Last week, the Japanese Supreme Court ruled that it is unconstitutional for a municipal government to offer city-owned land without charge for the site of a Shinto shrine. The ruling by the top court’s Grand Bench upheld the contention of the plaintiffs that the municipal government of Sunagawa, Hokkaido had violated the constitutional requirement of a separation of church and state when it granted city land to the shrine without charge. The court said that “It is inevitable that the general public would believe the local government supports a specific religion if it provides specific benefits to it.” This case follows squarely the 1997 Ehime Case in which the court ruled that it was unconstitutional for a prefectural government to fund offerings to Shinto Shrines.
The broader structural question, beyond the scope of this case, is whether the Japanese Supreme Court will assume a more activist stance in over-ruling government action now that the long-ruling Liberal Democrats have lost power. This would certainly be the prediction of political science studies of courts. Even though the specifics of this case do not fit the logic of our theories of “hegemonic preservation” or “political insurance” in which prospective losers seek to empower the court to constrain government later on, the court itself may feel freer to strike government action now that there is no longer a dominant party that can easily constrain the court. This is the second ruling of unconstitutionality in less than two years; the previous sixty one years of constitutional practice had yielded only seven such instances.
Thanks to Tokujin Matsudaira for the tip on the case!