The Naha Confucius Temple lawsuit and religion-making in Japan’s courts of law

Abstract

This paper critically examines the process of “religion-making” as it occurs in Japanese courts of law, through an analysis of the recent Naha Confucius Temple case. The case concerned a small Confucius temple built on public land in Naha, the prefectural capital of Okinawa. The mayor of Naha had decided to waver lease for the land, since he considered the temple to be an “educational institution” focused primarily on disseminating knowledge about Okinawan history and local cultural heritage. Although the organization behind the temple was legally registered as a general incorporated foundation, the plaintiff argued that their activities and objectives were clearly religious in nature. In rulings handed down between 2018 and 2021, all three instances of the judiciary ruled in favor of the plaintiff, deciding that despite the organization’s legal status and stated objectives, their connection to Confucianism meant that they should be considered a “religious organization” under law.

Introduction

In February of 2021, the Japanese Supreme Court handed down their ruling in the Naha Confucius Temple case. The case centered upon a small Confucius temple (shiseibyō 至聖廟) which had been constructed on public land in the Kume 久米 district of Naha, the prefectural capital of Okinawa. Because of the historical role of Confucianism in Okinawa in general and in the local Kume area in particular, the municipal government had decided to waive the lease on the land on which the building stood, arguing that it was primarily an educational and cultural facility administered by a general incorporated foundation (ippan shadan hōji 一般社団法人). However, the plaintiff behind the lawsuit was of the opinion that Confucianism is a religion, because it is based on “belief in the spirits and souls of ancestors and on Heaven as a supernatural force” (Naha Confucius Temple Case, 2018, 5). Consequently, she argued that the Confucius Temple constituted a religious institution, and that by allowing it to stand rent-free on public land, the municipal government had in fact violated the principle of secularism as established in the Japanese constitution. Although they avoided conclusively answering the question of whether Confucianism is a religion or not, the judges and justices of all three levels of Japan’s judiciary ruled in favor of the plaintiff, concluding that by waiving rent for the land on which the temple stood, the Naha municipal government had given undue aid and support to what the courts ruled to be a de facto religious organization.

The Naha Confucius Temple case can be read as an example of judicial religion-making in contemporary Japan. One significant aspect of the lawsuit is that although many of the arguments presented in the proceedings are recognizable from earlier cases on state-religion relations (Larsson 2017, 2020), the basic dynamic has been reversed. Rather than representatives of minority communities bringing public officials to court for their involvement with Shinto shrines, who are normally perceived as representing the Japanese majority, this time the lawsuit was filed by a conservative activist against a minority community in Okinawa. In essence, the case saw secularism being used not to safeguard the rights of minorities against the majority, but to put an end to the collaboration between the Naha municipal government and an organization working to promote local heritage in an area that was once a village of Chinese immigrants in the independent Ryukyu Kingdom (Steben 1998, 40-42). At the same time, the case was also informed by contemporary trends in East Asian nationalism, with the historical ties between the Ryukyu Kingdom and the Ming Dynasty in China being equated with contemporary Chinese encroachments on Japanese territorial waters. Thus, while the lawsuit nominally centered on the question of whether a public actor had given unfair support to a religious organization, the dispute was mired in a number of other complex social and political debates.

Of course, this is often the case when religion is discussed in courts of law, regardless of whether the particular lawsuits focus on crucifixes in public schools (Bhuta 2014), the rights of Native Americans to freely exercise their religion (Staiger 1996), construction work in lands of particular significance to Australian Aboriginal communities (Wilson 2022, 106-115), or the banning of Muslim headwear in European public spaces (Pei 2013). Religious freedom is at its core about the right of individuals and groups to deviate both from other groups and from state norms (Brown 2008, 34-36), and as such, cases invoking the right to religious freedom tend to challenge national narratives about tolerance and homogeneity (Larsson 2022b; Nelson 2020). This dynamic can be observed when a non-democratic state such as the People’s Republic of China (PRC) utilizes the language of “evil cults” (Ch. xiejiao 邪教) to circumvent the country’s constitutional right to religious freedom in order to ban and persecute the Falun Gong movement (Edelman and Richardson 2005), but a similar use of language to favor majority positions over minorities is also commonplace in the legal institutions of democratic countries. Consider, for instance, how the same European Court of Human Rights (ECHR) in one instance could find crucifixes on classroom walls in public schools to be “passive symbols” compatible with secular law and not infringing upon the religious freedoms of others, whilst in another ruling conclude that a teacher wearing a Muslim headscarf violates secular norms by imposing religious identification on students (Bhuta 2014). While the direct consequences for the affected minority groups differ between liberal democracies and authoritarian states, notions about normal and proper behavior are present regardless of the system of governance.

