(Mar. 12, 2021) On February 24, 2021, Japan’s Supreme Court ruled that it was unconstitutional for the city government of Naha, Okinawa Prefecture, to exempt a Confucian temple from paying land usage fees because such an exemption violated the principle of separation of religion and state. (2019(Gyo-tsu)222 (S. Ct., Feb. 24, 2021), in Japanese; to read decision, click PDF icon.)
The facility at the center of the case is a Confucian temple that was originally built by descendants of the Kume Thirty-six Clans in the Kume area of Naha City in the 17th century. The Kume Thirty-six Clans came from China in the late 14th century and for the next 300 years or so enriched Japan with their high-level skills in marine voyaging, shipbuilding, and translating between Chinese and Ryukyuan (a language in old Okinawa). The original temple was burned down during World War II. After the war, a second temple was built in a different area where the incorporated association formed by the descendants owned the land. When Naha City planned to expand a city park in the Kume area, the association requested the city to let them move the temple to the expanded park area. After obtaining the city’s permission, the association rebuilt the temple in 2013. The city’s mayor then exempted the temple from paying rent for the land in the park under the authority of a city ordinance. (Naha City Parks Ordinance, Ordinance No. 6 of 1970 (Apr. 11, 1970), as amended, art. 11-2.)
In 2014, a resident of Naha City filed a lawsuit claiming the city’s decision not to charge the rent was unconstitutional.
The Constitution of Japan (1946) established the principle of separation of religion and state. Article 20, paragraph 1 and article 89 state as follows:
Article 20. Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.
. . . .
Article 89. No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.
In 2010, in a similar case (2007 (Gyo-Tsu) 260, Minshu Vol. 64, No. 1 (S. Ct., Jan. 20, 2010) in which a city leased its land to a Shinto shrine for free, the Supreme Court decided that the city’s act violated the Constitution. The principle of separation of religion and state under the Japanese Constitution has been discussed mainly concerning the Shinto faith. According to the Association of Shinto Shrines, “Shinto is the indigenous faith of the Japanese people. In general, Shinto is more than a religion and encompasses the ideas, attitudes, and ways of doing things.” While Shinto is generally regarded as a kind of religion, in the present case, the facility concerned is a Confucian temple, and in Japan, many people regard Confucianism as a philosophy, not a religion. Therefore, Confucian temples are not necessarily regarded as religious facilities, and some people were curious as to whether the Supreme Court would decide whether Confucianism is a religion in Japan.
The Supreme Court did not decide whether Confucianism was a religion. However, the court acknowledged the religious aspects of the Confucian facility, noting that the main building of the temple in which a statute of Confucius is placed has attracted many worshippers, similar to a Buddhist temple or a Shinto shrine. Also, the court regarded the annual ceremony to mark the birthday of Confucius as a religious act because it was meant to invite, greet, and then send back the spirit of Confucius.
The city and the descendants’ association that participated as an interested party argued that its historical value and significance as a tourist spot justified the exemption of the rent. However, the court discounted the historic value because the association had rebuilt the temple in 2013 and it is not a replica of the original. Moreover, the temple was not designated as a public monument. The court therefore ruled that the temple’s significance as a tourist spot could not warrant free land usage.