reli 73h textbook chapter 3

Bones of Contention

Ambros, Barbara R.

Published by University of Hawai'i Press

Ambros, Barbara R.

Bones of Contention: Animals and Religion in Contemporary Japan.Honolulu: University of Hawai'i Press, 2012.

Project MUSE.Web. 21 Aug. 2015. http://muse.jhu.edu/.

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three

Pets, Death, and Taxes

the legal boundaries of religion

On June 17, 2007, I visited Jimyōin, a Tendai temple in Kasugai City in the hilly suburbs north of Nagoya, to attend the monthly memorial service for pets. After the service, the taxi driver who

took me back to the nearest train station criticized pet memorial services at temples such as Jimyōin: such rituals served as moneymaking schemes (kane mōke) for temples. He said, “People are used to having Buddhist cler-ics memorialize family members. Since the pet mama and pet papa want to do more for their ‘children,’ they are willing to pay anything, and temples take advantage of that.” The taxi driver is hardly alone in his assessment. Many Japanese, including Buddhist clerics and scholars of religion, have voiced similar criticisms. It is also the topic of much discussion in web-based chat rooms dealing with pet memorial rites. On a message board on Spinavi, a chat-room site dedicated to spiritual issues, the majority (most of whom had apparently never owned a pet) stated that spending money on pet memorial rites was wasteful, unnatural, too commercialized to be personal, inconsiderate of the animal, for the self-satisfaction of the owner alone, and simply over the top.1

Criticism of this sort is not limited to the rumblings from the general public: in the past few years, such critiques have taken the shape of legal proceedings. Between 2004 to 2008, there were two prominent legal dis-putes that illustrate the social and cultural rifts surrounding pet mortuary rites. Cases involving the above-mentioned Jimyōin (Kasugai City, Aichi Prefecture) as well as Ekōin in Tokyo’s Sumida Ward challenged the tax privileges of Buddhist temples conducting pet mortuary rites. The two cases advanced all the way to Japan’s Supreme Court, but they came to

Pets, Death, and Taxes | 91

radically different, paradoxical conclusions: the Jimyōin case resulted in the assessment of corporate income tax on a Buddhist temple conduct-ing pet funerals, whereas the Ekōin case upheld the temple’s privilege of being exempt from property taxes on buildings and land used for pet mor-tuary rites. I begin this chapter with a brief overview of the taxation of religious corporations and then discuss the two legal cases in detail. The cases illustrate the discontent felt by many Japanese about the perceived tax privileges of religious institutions. They also help us grasp how pet memo-rial rites are perceived as fundamentally different from memorial rites for inanimate objects and nonpet animals: although the latter are emblems of Japaneseness and tradition, the former are widely seen as inauthentic, un-Japanese, antisocial, egocentric, and unproductive. They are emblems of consumerism and individualism gone awry. As liminal, hybrid beings that are treated simultaneously as commodifiable objects and beloved fam-ily members, pets have become the focal point of contestation that have allowed critics to transgress against the sacrosanct economic privileges of religious institutions.

Religious Corporations and Tax Exemptions

The idea that religious institutions should receive tax privileges is not a new one. Even in the premodern era, temples and shrines were able to amass landholdings without paying taxes to worldly authorities — an arrange-ment that was frequently criticized from a Confucian perspective. With the development of Japan as a modern nation-state this situation was for-malized in legal terms. Religious organizations could become religious cor-porations, and with incorporation religious organizations initially received blanket tax privileges. The first attempts to pass legislation codifying the incorporation and tax-exempt status of religious organizations failed in 1899, 1927, and 1929. The incorporation of religious organizations began in 1940 with the implementation of the Religious Organizations Law (Shūkyō Dantaihō), which gave religious organizations such as Buddhist schools, Shinto sects, and Christian churches the right to incorporate but also subjected them to strict state regulation. Article 22 gave registered re-ligious corporations summary exemption from income, property, regional, and municipal taxes. In 1945, the Occupation authorities revoked the law and replaced it with the Religious Corporations Ordinance (Shūkyō Hōjin Rei), which maintained the right of religious organizations to incorporate

92 | bones of contention

but removed much of the strict supervision by the state. Article 16 again gave registered religious corporations general exemption from income, property, regional, and municipal taxes.2