Scholars of religious studies have long been aware of the problems inherent in the category of religion itself. While the debate about to what extent religion is useful as an analytical tool remains ongoing, many have landed on solutions echoing the statement made by Timothy Fitzgerald more than two decades ago: “the category ‘religion’ should be the object, not the tool, of analysis” (Fitzgerald 2000, 106; c.f. Nongbri 2013, 155; Taira 2016, 139; Wilson 2022, 5-6). Essentially, rather than approaching a social phenomenon based on the assumption that what it represents is religion and that therefore it functions in a particular manner, researchers are encouraged to explore the discursive processes through which religion is given meaning as a discourse (Taira 2016). However, while this can certainly be a suitable approach for scholars of religion, it is less useful for judges presiding over courts of law, where decisions can often depend upon the question of whether or not something is actually religion (Wilson 2022, 92-120). As Winnifred Sullivan (2005, 155) posited in her critique of religious freedom: “The instability of religion as a category […] limits the capacity of law to enforce rights to religious freedom. Modern law wants an essentialized religion.” In other words, while many scholars are now distancing themselves from definitions of generic religion, judiciaries around the world continue to assume the existence of sui generis religion, which in turn often leads to arbitrary decisions based on the preconceived opinions of the individuals deciding in a specific ruling (Larsson 2020; Sullivan 2005; Wilson 2022).

While religion as a category of law is often criticized in the context of religious freedom legislation, where the claims of minority groups to the status of religion or religious organization become central to the question of whether or not they can enjoy this particular freedom, the text of the Japanese constitution offers a context in which similar questions are frequently aimed at those who represent the supposed majority. The principle of secularism as found in the postwar constitution was written specifically to prevent the state from privileging Shrine Shinto (jinja shintō 神社神道), as one of several measures implemented to guarantee the freedoms of minority groups vis-á-vis the majority. This is also how the principle has generally been applied in lawsuits on state-religion relations (Gotō 2018; Larsson 2017). In this article I will argue that the Naha ruling represents a reversal of the earlier dynamic in cases on religion-state relations, as a plaintiff representing Japan’s social majority used the principle of secularism in order to oppose the efforts of her local government to support a minority institution. When ruling in favor of the plaintiff, all three instances of the judiciary relied on specific understandings of “essentialized religion,” thereby also illustrating the continued importance of studying courts of law as sites of religion-making.

Religion in the Japanese legal system

Before discussing the details of the Naha Confucius Temple case, a few words need to be said about the specifics of the Japanese legal context. The Constitution of Japan, unamended since it came into effect on May 3, 1947, reflects the sentiments of the victorious Allied powers in the early days of the occupation of Japan after World War II (Horii 2018, 59-61; Thomas 2019, 141-144). The constitution was drafted in English by order of the Supreme Commander for the Allied Powers (SCAP) in Japan, General Douglas MacArthur, in little more than a week in February of 1946, by a workgroup made up mostly of American servicemen (Dower 2000, 360-370). A few minor revisions were made following negotiations with Japanese lawmakers, after which the constitution was translated into Japanese, passed by both Houses of the Diet, and promulgated on November 3rd. While formally presented as a revision of the 1890 Constitution of Imperial Japan, for all intents and purposes, it was an entirely new document, representing a “unique wedding of monarchism, democratic idealism, and pacifism” (347).

One major policy priority for the Americans was dismantling the former ideological system which was at this point commonly referred to in English as “State Shinto” (Thomas 2019, 141-165). While it should be emphasized that Imperial Japan had no established “state religion” and was, at least from a legal point of view, guided by the principle of separation of religion and state, the American occupation authorities disagreed with how the pre-surrender regime had defined “religion” and “not-religion” (Thomas 2019, 17-48). The constitution of 1890 had included a provision granting imperial subjects religious freedom “within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects,” but the decades leading up to the war in the Pacific had seen increasing crackdowns on various heterodox groups threatening the unity of the national polity (kokutai 国体). This included many political organizations, especially on the left, but also several religious denominations that through their beliefs and practices were deemed incompatible with Japanese nationhood. That being said, as long as legally recognized religious denominations agreed to partake in the purportedly non-religious rites of the state and as long as they accepted the sacred nature of the emperor and the reality of his divine lineage, they were at liberty to also carry out their own religious practices as expressions of individual belief (Larsson, forthcoming).

The American workgroup drafting the new constitution was tasked with establishing religious freedom as a fundamental right in the new democratic Japan, and in order to do so they also needed to ensure the complete separation of religion from the state. Article 20 of the 1947 constitution therefore contains not only provisions guaranteeing the religious freedom of individuals and prohibitions on religious organizations exercising political authority, but also a third paragraph declaring that “the State and its organs shall refrain from religious education or any other religious activity” (Gotō 2018, 23-24; Larsson 2020, 142-149). This was supplemented through Article 89, which posits that “no public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association.” Between them, Articles 20 and 89 are meant to ensure that the state neither supports nor hinders the work of religious actors, thus situating the state in a sphere of “religious neutrality” (Gotō 2018, 97-98; Hardacre 2017).

