Reexamining Separation: The Construction of Separation of Religion and State in Post-War Japan

Abstract

This article provides a comprehensive doctrinal analysis and critique of the Japanese Supreme Court's treatment of separation of religion and the state in post-war Japan. After placing the development of the doctrine in its proper historical and political context, the article argues that the Court's construction of the doctrine threatens to undermine religious liberty and equality in Japan. The article then considers the various socio-political forces underlying the Court's construction of the doctrine, including the role that the Court sees itself playing in the contest over separation of religion and state in Japan. The article concludes by arguing that, through the lens of the Japanese experience, one can draw normative lessons about the dangers of religious identity exclusion and the inappropriateness of relying upon one constitutional standard-be it the Japanese Court's purpose and effect test, the Lemon test, or the O'Connor endorsement test-in interpreting the constitutional principle of separation of religion and the state.