The subsequent Religious Corporations Law (Shūkyō Hōjin Hō; en-acted in 1951) and the Corporate Tax Law (Hōjin Zeihō; enacted in 1965) made the tax exemption of religious corporations more complex. The postwar legislation classified religious corporations (shūkyō hōjin) as non-profit corporations (kōeki hōjin), which enjoy certain tax-related privileges. Nonprofit corporations are tax-exempt from income and property taxes regarding activities related to their original mission. In the case of religious corporations, tax exemptions apply to religious activities and to buildings and property used for worship and other religious activities.3 According to article 6 of the Religious Corporations Law, religious corporations may engage in both nonprofit and for-profit activities in order to support their religious aims.4 However, according to article 5 of the Enforcement Ordi-nance of the Corporate Tax Law (Hōjin Zeihō Shikōrei; 1965) for-profit business activities conducted by nonprofit corporations can be taxed if they fall under thirty-four types of activities, including retail, warehousing, and contracting.5 Even in these cases, religious corporations are nonetheless taxed at a lower rate than for-profit corporations. In addition, religious cor-porations can donate up to 30 percent of their for-profit income to support their religious activities, which reduces their corporate tax rate to about half of that of for-profit corporations.6 In the case of religious corporations, this means, for example, that religious objects such as amulets, talismans, and divination lots are tax-exempt because they are available only at reli-gious institutions and are technically exchanged for donations, but other objects such as incense, candles, and flowers are taxable because they can be procured also at private-sector retail stores.7 Similarly, religious wedding ceremonies are exempt from corporate taxes, but the exemption applies only to the wedding ceremony itself. Other wedding-related activities such as garment rental, catering, and reception-space rental are taxable.8

During the initial postwar era, the finances of religious corporations received little scrutiny by the state. However, beginning in the 1980s, the National Tax Agency became more vigilant in its investigations of religious corporations. In 1987, audits by the National Tax Agency revealed that of 1,154 religious corporations, 56 percent had failed to report their income correctly and had to pay a combined sum of eight hundred million yen. A


similar investigation in 1995 revealed that 84 percent of the religious orga-nizations audited by the agency had insufficiently reported their income, and about 12 percent had even tried to conceal their income. Together with claims of predatory and aggressive proselytization and fund-raising meth-ods, such investigations led to growing public suspicion toward religious organizations.9 As Stephen Covell points out such lack of adequate report-ing may not have been intentional scheming of religious specialists but in many cases caused by a lack of training in accounting and management of assets as well as blurred boundaries between income of religious institu-tions and personal income of religious specialists.10

Criticism of religious institutions deepened after the Aum Shinrikyō incident in 1995. Opinion polls revealed that whereas 59 percent of the Japanese public had considered religious institutions trustworthy in 1991, only 24 percent did so by 1998; the same year, 66 percent thought they were suspect.11 As a result of its violent and illegal acts, Aum was thought to have forfeited its status as a religious corporation serving the public good. Therefore, the courts stripped the group of its status as a religious corpora-tion and with it its tax privileges, which ultimately drove the group into bankruptcy.12 Furthermore, the Aum incident invigorated the debate to revise the Religious Corporations Law. Since public suspicion of religious organizations had been heightened by the Aum incident, lawmakers were able to argue for increasing the state’s oversight of religious corporations. These revisions were supposed to prevent dangerous activities, political meddling, and the abuse of tax privileges by religious organizations. The public was very supportive of implementing changes. Opinion polls con-ducted by major news organizations indicated that 85 to 90 percent of the population supported a change in existing legislation, though 30 to 35 per-cent insisted that the revisions needed careful examination. A revision of the Religious Corporations Law was implemented in 1996. The amend-ment increased the centralization of the registration process and demanded greater transparency regarding the activities of the religious organizations. Most important, an amendment to article 25 required religious corpora-tions to submit detailed records of their assets, income, and expenditures as well as documentation of any nonprofit business or profitable business in which the organization engages.13 The revision has had important con-sequences for pet funerals and memorials conducted by Buddhist temples — activities that exist on the fringes of religious practice.