The strict separation of religion and state introduced through the postwar constitution was for all intents and purposes a response to the Shinto rites and myths embraced by the pre-surrender state. “State Shinto” was formally disestablished through a directive issued by SCAP in December of 1945, after which those elements that were deemed harmless by the occupation were allowed to reorganize within a framework of “Shrine Shinto,” as one of Japan’s “religions” (Mullins 2021, 61-82). This order was formalized under the Religious Organizations Ordinance of December 28, 1945, and the Religious Juridical Persons Law which replaced the ordinance when it came into effect on April 3, 1951. In response to the new legal framework, shrine priests from all over Japan came together in the winter of 1945 to form the Association of Shinto Shrines (NASS, Jinja Honchō 神社本庁). The formal registration of NASS as a religious juridical person essentially established a new social order, in which Shinto shrines were “transformed from ‘public’ into ‘private’ institutions” (Mullins 2021, 61).

The uneasy transformation of Shinto from what was essentially an aspect of modern Japanese nationhood to a religion amongst others has been at the center of debates on state-religion relations throughout the postwar period (Larsson 2017; 2020). As shrines shifted from being relevant to all people by virtue of nationality to only being the concern of specific “believers” (shinja 信者), disputes arose concerning which particular elements of Shinto were religious and which belonged to the sphere of “tradition” (dentō 伝統) and “culture” (bunka 文化). Beginning with the Tsu Groundbreaking Ceremony lawsuit filed in 1965 (Larsson 2017, 231-233), individuals representing various minority backgrounds have consistently challenged elected officials for transgressing the boundary between private religion and the public, leading to a recurring debate about whether Shinto is a religion like others, or if it is in fact something else (Larsson 2022b). While the plaintiffs arguing against state patronage of Shinto institutions in these lawsuits often represent religious congregations, including Shin Buddhists and various Christian denominations, they also include people from a wide range of non-denominational backgrounds, including communists, atheists, war-bereaved families, and Ryukyuans and other inhabitants of territories colonized by the Empire of Japan (Larsson 2020, 306).

Before the Naha Confucius Temple lawsuit was filed in 2014, this was the common dynamic in lawsuits on state-religion relations. An elected official, usually from the conservative Liberal Democratic Party (LDP), would use a symbolic amount of public money to fund what he considered to be a “traditional” rite or offering, after which a local representative of some minority group or minor political party would file a lawsuit claiming that it was “religious” and, consequently, constituted a violation of the principle of secularism. Even when no political actors were directly involved in the events behind the lawsuit, such as in the Sunagawa Secularism lawsuits resolved by the Supreme Court in 2010 (Larsson 2017, 240-243; Tsukada 2016), the cases still reflect a clear minority-majority dynamic, with one group challenging prevalent notions about supposedly “normal” behavior of “common people” (ippanjin 一般人). Secularism is commonly presented as a right guaranteeing the religious freedom of Japan’s minorities (Gotō 2018, 137-146), and as such, it has mostly come into play when minorities feel that their rights are being infringed upon. This dynamic was reversed when the Naha Confucius Temple lawsuit was filed in 2014.

Confucianism in Japan and the Ryukyu Archipelago

For a significant part of the country’s history, Japan has belonged to the Confucian cultural sphere (Kaji 2021, 48-52). Confucianism arrived in the Japanese Archipelago by way of the Korean Peninsula at some point between the third and seventh century C.E., and it soon became “closely intertwined with the beginnings of a Japanese state” (Paramore 2017, 16). While Confucian lineages have often found themselves in conflict with rival intellectual traditions, Confucian academies were commonly found throughout the country until the nineteenth century. As the nativist school of thought kokugaku 国学 (“national learning”) rose to prominence after the eighteenth century, the purely Confucian lineages gradually lost influence until, following the fall of the Shogunate and the rise of a new imperial state in the mid-nineteenth century, most of their institutions were dismantled and replaced by a new system of public education (O’Dwyer 2022a, 17-20). In a contemporaneous development, much of Confucian thought became integrated in the national moral and ideological framework of the new state, where the continued reliance on Confucian values can be observed in key documents such as the Imperial Rescript on Education (Kyōiku ni kan suru chokugo 教育に関する勅語, 1890) (Paramore 2017, 149-153; Shimazono 2017, 106-115). While moral education in the Empire of Japan was taught within a framework of theories on the national polity, the Confucian influence on this system is easily discerned (Yamamura 2022).

As a result of this history, the conservative and nationalist right in contemporary Japan has an ambivalent relationship to Confucianism (Paramore 2017, 167-182). On the one hand, many thinkers and ideologues in the conservative frontlines are quite open with their respect for the Confucian classics, often referencing these when presenting their ideas about society and morals. ¹ However, on the other hand, over the last three decades Confucianism has been caught up in the diplomatic tensions between Japan and the PRC, with several right-wing writers publishing books on the evils of Confucianism. While these writers do not usually deny the historical influence of Confucianism in Japan, their intense dislike of communism and the present-day PRC also translates into strong anti-Confucian sentiment (Kure 2021, 17-18; O’Dwyer 2022b, xxviii-xxix).

