What Lies Behind the Holding
The Supreme Court judgment of February 27, 2007 (Heisei 19), commonly known as the “Piano Accompaniment Refusal Case,” is a staple of constitutional law study in Japan — a case every bar exam candidate has cited at least once in answering a question on Article 19 of the Constitution (freedom of thought and conscience). The majority opinion’s holding is stated with apparent clarity:
- The order did not directly deny the teacher’s own view of history or worldview regarding “Kimigayo”
- Playing piano accompaniment for the anthem cannot readily be characterized, from an external, objective standpoint, as an act expressing a particular ideology
- Public employees are bound by a duty to obey lawful orders from superiors, and the order’s purpose and content were not unreasonable
Learn these three steps, apply them as a formula, and move on to the next case — that is, in fact, the correct posture for exam preparation.
But read the judgment through in full — including Justice Nasu Kōhei’s concurring opinion and Justice Fujita Tokiyasu’s dissent — and it becomes clear that the logic the majority holds onto addresses only a fraction of the question this case actually posed. I want to argue that this was a judgment of partial reading (部分読み): one that substituted a question it could control for the question it was actually obligated to answer.
The Structure of the Majority Opinion: Balancing as an Instrument of the “Logic of Control”
The majority’s reasoning is, in substance, a balancing test. On one side sits the appellant’s freedom of thought and conscience; on the other, the duty of public employees as “servants of the whole community” to obey orders, and the interest in the uniform conduct of a school ceremony. The majority found the latter to prevail.
The problem lies in the resolution of that balancing. The majority never incorporates into its constitutional analysis what actually happened as a result of the refusal: at the entrance ceremony in question, a pre-recorded tape was used instead, and the ceremony proceeded “without essential problems.” The majority’s conclusion — that the order’s “purpose and content were not unreasonable” — speaks to the legitimacy of the goal (conducting the anthem singing) but passes over the core of a proportionality inquiry: why was the specific means of compelled piano accompaniment necessary to achieve that goal at all?
Justice Nasu’s concurrence comes closer to recognizing this weakness. He acknowledges that piano accompaniment “can only be performed, and rendered meaningful, by mobilizing the performer’s inner musical sensibility, emotion, knowledge, and skill,” and that compelling such a performance against one’s convictions can produce “psychological conflict and contradiction.” Yet Nasu ultimately falls back on the same organizational principle — “unified decision-making at the level of the school” — and states, without demonstrating it, that “tape accompaniment cannot be said to fully satisfy the need for accompaniment.” The reasoning stops at the conclusion; it never substantiates it.
What Justice Fujita’s Dissent Opened Up: Giving Substance to Proportionality-Style Reasoning
What makes Justice Fujita’s dissent significant is not merely that it reaches a different conclusion. It restructures the balancing itself.
Fujita decomposes the public interest at stake into three layers: the ultimate (general, abstract) goal of “realizing children’s interest in receiving an education”; the intermediate goal, set by the Course of Study guidelines, of “guidance in anthem-singing at the entrance ceremony”; and the concrete, operational goals of “order and discipline in the conduct of the ceremony” and “securing the principal’s authority to direct.” He insists that necessity must be examined separately at each of these layers. This is, in substance, proportionality-style reasoning that interrogates the relationship between means and ends at each stage — in the vocabulary of Japanese case law, “careful weighing” (慎重な考量), but functioning as a genuine inquiry into whether the means chosen were the minimum necessary to achieve the end.
Fujita’s sharpest strike is contained in a single sentence:
Because the taped accompaniment, prepared in advance for just such a contingency, was in fact used, the ceremony proceeded essentially without problems.
The alternative means was not a theoretical possibility. It was actually used, and it worked. So why did it have to be piano, played live, by this teacher, under compulsion? The majority never answers that question. Its statement that piano accompaniment is “something ordinarily expected and anticipated of a music specialist teacher” speaks to reasonable expectation — not to necessity. Conflating the two, and reaching a finding of constitutionality on that basis, is the substance of Fujita’s critique.
The Legitimacy — and the Limits — of Borrowing the Vocabulary of “LRA”
A conceptual clarification is worth making here. It is tempting to label Fujita’s mode of reasoning as an application of the “Less Restrictive Alternative” (LRA) test. Functionally, it does resemble LRA analysis.
To be precise, however: LRA developed within American constitutional theory, as a method of review applied to content-neutral regulations of speech under the First Amendment. In Japan, this concept has been received and systematized by academic commentary — most notably in the tradition running from Ashibe Nobuyoshi’s scholarship on standards of constitutional review — rather than having been developed by the Japanese courts themselves. Instances of the Supreme Court explicitly invoking “the LRA standard” are, in fact, scarce; and it has certainly never applied any such standard to the absolute internal freedom of thought and conscience. What Fujita’s dissent actually deploys is a refinement of comparative balancing — a layered, individualized inquiry into necessity, keyed to a nested structure of purposes — and this is much closer to the mode of reasoning Japanese case law has actually employed.