Jimyoin and Corporate Income Tax

Jimyōin, a Tendai temple led by Abbot Watanabe Enmyō, operates one of over fifty pet cemeteries in Aichi Prefecture. The local competition includes the pet cemeteries of two other sizable Buddhist temples in the larger Nagoya area, Sanzen’in (Jōdo) and Chōrakuji (Sōtō Zen). Founded in 1326 as a retirement temple by the Tendai cleric Jimyō Shōnin (d. 1361), who was active in the area spreading Tendai esotericism and Rinzai Zen, the temple claims a long, illustrious history but only became registered as a religious corporation belonging to the Tendai school in 1969. After the main hall and the residence of the cleric were destroyed during a fire in 1977, the temple, which has few parishioners, struggled to gather the neces-sary funding for the reconstruction project and began conducting pet me-morial rites, just around the time when such rites started to become more common in Japan. In 1983, the abbot heard about the deplorable conditions of the disposal of animal remains (which were then commonly disposed of with household waste) from an acquaintance who was the director of the Animal Protection and Control Center of Aichi Prefecture. Reverend Watanabe subsequently obtained a permit for the establishment of a cre-matorium on temple grounds; the temple management claims its crema-torium to be the first in Japan to be established by a temple.14 Initially, the temple had only two to three rituals per month and gained its clientele by word of mouth rather than through extensive advertisement. By 1989, the temple was handling about 130 cats and dogs per month, which had grown to around 165 by 2005.15 Nowadays, the temple’s primary function is the performance of pet memorial rites.

The collective memorial services performed in the morning and the afternoon of the seventeenth day of each month are well attended. Dur-ing the morning service on June 17, 2007, the small memorial hall quickly filled to capacity with temple patrons, and people spilled out into the hall-way. Patrons registered for the memorial service and for placement of a memorial tablet at the reception. Most were middle-aged or elderly, includ-ing equally both men and women — possibly because the service fell on a Sunday. The service opened with a visiting cleric from Korea chanting the Heart Sutra in rhythmic and melodious Korean. The audience did not register this as unusual. Afterward a Japanese cleric chanted several dhāran. ī, selections from the Lotus Sutra, including the Kannongyō, fol-


lowed by the names of the pets and their families. Many in the audience did not follow the service attentively but dozed off in the stuffy heat while a couple of electric fans whirled hot air across the room. The service con-cluded without a sermon. The presiding cleric made only a few general announcements regarding ongoing Tendai school activities and reminding the audience of the daily memorial services for pets held at 12:30 p.m. After the announcements, the audience lined up for individual incense offerings at one of six censers in front of the altar. At this point the crowd became more animated, some even openly emotional, shedding tears for their lost pets as they sprinkled two to three pinches of powdered incense into the censer and folded their hands in a brief, silent prayer. Most left the main hall to visit the various grave sites; others sipped tea and ate sweets pro-vided by the temple staff. There was little interaction among the attendees beyond the members of their own families. While they had all attended a collective service, there was little sense of collectivity as each family fo-cused on its own family pet.

Jimyōin’s precinct (figure 7) is clearly designed to focus on the perfor-mance of pet memorial rites, though it also offers memorial rituals for dolls (ningyō kuyō), divination (mikuji), prayers for good health for humans and pets, and human funerals on a small scale. In the reception area leading to the main hall, a glass case holds various memorial accoutrements (e.g., urns, decorative urn covers) and amulets for living pets (for good health, prevention of getting lost). A detailed temple pamphlet available at the re-ception area describes the various services offered for pet memorialization: the shelves in the small main hall hold pet memorial tablets. Daily and monthly memorial services are performed in the main hall. On the far side of the precinct, a spacious, modern crematorium also houses a room with a funeral altar. In an adjacent building, a small waiting area provides comfort for patrons who attend cremations. The columbarium (nōkotsudō) on the second floor above the main hall is filled with shelf spaces for pet cremains (figure 8). An outdoor cemetery provides rows of individual grave plots (figure 9) for pets and a scenic view of the valley. An ossuary that serves as a collective grave (figure 10) allows owners to memorialize their pets indi-vidually through inscribed tōba or small metal plaques on the walls leading up to the memorial stone, which reads, “Our beloved animal sleeps here” (Ai dōbutsu koko ni nemuru). A second collective ossuary allows pet own-ers to enshrine their pet’s cremains in individual urns rather than having


them mingle with those of other pets in exchange for a small additional fee. Thus the entire precinct is carefully linked to the performance of pet memorial rituals.