It was this equation of Confucianism with the interests of the PRC that motivated Kinjō Teruko 金城照子 to initially file her lawsuit against the Naha municipal government. Kinjō had moved to Okinawa from the Japanese mainland in 1947 for family reasons, and she first became involved in conservative political activism in response to the widespread strikes amongst Okinawan public-school teachers in 1967. She continued her activism in various local organizations over the following decades, primarily focusing on the rights of children vis-à-vis politically active teachers (Furukawa 2021; Kure 2021). Since filing the original lawsuit in 2014, Kinjō has been explicit about her views on Confucianism, which she consistently connects to Chinese encroachment in Okinawa. Furukawa Takuya 古川琢也 cites a statement she made about her motivations for filing the lawsuit, in which she described “feeling as if the hearts and minds of Okinawan people were invaded by Chinese religion” (Furukawa 2021, 104).

This connection between Confucianism and Chineseness is a recurring theme in statements about the case made by Kinjō as well as by her supporters from organizations representing Japan’s conservative and nationalist right. She was represented in court by Tokunaga Shin’ichi 徳永信, a well-known lawyer who often champions conservative causes. In an interview following the high court ruling in 2019, Tokunaga argued that “until now, [cases on] secularism have almost always been about problematizing Shinto shrines. It has a deep meaning that a high-level court has recognized the implications of how the activities of [Naha] city to honor the connection to China violate the constitution” (Sankei Shimbun 2019). Like Kinjō, Tokunaga has often emphasized the idea that Confucianism is something essentially foreign, suggesting in one interview that “the Confucius Temple is something that has been kept by the descendants of those who moved to the Ryukyu islands in the Ming era, it is not something that has been generally known in Okinawa.” Consequently, “it is unreasonable [to see it as] spreading the traditions of Okinawa” (Sankei Shimbun 2021). Given this dismissal of the historical role of the Confucius Temple by the plaintiff and her legal counsel, before moving on to the details of the lawsuit, it is important to situate the Naha Confucius Temple within the particular context of Confucianism in the Ryukyu Archipelago.

In 1429, after being divided into three kingdoms for most of the fourteenth century, the island of Okinawa was united under the rule of Chūzan 中山, the middle kingdom, with its seat of power in Shuri 首里, in the eastern parts of present-day Naha. The Chūzan kingdom had spent a large part of the preceding century building diplomatic ties with neighboring powers and establishing trade routes across Asia. As part of this drive, Chūzan became a formal tributary state to the Ming Dynasty in China in 1403 (Kerr [1958] 2000, 62-74). While this facilitated the Chūzan kingdom’s rise to prominence as a trade power in the Western Pacific region, it also meant that the Ryukyu Archipelago was gradually integrated into the Confucian cultural sphere. The single most important event in the early phase of this development took place in 1393, when King Satto 察度 of Chūzan invited a group of thirty-six families from Fujian to settle in the village of Kume, south-west of Shuri (Naha-shi shi 1979, 94; Steben 1998, 41). While the descendants of these families were gradually integrated into Okinawan society, they also came to play a central role in spreading Chinese culture along with Confucian systems of bureaucracy and governance.

It is important to emphasize that, contrary to the narrative presented by the lawyer Tokunaga as quoted above, Confucianism was not restricted to the Chinese immigrant community. Even prior to the unification of Okinawa, the Chūzan court would send sons from prominent families to receive their education in China, thus ensuring that by the time King Shō Hashi 尚巴志 became the first king of the Ryukyu Kingdom in 1429, many of his advisors had already received a classic Confucian education abroad. Over the following centuries, as the Ryukyu Kingdom became closely integrated into the Chinese cultural sphere, a Confucian education became a necessity for sons from prominent families who wanted to make a career at the court in Shuri (Steben 1998, 41-42). The position of Confucianism was further strengthened after a centralized system of academies was introduced in 1790 and through the introduction of village schools in 1834. While a true system of general education would not be introduced until after the Japanese annexation of Okinawa in 1879, Confucian ideals pertaining to gentlemanly concern for the well-being of the common people ensured that Confucianism gained influence even outside the halls of the elite (Kerr, 2000 [1958], 225-227; Steben 1998, 54).

The Confucius Temple at the center of the 2014 lawsuit is a vestige of the complex centuries-long history of diplomatic relations between the Ryukyu Kingdom and Imperial China. A temple venerating Confucius had been constructed in Kume village by the first generation of Chinese immigrants in the late fourteenth century (Kerr [1958] 2000, 110), but the present-day temple is based on a later building originally constructed between 1671 and 1676 on a plot of land in the eastern parts of Kume, close to the Kumoji River 久茂地川. The temple immediately became integrated into the system of Chinese-style education which had been in place in Kume since the sixteenth century, and which had previously been carried out at one of the village’s two Mazu 媽祖 temples (tenpigū 天妃宮). In 1717, the inhabitants of Kume petitioned the royal court in Shuri for permission to build a Confucian academy (gakudō 学堂), and after this was granted the following year, the Meirindō Hall 明倫堂 was constructed on land adjacent to the Confucius Temple as the new center of Chinese and Confucian education in the area (Naha-shi shi 1979, 96-97). The Meirindō Hall has since become known as “the first public school in the Ryukyus” (Naha Confucius Temple Case 2018, 8).

