plaintiffs in 2021, responses were received from 39 prefectures where, among them, 32 prefectures stated they did not visit the shrines. Moreover, seven prefectures, despite receiving visit requests, cited constitutional concerns as reasons for not visiting.

Despite such circumstances, in Yamaguchi Prefecture, the governor continues official visits to Gokoku Shrine, justifying the actions by stating that there has been no court judgment declaring the visits unconstitutional in spite of the public demand to refrain from official visits.

▲Report on the Result of the Nationwide Survey in 2021 conducted by the plaintiffs regarding the official visit

Background and History of the Lawsuit — A Struggle for Freedom of Religion

The origins leading to the filing of this lawsuit can be traced back to a historical struggle for freedom of religion. Specifically, it stems from the Self-Defense Forces Anti Joint Enshrinement Lawsuit initiated in 1973.

The Anti Joint Enshrinement Lawsuit revolved around the unconstitutional and unlawful act of the Yamaguchi Gokoku Shrine and the Self-Defense Forces conspiring to enshrine arbitrarily the deceased husband of Mrs. Yasuko Nakatani, even though she refused such enshrinement.

In this lawsuit, Mrs. Nakatani's religious and personal rights were acknowledged in the first and second instances, resulting in victory. However, in 1988, the Supreme Court overturned the decision, leading to a loss for Mrs. Nakatani. Consequently, her husband remained enshrined against her wishes.

The Supreme Court cited two main reasons for the reversal: 1) the enshrinement act was not considered a state action, and 2) recognizing damages, such as discomfort due to interference with one's own religious life, could harm the freedom of religion of the opposing party. Therefore, the court ruled against the plaintiff, asserting tolerance towards other bereaved families and the Yamaguchi Gokoku Shrine that opted for the enshrinement. While the case shares the theme of the infringement of freedom of religion by the state, it differs in that the present case is a citizen lawsuit, which does not involve infringed interests.

Following the defeat in the Supreme Court, the "Society for Seeking the Rights of Minority Individuals Saying 'No' to Joint Enshrinement" (hereinafter referred to as the "Seeking Society") was established. The "Seeking Society" annually holds a protest gathering called the "Protest Against the Unjust Supreme Court Decision on the Self-Defense Forces Anti Joint Enshrinement Lawsuit" near the anniversary of the Supreme Court decision. They also engage in activities advocating for the withdrawal of enshrinement. In recent years, they have expanded their efforts to monitor and correct various infringements on freedom of mind and beliefs.

Mrs. Nakatani's struggle was based on her assertion that Yamaguchi Prefecture's enshrinement of her husband at Gokoku Shrine constituted an infringement on the individual's freedom of religion by the state, a claim not acknowledged by the Supreme Court.

The governor's official visits to Yasukuni Shrine similarly have the potential to violate individual freedom of religion, as the state surpasses its relationship with religion. Furthermore, the shrine's enshrinement includes war heroes, including Mrs. Nakatani's husband, making it a shrine to war deities.

Therefore, the governor's official visits to the shrine not only disregard Mrs. Nakatani's struggle but also the ongoing efforts of the "Seeking Society" advocating for the withdrawal of enshrinement, and it represented an act that the plaintiffs could not ignore.

▲“Newspaper by the National Association for the Self-Defense Forces Anti Joint Enshrinement Lawsuit,” 1982 September 21.

In response to the official visits to Yasukuni Shrine, the plaintiffs made efforts in urging the governor to cease these visits, including submitting requests for the cessation of visits. However, as the governor did not stop the visits, the plaintiffs decided to take legal action.

Objectives of the Plaintiffs through this Lawsuit

Through the lawsuit, the plaintiffs aim to inform the public about the true nature of Yasukuni Shrine and Gokoku Shrine. They seek to provide an opportunity for individuals to contemplate their freedom of mind and beliefs, enabling each person to reclaim their sense of "self." Ultimately, they hope this process will contribute to rectifying the widespread infringement of freedom of mind.

Furthermore, the plaintiffs anticipate fostering a society where individuals, in line with the ideals expressed in the preamble of the constitution, become "citizens" who trust in the justice and integrity of peace-loving people.

Specifically, the objectives include the liberation of individuals confined by the official terms such as "war heroes" and "bereaved families" associated with Yasukuni Shrine and Gokoku Shrine. Additionally, they seek to address the issue of ongoing collection of shrine fees by local community associations and to correct the behavior of public officials prioritizing administrative orders over legal regulations. In a broader context, this can be seen as a way to realize liberation of individuals from the fixed ideologies of the superior values in success and possession.

 Previous lawsuits 

Differences from recent lawsuits and significance of this lawsuit

*Differences from recent lawsuits and the significance of this lawsuit

Lawsuits challenging violations of the principle of separation of religion and state have been filed before, and unconstitutional rulings have been made in cases such as the Ehime Tamagushi-ryo Lawsuit, the Sorachibuto Shrine Lawsuit, and the Confucius Temple Lawsuit.

Through these lawsuits, checks on violations of the principle of separation of religion and politics by the national or local governments have been established, ensuring that an appropriate distance is maintained.