Even its main image of worship, a statue of Yakushi Nyorai dating from the Muromachi period (1336–1573), is constructed as an integral part of pet memorial rites. The pamphlet stresses that the image was personally revered by Tokugawa Tsunayoshi (the “dog shogun”), who was greatly in-terested in the welfare of animals and therefore promulgated various laws concerned with compassion for animals.16 The image was not original to the temple but was received from Nikkō after Jimyōin’s head temple was destroyed during World War II. The image became Jimyōin’s main image of worship when the temple was established in the postwar period. Around 2008, the temple also added two nehanzu, paintings of the Buddha’s death-bed scene, which prominently feature a variety of animals. One is displayed on a side altar next to the main altar and is flanked by votive candles in-scribed by individual pet owners. The other painting hangs in the rear of the main hall, surrounded by pet photographs intended for memorializa-tion or prayers for health through services called shashin kuyō, in which the picture of the pet stands in for the animal’s cremains, and shashin kigan, in which the picture stands in for a sick pet.

The pamphlet and the temple website carefully lay out the process for a funeral. Once the pet dies, the owner has the option of bringing the animal to the temple or contacting the temple for pickup service. After the owner registers at the reception, a cleric conducts the funeral in the funeral hall next to the crematorium. Afterward, the animal is cremated either in a collective cremation (gōdō kasō), an individual cremation (kobetsu kasō), or an attended individual cremation (tachiai kasō), during which the owner attends the induction into the crematorium and participates in the transfer of the cremains into the urn after cremation. In the case of unattended cremations, the temple staff performs this function without the owner’s presence. After the cremation, the owner can choose between taking the cremains home or interring them in the collective ossuary, on a colum-barium shelf, or in an individual plot at the temple.

These services come at a price and are meticulously detailed in the tem-ple pamphlet and the temple website. Pickup service costs ¥3,000 (or about $30). Depending on the size of the animal, collective cremations range from ¥8,000 to ¥40,000, individual cremations from ¥12,000 to ¥40,000,

Fig. 7. Map of temple precinct of Jimyōin, Kasugai City.

Fig. 8. Pet colum-barium at Jimyōin, Kasugai City.

Fig. 9. Pet owners tending to individual pet graves at Jimyōin, Kasugai City.

Fig. 10. Pet owners visiting the collective pet ossuary at Jimyōin, Kasugai City. Offertory flowers fill buckets beside the ossuary and tōba line the rack behind the ossuary.


and attended cremations from ¥20,000 to ¥50,000. These figures include fees (ranging from 25 to 75 percent) that the temple pays a funeral com-pany that conducts the cremation on the temple grounds. Interment in the collective ossuary is free of charge, but individual cremations (attended or unattended) incur a ¥5,000 charge for attended interment ceremonies. Taking the cremains home is free of charge, but having them delivered by the temple costs ¥8,000. Columbarium shelf spaces range from ¥10,000 for the first forty-nine days to upward of ¥30,000 for three years, depending on the size of the shelf space. Individual plots also vary depending on their size, ranging from ¥200,000 to ¥1 million plus a three-year maintenance fee of ¥6,000; however, this price includes an attended cremation. Thus a pet funeral with interment could cost as little as ¥8,000 in the case of a very small pet interred in the collective ossuary or as much as ¥110,000 in the case of a large animal cremated in an attended ceremony and interred in the columbarium — or even over ¥1 million if the owner chooses a large individual grave plot.17

Other assorted fees include ¥1,000 for tōba, ¥1,000 for temporary me-morial tablets used during the first forty-nine days, ¥5,000 for regular me-morial tablets, and another ¥5,000 to have them enshrined in the main hall for one year, as well as various fees for nameplates, urns, decorative urn covers, tombstones, and the inscription of tombstones. If the owners want their pet memorialized until the thirteenth anniversary, the basic fee is ¥30,000 for the reading of the name and ¥100,000 to have a special me-morial tablet made. There are also set fees for individual memorial services conducted during the first forty-nine days. Other fees are ¥500 for various pet amulets, as well as more recent additions (beginning in 2008) such as votive candles for ¥1,000 and votive ema tablets for ¥500.