Following the 1868 Meiji Restoration, Japan annexed the Ryukyu archipelago and put an end to the royal dynasty in Shuri. Subsequently, after Okinawa was formally transformed into a Japanese prefecture in 1879, all former royal land along with most land owned or administered by religious institutions was transferred to the central government in Tokyo and turned into public land. In 1902, the government handed the land on which the Confucius Temple and the Meirindō Hall stood over to Naha City, which in 1915 donated it to a newly incorporated foundation, Kume Sōseikai 久米崇聖会 (Kume Association to Worship the Sages, KSK) (Sakiyama 2017, 208). KSK maintained the Confucius Temple as well as a number of other nearby temples dedicated to Chinese gods, including the two Mazu temples and the Tenson Temple 天尊廟, where the Primeval Lord of Heaven (Ch. yuanshi tianzun 元始天尊) was worshipped, and carried out rites to Confucius and the four disciples as well as to the ancestors of the thirty-six families. This continued up until the fall of 1944, when all temple buildings were destroyed in the American air raid on October 10^th which destroyed ninety percent of all buildings in Naha (Naha-shi shi 1979, 98).

After the Japanese surrender in August of 1945, Okinawa was occupied by the United States and ruled first through a military government and thereafter, from December 1950, through the United States Civil Administration in the Ryukyus. As the Ryukyu archipelago was considered a vital location for military build-up during the Cold War, U.S. occupation of Okinawa continued after the Japanese mainland regained independence in April of 1952 (Saeki 2012, 16-17). In the early days of the occupation, the road that had run in a north-south direction along the Kumoji River in front of the temple was widened and turned into Military Road No. 1, utilizing much of the former temple grounds. Once civil authorities took over the administration of Okinawa in 1950, this road became part of Route 58, a major highway stretching from Naha to the northern point of the main island (Sakiyama 2017, 207). As a result of this development, the land where the temple had originally stood was irretrievably lost.

The U.S. occupation of Okinawa continued for twenty-seven years, until the islands were returned to Japan on May 15, 1972. KSK reorganized itself during the period of U.S. occupation and was registered as a general incorporated foundation in 1962. This status was confirmed under Japanese law after Okinawa reversed to its status as a Japanese prefecture. Rather than focusing on Confucianism, the primary goals of the foundation centered upon commemorating the thirty-six families in Kume and celebrating 600 years of Chinese cultural influence in the Ryukyus. However, as expressed in the court proceedings, this celebration of Chinese culture also included the promotion of “Eastern culture centered upon the Analects of Confucius” (Naha Confucius Temple Case 2018, 9). Between 1974 and 1975, KSK rebuilt many of the temple buildings it had administered prior to their destruction in 1944 on a single plot of land in the Wakasa 若狭 district, just northwest of Kume. This included the Confucius Temple, the Tenson Temple, and a temple to Mazu; consequently, the area became quite crowded. The first sekiten rites dedicated to Confucius were carried out at the new location on January 25, 1975. ² In connection to this, a bronze statue of Confucius was inaugurated on a parcel of the original land where the Confucius Temple had stood, now next to Route 58 (Naha-shi shi 1979, 98).

In 1992, a new municipal park was opened in the northern parts of Kume district. Named Fukushūen 福州園 or “Fuzhou Park,” the park was constructed to celebrate the tenth anniversary of the sister-city relationship between Naha and Fuzhou in Fujian Province in the PRC, while also commemorating 700 years of diplomatic relations and trade between Okinawa and China (Fukushūen 2023). The park was built in the style of a traditional Chinese garden, with several pagodas, ponds, and a small mountain. In the late 1990s, the municipal government began to plan for an expansion of the park by utilizing an adjacent area of land northwest of the gardens, at the time owned by the national government and housing a number of public buildings and offices. In their development plan for the area, the municipal government highlighted the historical, cultural, and spiritual characteristics of “Kume as a place of interaction with China,” and stated their objective to let visitors “savor a sense and atmosphere of visiting a different world and a different time” (Naha Confucius Temple Case 2018, 13). In February of 2006, the municipal government purchased a 4560 square meter plot of land from the national government, supplemented later in the same year with a second plot of 2280 square meters (4).

At an early stage in the planning for the expansion of Fukushūen, KSK approached the municipal government with their idea to move the Confucius temple to this location. KSK emphasized from the start that their intention did not originate in a wish to spread Confucianism as a religion, in part based on their assumption that, in Okinawa as in Japan, Confucianism was first and foremost a “systematized teaching of moral and political norms” (Naha Confucius Temple Case 2018, 6). Instead, they presented themselves as an institution dedicated to disseminating the history and culture of the Kume area, both to local people and to visitors to Naha. Since Fukushūen already celebrated the history of Chinese immigration to the Kume area, KSK argued that the Confucius Temple would be a natural match, as an “educational institution” (kyōyō-shisetsu 教養施設) devoted to teaching about this particular aspect of Okinawan history and culture. Following some negotiations, the mayor of Naha city gave his permission for the move in March of 2011, motivated both by KSK’s status as a general incorporated foundation and by the argument that the temple and other buildings would be classified as “educational” rather than “religious” and that they would be open to the general public. At the same time, he also decided to waive rent for the 1335 square meter plot of municipal land that would be leased by KSK (14-15). This decision was supported by the Naha Municipal Park Regulations, which allow the municipal government to waive rent for “public organizations using [a park] with the public interest in mind” (cited in Larsson 2022a, 11). Construction on the new temple building began in March 2012 and was finished in April the following year (Naha Confucius Temple Case 2021, 4-5).