Recent lawsuits related to the separation of religion and state include the Lawsuit against Prime Minister Abe's visits to Yasukuni Shrine, the Lawsuit regarding the Imperial succession and Daijosai, and the Sukiden Lawsuit. However, these face two significant challenges: the first is the barrier of the infringed interests, meaning that the court does not recognize the act by the administration as a violation of rights, even if it violates the constitution and law, unless it is the but-for cause of the plaintiff's bodily or mental damages. Another barrier is legal precedents, as there are few past cases where courts decided on the issue of whether individual rights infringement is due to a violation of the principle of separation of religion and state.

On the other hand, there is a method of addressing the illegality of the use of municipal funds through a citizen lawsuit to question the legality of the use of funds by local governments. In this case, it becomes possible to surpass the barrier of the infringed interests.

This time, the situation has aligned with "the ability to raise a citizen lawsuit," "the absence of past rulings on the unconstitutionality of similar acts," and "the high possibility that the court can make a judgment that declares unconstitutional based on past rulings on separation of religion and state lawsuits." Therefore, I have come to the conclusion that it is an effective means to file a lawsuit for the establishment of freedom of mind.

 Use of donations 

1. Transportation expenses for witnesses, etc. - 100,000 yen
2. Expert Opinion expenses - 200,000 yen
3. Legal fees - 500,000 yen
4. Other (related to the lawsuit) - 200,000 yen
Total: 1,000,000 yen

The above is an approximate budget for the first instance at the Yamaguchi District Court. For the appeal instance at the Hiroshima High Court, we plan to set a new target and address it accordingly. Since the plaintiffs are residents of Yamaguchi Prefecture, we hope to budget for the transportation expenses of the plaintiffs in the case of an appeal if possible.

However, currently, we prioritize allocating funds to legal fees, and ideally, we are considering organizing a legal team. Therefore, we prioritize funding for this purpose for now.

Plaintiff's thoughts

I will provide information about myself (Taisaku Obata) among the eight plaintiffs.

Since childhood, I have harbored doubts and resistance towards the imposition of various things by schools and communities. Despite twists and turns, I continued to seek freedom and eventually found my path in Christianity, becoming a pastor in 1997.

In 2003, upon coming to Yamaguchi Prefecture, I encountered Ms. Yasuko Nakatani, a former plaintiff in the lawsuit against the Joint Enshrinement of SDF Members at Yasukuni Shrine (hereinafter referred to as the "Anti Joint Enshrinement Lawsuit"), and learned about their struggle for freedom and joined their efforts. Since 2023, I have taken on the role of representative and secretary-general of the "Seeking Society," succeeding the aforementioned lawsuit.

Freedom of religion (Article 20 of the Constitution) and freedom of thought and conscience (Article 19 of the Constitution) are fundamental human rights established as a result of reflection on the country's past aggressive wars. Any act that violates these rights is a violation of basic human rights and unconstitutional. Furthermore, such violations imply an affirmation of the past aggressive wars.

Yasukuni Shrine, like Gokoku Shrine, justifies and glorifies past aggressive wars. Therefore, protests against the visits of members of the National Diet to Yasukuni Shrine are raised by formerly invaded countries. However, the majority of the Japanese people overlook the actions of their representatives. As a result, these actions hinder the trust of the international community in the Japanese people.

▲ Lieutenant General Matome Ugaki, enshrined as a war hero at Yasukuni Shrine, led his subordinates on a kamikaze mission towards Okinawa from the Oita naval air base on the evening of August 15, following the 'Jewel Voice Broadcast.' He believed in the immortality of the divine land and, with regret, ordered his subordinates to accompany him. The photo depicts a memorial monument erected on the approach to the Okayama Prefecture Gokoku Shrine, honoring the young men who died in this manner. (Photo by Satsuya Namba)

▲ Speech by the Governor of Yamaguchi Prefecture at the Gokoku Shrine Memorial Festival. The governor repeatedly refers to and commemorates war victims as 'spirits of valor'.

Distrust begets new distrust, ultimately leading to hostility. The result is the unchecked militarization of this nation, which knows no bounds.

However, and I reiterate, many Japanese citizens remain largely indifferent to the visits to Yasukuni Shrine by members of the National Diet who advocate the justification and glorification of past aggressive wars.

Moreover, from the past to the present, this sentiment has manifested in the court judgments of several cases filed regarding the issue of the separation of religion and state.

I believe that achieving freedom of thought, conscience, and religion is the path to realizing true peace.

Indeed, it is only through the restriction of these freedoms that the execution of war becomes possible.

 Comment from an attorney 

In Yamaguchi Prefecture, despite requests from the residents to refrain from official visits to the Yasukuni Shrine, the local government proceeded with such visits, citing the absence of a court ruling declaring them unconstitutional. This has led to a lawsuit by the residents.

The Yamaguchi Prefecture's belief that it is acceptable to engage in official visits as long as there is no clear illegal ruling from the court should be corrected. I have accepted this case in the hope that this lawsuit will be a catalyst for such correction.

 Attorney in charge 

Hitomi Tagawa   Fukuoka Bar Association   PEACE Legal Professional Corporation, Moji Chuo Law Office

 Final Remark 

Your support is a significant force that enables the plaintiffs and their legal representatives to continue their activities.

The infringement of freedom of mind is invisible and may be difficult to understand, and one might become accustomed to it. However, by the time one realizes it, it may be too late. Let's change the direction of our path from war to peace.