These prices, rather than net profits from the services, lead critics of pet memorial rites to conclude that temples make a lot of money from pet me-morial rituals. However, one should not assume that all temples engaged in pet memorial rituals earn excessive amounts of money from them. As a matter of fact, temples derive vastly different levels of income from these practices based on their geographic locations (urban, suburban, or rural) and on what types of services they choose to offer (cremations, graves, individual columbaria shelves, or collective ossuaries). The fewer the ser-vices offered the lower the income; however, the more services offered the higher the investment and maintenance costs. According to one estimate,


a temple that establishes a pet cemetery needs to invest anywhere between ¥2.6 and ¥90 million raised through base capital and loans. Furthermore, overhead and advertisement costs as well as salaries of employees further re-duce profits.18 In comparison, the setup costs for memorial rites for mizuko, for nonpet animals, and for inanimate objects, though still substantial, are generally lower because they do not involve as many of these services and facilities.19 Such constraints mean that despite the public image that the income from pet memorial and funeral services is extravagant, temples op-erating pet cemeteries also face considerable costs.

A business model for temple pet cemeteries estimates that under ideal conditions the average annual pretax income of a temple-operated pet cem-etery over a period of fifteen years could range from about ¥10 million to ¥30 million.20 This would indeed be a sizable sum compared to the income of the average Japanese family, but conditions are hardly ever perfect. A suburban temple such as Jimyōin, which offered all services and had been in existence for fourteen years by 1997, earned an average pretax income of ¥5,864,657 between 1997 and 2001 — about half the projected income for this type of temple and about the average household income in Japan.21 It is also important to remember that this income is not the personal income of the abbot, who receives a salary from the temple on which he has to pay income tax. These funds also support the operation of the temple, includ-ing annual fees paid to the sect headquarters, temple supplies (including ritual implements, robes, and incense), utilities, insurance costs, and tem-ple vehicle maintenance costs.22 Therefore, the public resentment against the extravagance of Buddhist temples exaggerates the actual conditions at many smaller and medium-sized institutions.

Regardless, the public perception that pet memorial temples are ex-ploitative is common. It was this sentiment that spurred on a legal dispute over the assessment of corporate income taxes on Jimyōin’s earnings from pet mortuary rites. According to Jimyōin’s claims, the temple inquired on April 22, 1990, as to whether it needed to file an income tax return on earnings from pet memorial rites but was told by a Nagoya tax official that it was not necessary. Nearly four years later, on March 14, 1994, the same tax official notified Jimyōin that filing an income tax return was necessary after all. No record remained of the initial response of the Tax Agency; therefore, Jimyōin’s protestations that it had initially been told otherwise were not recognized by the Tax Agency or later by the Tax Tribunal that


examined the case.23 In May 2002, the Nagoya Tax Agency assessed ret-roactive corporate income taxes and fines covering a period of five years from 1996 to 2001. Jimyōin appealed the assessment of taxes in July 2002. The Tax Agency responded in October 2002 by canceling the penalty and part of the assessment for fiscal year 2000/2001 but continued to demand full payment for the rest. According to Abbot Watanabe, the temple was singled out by the Tax Agency because it did not distinguish between tem-ple operations and pet cemetery operations as many other temples do that subcontract the pet cemetery facilities to nonreligious businesses.

Jimyōin filed another appeal at the Tax Tribunal in Nagoya in Novem-ber 2002. In October 2003, the Tax Tribunal cancelled assessment of tax penalties for failure to declare taxes for fiscal year 1999/2000 but dismissed any further requests for investigation by claiming that “article 5 of the Enforcement Ordinance of the Corporate Tax Law for unrelated, profit- making businesses applied to pet kuyō performed by the plaintiff.” As ex-plained above, according to this law, nonprofit organizations including re-ligious organizations that engage in any of thirty-four types of businesses, which are considered by nature unrelated activities, are obligated to file corporate income tax on earnings from these activities.24 The tribunal ac-cepted the argument of the Tax Agency that Jimyōin’s pet memorial rites fell under three of the unrelated business activities stipulated by the law: contracting, operating a storage facility, and retail. However, the tribunal gave no concrete explanation for this conclusion.