This distinction matters more than it might appear to. To say “the Court should have applied the LRA standard” risks implying that the Court failed to apply some established American doctrine that was simply sitting there, ready to use. But Japanese case law has never adopted LRA as such a standard in the first place. What actually happened was not a failure of standard-selection but a difference in the resolution of the balancing exercise itself. The majority coarsely set two terms against each other — the public employee’s duty of obedience versus freedom of thought and conscience — and stopped there. Fujita’s dissent made visible the multiple intermediate purposes hidden inside that duty, and asked, purpose by purpose, whether compulsion was truly necessary to serve each one. This is not a matter of choosing the right doctrinal label. It is a matter of how the question itself is framed.
The logic of control (制御の思想) completes itself by fitting a case into a pre-existing framework. The logic of response (応答の思想) stops, again and again, to confront the concrete tension a case actually presents — here, the plain fact that an alternative means had already been used, and had worked. The majority opinion is an instance of the former. Justice Fujita’s dissent is an instance of the latter.
The Political Context: The Obuchi-Era Legislative Process Behind the National Flag and Anthem Act
The order at issue in this case was issued on April 6, 1999 (Heisei 11) — squarely within the legislative process that would culminate, that August, in the enactment of the National Flag and Anthem Act (国旗国歌法). The government in power at the time was the Obuchi Keizō administration.
This context cannot be set aside. Throughout the Diet deliberations leading to the Act’s passage, the government repeatedly stated that the legislation would impose no compulsion — that it would not mandate anything of individuals or schools. The Chief Cabinet Secretary of the time likewise emphasized that legal recognition of the flag and anthem would not compel adherence in matters of individual conscience or in school practice. And yet, at the level of actual school administration, a mechanism of de facto compulsion — transmitted through principals’ formal directives — had already been accumulating since the 1989 revision of the Course of Study guidelines, which strengthened the language governing flag-raising and anthem-singing to “shall provide guidance” (指導するものとする). The factual finding in this case — that piano-accompanied anthem singing at School A had continued “since March of Heisei 7 [1995]” — is one cross-section of that institutionalization process.
In other words, this case arose in the midst of a double structure: at the level of national legislation, the official position insisted that the freedom of conscience would not be touched; at the level of educational administration on the ground, a mechanism of compulsion at odds with that official position was already in operation. The Supreme Court’s judgment does not confront this double structure directly. The majority’s reasoning — that the order “accords with the purport of the Course of Study guidelines” — in fact takes this ground-level institutionalization as an unexamined given, and in doing so, it can be read as failing to relativize, from within the judgment itself, the very qualification the Diet had insisted upon: that none of this amounted to compulsion.
It should be noted that the dispute over this issue became far more widespread and sharply contested only later, following the Tokyo Metropolitan Board of Education’s “October 23 Directive” (10.23通達) of 2003 (Heisei 15) — a political context belonging to the Ishihara metropolitan administration, and distinct from the one at issue here. To avoid conflating timelines, the accurate background specific to this case is the legislative process surrounding the National Flag and Anthem Act under the Obuchi administration, not the later and more contentious Tokyo dispute.
A Challenge to the Conventional Reading
This judgment has been treated as a leading precedent for the relationship between a public employee’s compliance with an official order and the freedom of thought and conscience, shaping the subsequent line of Supreme Court cases concerning refusals to stand and sing the anthem. Academic commentary has generally credited the majority’s framework — determining infringement of freedom of thought and conscience by reference to the external character of the act in question — with a certain value, on grounds of the clarity and predictability it offers as a decision rule.
But I want to suggest that this clarity was purchased at the cost of curtailing a proportionality-style inquiry — the correspondence between the necessity of the means and the end pursued. The perspective Justice Fujita’s dissent offered — individualized review across a nested structure of purposes — has been marginalized within the conventional reading of this precedent, while only the majority’s decision rule circulates as the “usable norm” in textbooks and exam-preparation materials.
This is, in a sense, a structural problem inherent to precedent study itself. Exam-oriented case study inevitably gravitates toward extracting and formalizing a rule. But in the course of that formalization, the essential tension a dissent or concurrence had identified — here, how to weigh the fact that an alternative means had actually functioned in practice — is all too often stripped away. This judgment offers a textbook instance of the danger of arriving at a feeling of having understood, without ever having read the whole.