The Naha Confucius Temple case

The initial complaint filed by the plaintiff Kinjō Teru against the mayor of Naha City in the Naha District Court in April of 2014 was dismissed as groundless, but she appealed to the Fukuoka High Court which ruled in favor of her case being tried. The lawsuit therefore returned to the Naha District Court, where a ruling was handed down on April 13, 2018. Kinjō’s complaint concerned the period of April 1 to July 24, 2014, a period during which the municipal government had waived rent totaling a sum of approximately 1.82 million JPY (Naha Confucius Temple Case 2018, 4-5). The plaintiff’s argument was primarily based on Article 89 of the constitution, which prohibits the use of “public money or other property” for “the use, benefit or maintenance of any religious institution or association.” Kinjō argued that not only was the Confucius Temple a “religious institution” (shūkyō-shisetsu 宗教施設), but KSK, despite being formally registered as a general incorporated foundation, should also be understood as a “religious institution or association” under the constitution. While she makes a few references to Daoism in her complaint, Kinjō’s argument in the district court is primarily based on her assumption that Confucianism is a religion (5):

Confucianism is based on belief in the spirits and souls of ancestors and on the supernatural existence of Heaven as an Absolute or as a super-human essence, and clearly corresponds to religion. The Confucianism which was brought by the thirty-sex families from [Fujian] to the Ryukyu Kingdom was not the academic Confucianism accepted in the Edo Period, but a religious Confucianism deeply connected to worship of the ancestors of the thirty-six families and to belief and worship of the founder of Confucianism, Confucius. This does not disavow the fact that Confucianism has an academic and a moral side.

The plaintiff also argued that what had been carried out at the temple constituted “religious activity” (shūkyōteki katsudō 宗教的活動). This is another term used in the constitution, with the third paragraph of Article 20 prohibiting “the state and its organs” from partaking in any form of “religious activity.” Kinjō argued that the sekiten festival carried out on September 28^th every year, which includes rites welcoming Confucius’s spirit to the temple as well as offerings of food and drink accompanied by music, was “clearly equivalent to religious activity” based on a “Confucian view of life and death” (Naha Confucius Temple Case 2018, 6). Taken together, Kinjō painted a picture of KSK as a de facto religious organization representing only the interests of a small minority of people claiming to be descendants of the thirty-six families who immigrated to Kume in the fourteenth century. As a consequence, she concluded that the public support granted to KSK by waiving the lease for the temple area was not in the public interest, but solely for the benefit of members of one particular organization.

The primary defendant in the lawsuit was the mayor of Naha City, Onaga Takeshi 翁長雄志, ³ with KSK brought in as auxiliary intervenors, as they would be liable to pay the waived lease in case Onaga lost the lawsuit. The defense dismissed the idea that Confucianism was a religion, arguing that in Japan as well as in Okinawa, it should be viewed as “systematized scholarship of the moral and political models advocated by Confucius” (Naha Confucius Temple Case 2018, 6). When countering the plaintiff’s claims about the temple, the ceremonies and rites, and the nature of KSK as an organization, the defense continuously emphasized the academic and scholarly nature of Confucianism. They argued that “Eastern culture” (tōyō bunka 東洋文化) was an important part of Okinawa’s history and culture, and that even though not everyone shared the Chinese ancestry celebrated by KSK in Kume, it was still important to disseminate knowledge about this aspect of Rykyuan history to local people. In response to the argument that celebration of the sekiten festival constituted “religious activity” under the constitution, the defense argued that this should be understood as a way of promoting “the unique history, culture, and scholarship of Okinawa,” and that it was mainly carried out in order to “elevate the value of [the temple] as a tourist resource” (7). The defense also dismissed the claim that KSK was a “religious organization,” citing both the fact that it was registered as a general incorporated foundation and that its stated objective was to teach and research Eastern culture and history in Okinawa.