In 2004, Jimyōin filed a legal suit against the Tax Agency with the Na-goya District Court. Jimyōin countered the assessment of taxes with a doc-trinal argument by pointing to contemporary quasi-familial human-pet relationships and by highlighting the temple’s historical and iconographic connection with animal welfare. The temple claimed that according to Mahayana Buddhism, all living beings had Buddha-nature and all were subject to the cycle of death and rebirth in the six realms of existence. Even though animals such as pets had been reborn in the beastly realm because of their karmic conditions, they could accrue merit and be reborn in the heavenly or the human paths of existence. Therefore, animals could also be the objects of memorial rites. In fact, the same applied to all things in the universe, including dolls and needles, which were often the object of memorial rites in Japan. Second, Jimyōin claimed that people commonly did not perceive a difference between human memorial rites and pet me-


morial rites. The temple stressed that pets were no longer kept just for play (aigan dōbutsu) but as companion animals (hanryo dōbutsu) and that they were treated as family members. Therefore, their loss was mourned just like that of a family member. Pet owners commissioned a Buddhist cleric to recite scriptures and conduct memorial rites to express their love and grief and to help them overcome their sorrow just as they would in the case of losing a human loved one. Jimyōin also noted that the role of a Bud-dhist cleric hired by a funeral home to recite scriptures for the deceased was very similar to that of a Buddhist cleric hired by a pet cemetery to recite scriptures on behalf of dead pets. Both activities were tax-exempt. Third, Jimyōin claimed that its main image of worship was historically linked to the protection of animals via its connection with Tokugawa Tsunayoshi, that chanting the Buddhist scriptures had a pure religious meaning, and that it accepted animal cremains free of charge. Therefore, its pet memorial service could not be considered an unrelated, for-profit business activity.25

The Nagoya District Court ruled against Jimyōin in March 2006, and the Supreme Court also rejected the appeal in September 2008. While the court recognized Jimyōin’s claim that some aspects of the memorial rites were religious in content, the court upheld the Tax Agency’s claim that animal memorial rites were significantly different from human memorial rites and from memorial rites for inanimate objects (such as dolls and nee-dles), both of which are tax-exempt. The argument hinged on the fact that Jimyōin provided services such as cremation that are usually handled by secular private-sector businesses, such as crematoria and funeral homes, in the case of human funerals. Jimyōin’s pet funerals and memorial business therefore supposedly resembled a secular business. The court wanted to ensure fair competition with pet cemeteries not run by temples by treating them equitably in regard to tax burdens. It rejected Jimyōin’s claim that pet cemeteries were in fact imitating memorial rites that had historically been integral to the Buddhist tradition and its institutions. It also rejected Jimyōin’s claim that despite the existence of private-sector businesses, activ-ities that historically had a religious aspect and were conducted by religious institutions, such as weddings, were still tax-exempt.26

The court based its assessment on a comparison with various private-sector pet cemeteries in different regions of Japan that offered similar ser-vices as Jimyōin and advertised their services in similar ways. These pri-vate-sector pet cemeteries were either directly linked to Buddhist temples


or had developed ties with a Buddhist cleric who would conduct memorial services on the premises and yet they functioned as private-sector compa-nies that were not tax-exempt. The court thus insisted that these businesses should be treated equally regarding taxation. It also rejected Jimyōin’s claim that pet memorial rites should be treated similarly to memorial rites for dolls and needles, both of which remain tax-exempt, religious activi-ties. The court accepted the Tax Agency’s argument that these rites were different because no private-sector businesses existed that offered the same services.27

The court agreed with the Tax Agency that Jimyōin’s pet cemetery en-gaged in activities that fell under the classification of unrelated business activities of a nonprofit corporation. According to the court, Jimyōin’s pet cemetery business engaged in contracting, operating a storage facility, and retailing. In contrast to human memorial services, where there is usually no openly stated fee scale, Jimyōin provided its pet mortuary services (pickup service, cremation, interment, and memorial services in the first forty-nine days) according to an explicit fee scale published on its website and in the temple pamphlet. Therefore, the court accepted the Tax Agency’s reasoning that these services qualified as a form of contracting. It rejected Jimyōin’s argument that in the case of humans, such services were associ-ated with a fee scale that was common knowledge but not openly stated, whereas in the case of pet mortuary rites there was usually a clearly detailed chart. Such a chart made it easier for patrons to assess what sum would be appropriate since the cremation service resulted in expenses for fuel that fluctuated according to the size of the animal. Jimyōin had also claimed that should someone truly have no money to pay, the temple would per-form the service free of charge.28

Moreover, the court agreed with the Tax Agency’s claim that Jimyōin’s pet interment facilities qualified as a storage facility, which usually applies to facilities for bicycle and baggage storage. The court was not swayed by Jimyōin’s counterargument that common storage facilities provide tempo-rary storage, whereas pet cremains remained at the temple indefinitely and were objects of memorialization.29 The court argued that Jimyōin contin-ued to maintain the individual storage of cremains as long as patrons paid their renewal fee every three years. If a patron failed to pay, the cremains were moved to the collective ossuary because failure to pay was considered a breach of contract. This indicated that the temple assigned a monetary


value to the storage of pet cremains, which was merely couched in the lan-guage of maintenance fees. Furthermore, the court pointed out that any legislation that determined the maintenance of graves by religious institu-tions as tax-exempt applied only to human graves. Since animal remains were legally classified as waste, their grave sites did not fall under the same legislation.30 The court also held Jimyōin responsible for the income de-rived from the sale of items such as tombstones, memorial tablets, name-plates, tōba, urns, and decorative urn covers. It rejected Jimyōin’s argument that tombstones, memorial tablets, and tōba were religious artifacts that were different from ordinary pieces of stone or wood because they had been sanctified by the temple. The court pointed out that Jimyōin assigned a fixed price to these items, indicating that they had a clear monetary value.31 Contracting, operating a storage facility, and retail operated by religious corporations are considered taxable, unrelated business activities. Thus the court ruled in favor of the Tax Agency that Jimyōin had to pay corporate income tax on the revenue derived from pet funeral and memorial rites. The court pointed out that as a nonprofit organization the temple already received preferential treatment compared with private-sector businesses be-cause it enjoyed several tax advantages. By implication, the Jimyōin ruling designated the performance of pet memorial rites as a nonreligious activity regardless of whether the participants — temples and their patrons — view such practices as religious. The Jimyōin case has set a significant legal prec-edent that fundamentally challenges the religious status of activities car-ried out by religious corporations.

Ekoin and the Property Tax Case

Shortly before the Supreme Court made its final ruling in the Jimyōin case in September 2008, another tax-related case concerning a pet cemetery at Ekōin, a Jōdo temple in Tokyo’s Sumida Ward, made its way through the Japanese legal system. In contrast, the courts came to a completely different conclusion in terms of whether the temple should be taxed and what the “social consensus” on pet memorial rituals was. This led to a paradoxical situation in which Ekōin was deemed exempt from property taxes on its pet memorial facilities despite the fact that it pays corporate income taxes on its pet memorial rites.

Ekōin was founded in the aftermath of the Meireki fire in 1657 that


destroyed large parts of Edo. The temple served to memorialize the spirits of the innumerable casualties who had no family members to tend their graves (muen botoke). During the Edo period, it also became a frequent host of wrestling matches and public displays (kaichō) of sacred Buddhist images from temples throughout the country. The temple was incorpo-rated as a religious organization in 1953. Nowadays the temple performs a variety of services from human memorial services to rites for mizuko, but its most prominent feature is its pet cemetery.

Nestled between the human cemetery and the main hall, the Ekōdō, a spacious three-story building erected in 1962, is crammed with simple lockers that are very sparsely decorated (figure 11). The adjacent modern memorial pagoda, built in 1982 and housing a replica of the original Batō Kannon statue that once stood in the original Batō Kannondō, holds an-other six hundred lockers on two floors (figure 12). Together they provide ample room for interment. The area surrounding the two buildings is dot-ted with various memorial stones for animals, many of which have been put up by businesses dealing with animals: a monument for fur seals from 1926,32 memorials for cats and dogs from 1935 and 1957 donated by samisen makers (who have traditionally used dog and cat skins to cover the cham-ber of the instrument), a memorial stone for birds donated by the Tokyo Pet Bird and Wildlife Trade Association (1964), and a recent monument to “beloved dogs” donated by the Tokyo Association of Purebred Pet Dog Shops (1987). Two large censers, one for cats and one for dogs, are usually covered with flowers. Two racks brimming with tōba for animals — dogs, cats, hamsters, birds, and ferrets — line the steps leading up to the pagoda.