While there are fewer Confucian institutions in Japan today than there were during the Edo Period, it is worth noting that the temple in Naha and KSK are not unique in their organization and activities or in their collaboration with public actors. While this is only touched upon in the court proceedings, it became a topic of much discussion in Japanese media after the Supreme Court ruled in favor of the plaintiff. ⁴ One of the most well-known Confucian institutions in Japan today is Yushima Seidō 湯島聖堂 (“Yushima Sage Hall”) in central Tokyo. ⁵ Yushima Seidō traces its origins back to the late seventeenth century, but the original building was destroyed in 1923 during the great Kantō earthquake. Funding for rebuilding the hall was secured through the work of Shibunkai 斯文会, an organization seeking to combine “eastern morality with Western technology” originally incorporated in 1918, and with a membership primarily made up of scholars of Chinese literary studies (kangaku 漢学) and Confucianism. While Shibunkai today is a small and somewhat obscure organization, in the 1930s and 1940s they enjoyed significant political patronage while also supporting Japan’s “Holy War” (seisen 聖戦) in East Asia (O’Dwyer 2022a, 16-20). The new Yushima Seidō building was entrusted to Shibunkai upon its completion in 1935, and they have continued to manage the institution throughout the postwar era under the Act on Protection of Cultural Properties (Shibunkai 2009a). Like KSK in Naha, Shibunkai is registered as a general incorporated foundation. While they are devoted to disseminating the teachings of Confucius and carry out several Confucian rites during the year, including celebrating sekiten (referred to as Kōshi-matsuri 孔子祭り, “Confucius festival”) on the fourth Sunday in April every year, they also collaborate with the Agency for Cultural Affairs to maintain Yushima Seidō (Furukawa 2021, 105; Shibunkai 2009b). This is something that they can do as a general incorporated foundation, but which is far more complicated for religious corporations (see Kolata 2020).

The initial ruling on the Naha Confucius Temple case was handed down by the Naha District Court on April 13, 2018, with the court ruling in favor of the plaintiff. The case was appealed by both parties, first to the Fukuoka High Court, which confirmed the district court ruling on April 18, 2019, and then to the Supreme Court, which handed down a grand bench ruling on February 24, 2021, again deciding in favor of the plaintiff. It is important to note that while the plaintiff and the defendants presented arguments for and against considering Confucianism a religion, the judiciary did not give a conclusive opinion on this topic, opting instead to focus on the nature of the temple and the details of the sekiten festival in particular. As the judges of the district court put it, “regardless of any conclusions about the applicability of religion on Confucianism in general, it must be said that [the Confucius temple] has pronounced religious characteristics” (Naha Confucius Temple Case 2018, 16). Because KSK carried out a number of rites dedicated to “the spirit of Confucius” (Kōshi no rei 孔子の霊), and because they were concerned with “the dissemination of Confucianism” (jukyō no fukyū 儒教の普及), the district court also concluded that regardless of their legal status as a general incorporated foundation, it was proper to view them as a “religious institution or [organization]” under Article 89 of the constitution (17). ⁶ This conclusion was upheld in both subsequent rulings.

In a comment on the Supreme Court ruling published in the monthly magazine Sekai, Tsukada Hotaka 塚田穂高 suggested that through this ruling, “the Japanese secularism issue may have entered a new phase” (Tsukada 2021, 14). He based this observation on the ad hoc application of the legal concept of “religious organization” by the judiciary. The term “religious organization” is used twice in the constitution, first in paragraph 1 of Article 20, “no religious organization shall receive any privileges from the State, nor exercise any political authority,” and second in Article 89. What constitutes a “religious organization” is not specified in the constitution, but some clarification is offered in the Religious Juridical Persons Law. In Article 2, the law defines a religious organization as “an organization with the principal objective of spreading a religious teaching, conducting ceremonial events, and promoting the indoctrination of believers.” Article 4 further clarifies the relationship between the terms “religious organization” and “religious corporation” (shūkyō-hōjin 宗教法人), positing that “by this law, a religious organization can become a religious juridical person. ‘Religious corporation’ as stated in this law refers to a religious organization which has become a juridical person through this law” (e-Gov 2022).

As Tsukada argues, all prior rulings on the principle of secularism in Japanese courts have involved formally incorporated religious organizations. Several landmark rulings have focused on the involvement of public officials with religious corporations, most notably in the Tsu Groundbreaking Ceremony case, resolved by the Supreme Court in 1977, and the Ehime Tamagushiryō case, in which a ruling was handed down in 1997. When this has not been the case, religious organizations have still been involved in the activities, as in the Sorachibuto Shrine case, where a local Shinto parishioners’ group (ujiko-shūdan 氏子集団) was deemed to have benefitted from the fact that their shrine stood rent-free on public land (Larsson 2020, 362-369). As Tsukada notes, the Naha Confucius Temple case stands out because no organization legally registered as a religious corporation was involved in the activities considered by the courts. Instead, the judiciary relied on measures established in the 1977 Tsu Groundbreaking Ceremony ruling for evaluating whether certain acts should be understood as “religious activity” under the third paragraph of Article 20. This includes “looking [at them] through the eyes of common people” and relying on “common sense” (Tsukada 2021, 13; see also Larsson 2017). The judges and justices of the three levels of the Japanese judiciary used these criteria when evaluating the sekiten festival as well as the teachings of Confucius disseminated by KSK and concluded that they were in fact religious in nature. Based on this, they decided that under Paragraph 2 of the Religious Juridical Persons Law, KSK should be understood as a “religious organization,” regardless of the fact that it was not formally registered as a religious corporation.

Following this evaluation of KSK, the three levels of the Japanese judiciary found the manner in which the municipal government had allowed the organization to use public land rent-free to be in violation of the constitutional principle of secularism. While the courts acknowledged that the Confucius temple and KSK also served other functions, including as tourism spots and as an institution for educating people about Okinawan history and culture, their decision to designate KSK as a de facto “religious organization” meant that no public funding could be used to aid the activities of the organization, since under the constitution this would constitute support for a “specific religion” (tokutei no shūkyō 特定の宗教). This included waiving rent for land used for the temple buildings. Consequently, the actions of the Naha municipal government were found to have been in violation of Article 89 of the constitution.

Conclusion

The Supreme Court ruling in the Naha Confucius Temple case may have serious implications not only for a number of Confucian institutions around Japan, but also for Buddhist temples and Shinto shrines. The conclusion that an organization deemed to be religious by the court cannot be allowed to use public land without paying rent at market value could cause issues for larger institutions as well as for the many smaller wayside shrines and temples that can be found along streets or in parks throughout the country. The ruling also means that Confucian institutions currently registered as general incorporated foundations might need to reconsider this status. In particular, the ruling could have direct consequences for institutions such as Yushima Seidō and the Ashikaga School, both of which already collaborate with their respective local governments to maintain their buildings as cultural properties of Japan (Furukawa 2021, 105-106). While it is possible for religious organizations to receive support from the government for the upkeep of historical buildings or artifacts, this is a complicated and strictly controlled process that involves separating the “cultural” and “historical” aspects of items from the “religious.” The fact that these Confucian institutions are now likely to be considered de facto religious organizations means that any previous interactions with local or national government may come under scrutiny and be found to violate the constitution.

Besides these rather straightforward consequences for institutions operating in Japan, the ruling can also be read as an illustrative example of the kind of judicial religion-making which scholars such as Winnifred Fallers Sullivan (2005) and Erin K. Wilson (2022) have criticized. The outcome of the rulings depended exclusively on how the individual judges and justices of the court interpreted the category of religion. While they avoided ruling on the question of whether Confucianism in its entirety is a religion or not—a question as fraught with difficulties in the Japanese context (e.g., Kaji 2021; Paramore 2017) as it is in international academia (see Sun 2013)—they still decided to evaluate the rites and ceremonies carried out at the Confucius temple based on “the assessment of common people” and “in light of common sense” (Naha Confucius Temple Case 2021, 6). All three levels of the judiciary relied on these supposedly objective criteria when considering the details of the sekiten festival carried out in Kume, after which they concluded that the festival was religious in nature, and consequently, both KSK and the Confucius Temple were to be considered “religious organizations” under Japanese law.

These criteria for evaluating whether something is “religious” or not under Japanese law originate in the 1977 Supreme Court ruling on the Tsu Groundbreaking Ceremony case, where they constitute a part of the “object and effects standard” used to interpret Japanese secularism (Gotō 2018, 161-201; Larsson 2017). It is noteworthy that when the test was applied in the 1977 case, which involved a municipal government using public funds to pay for Shinto groundbreaking rites carried out by priests from a shrine registered as a religious corporation, the justices concluded that these rites did not constitute religion, but in the eyes of “common people” were nothing more than “social ritual” (shakai-teki girei 社会的儀礼). In their decision, the justices of the Supreme Court argued that certain aspects of Shinto transcend the domain of “specific religion” and should instead be interpreted as secular events reflecting the culture and tradition of Japan. It was only in 1997 that a new landmark ruling altered this precedent, when the justices ruling on the Ehime Tamagushiryō case concluded that the legal status of the actors involved should also be taken into consideration. If a rite is carried out by actors representing a legally registered religious corporation, it should be interpreted as “religious” (Larsson 2020, 252-261).

While the ruling on Naha Confucius Temple case utilized the 1977 object and effects standard, it mostly ignored the 1997 precedent in favor of allowing individual justices to decide what is and is not religion. At the same time, another complex dynamic was at play in the lawsuit, which garnered surprisingly little attention in the media debate following the ruling. The justices relied on what was assumed to be a common Japanese worldview to rule that the sekiten festival was religious, yet the temple is located in a territory that has been under direct Japanese control for less than 150 years. Thus, while the Supreme Court in 1977 found that Shinto rites carried out at the outset of construction work were not religious, four decades later justices of the same Supreme Court, using the same legal test, found that Confucian rites carried out in the Kume district of Naha were religious. Notwithstanding the fact that no religious corporation was involved in the latter case, the justices used their common sense to conclude that in Japan, rites such as these were beyond the pale of culture and tradition, essentially utilizing the principle of secularism as a tool to ensure that an organization dedicated to celebrating one aspect of the unique cultural heritage of the independent Ryukyu Kingdom was kept at arm’s length from the Japanese public. In doing so, they also contributed to the institutional process of “Japan-making” (Rots 2023), by privileging what was assumed to be the national majority’s understanding of normal behavior in order to strike down on an institution representing the distinct history of one of Japan’s last remaining colonial holdings.