Ekōin claims a long history of performing memorial rituals for animals dating back to its inception. According to Abbot Honda Shōkei, these rites began at the founding of the temple when animal bones were interred with human ones after the Meireki fire. The horse of Shogun Tokugawa Ietsuna (1641–1680) was memorialized at the Batō Kannondō. Ekōin’s role as a memorial place for animals also appears in the popular literature of the late eighteenth century. For example, Ichiwa ichigen, a work by the humorist Ōta Nanpo (1749–1823), records that six hundred cats that died in down-town Edo in an epidemic were buried at Ekōin. An illustration of the 1784 kaichō held at Ekōin shows an inscription that reads, “May all beasts and birds attain the mind of enlightenment.” Later in the Edo period, memori-

Fig. 11. Map of temple precinct of Ekōin, Tokyo.

Fig. 12. First floor of Batō Kannon Hall at Ekōin, Tokyo. The main image is an unusually serene depiction of Batō Kannon. The columbarium walls are lined with lockers labeled with the families’ and pets’ names. A sign warns pet owners not to leave food offerings in the lockers.


als for cats (1816) and for dogs (1866) were erected within the precinct. The temple’s death registers even include eleven posthumous names for animals from 1836 to 1852.33

Because of its long history of conducting animal memorial rites and a widely known reputation, Ekōin can afford to market itself very differently than Jimyōin. Abbot Honda bemoans the increasing commercialization of pet mortuary rites. He contrasts his temple’s long tradition of animal memorial rites with the activities of other pet cemeteries. He believes that the recent pet boom is merely another form of consumerism that many pet cemeteries are exploiting. Pet cremations, he insists, are completely distinct from pet funerals and memorial rites. The former should be performed by pet cremation businesses, whereas the latter should be the domain of Buddhist clerics. He insisted that according to the Buddhist scriptures, Buddhist monks should not get involved with cremations but should only perform funerals and memorial rites. The two aspects should remain dis-tinct, but recently, he notes, those two aspects have become conflated in the public consciousness.

In resistance to this commercialization, Ekōin provides no pamphlet about pet memorial rituals for its patrons. Its website gives only rudimen-tary information focusing on the historic monuments rather than pricing information. Cremations are not handled in-house but by a private-sector pet cemetery, Kachiku Hakuai’in (Funato, Itabashi Ward), one of the old-est pet cemeteries in Tokyo (opened in 1935). Ekōin offers only a small, refrigerated pet morgue, which was recently refurbished in elegant black marble, to hold the pet bodies for daily pickup by pet cemetery staff. Thus the temple receives no fees for cremation services, although it is to be as-sumed that the temple collects fees for Kachiku Hakuai’in.34 Ekōin does provide cremation services at its Ichikawa branch, Genkōji Ekōin Betsuin, but while Honda handles memorial rites, on-site cremations are handled by a company that has been subcontracted to perform this duty. As a mat-ter of fact, Honda claimed that he had not really set foot in the cremato-rium until he showed me around the site in May 2010.

Ekōin also provides no distinct fee scale for interment. A sign at the reception states that the fee for pet memorial rites is kimochi dake (up to each person’s feeling). Enshrinement in the Ekōdō is free for the first year and so is interment in the collective ossuary. However, those who wish to continue to enshrine their pets individually are charged a fee for memo-


rialization. Yearly fees for memorialization are staggered in three grades: ¥20,000, ¥35,000, and ¥50,000.35

Each day the temple holds a memorial service at four p.m. The service takes place regardless of whether there are any patrons to attend it. On Sat-urday, July 7, 2007, the service begins with nine people in attendance and two others coming in later during the service — some single, some families, some old, some young, both men and women. The service is dedicated to both the humans and pets. Two racks for tōba, humans on the right and pets on the left, flank the altar in the main hall. The tōba for pets outnum-ber the ones for humans eight to one. Aside from the tōba, there is little iconographic evidence that the temple conducts so many pet memorials. The only hint is a nehanzu, a painting of the Buddha’s deathbed scene, which features a large number of animals in the lower half of the image. The painting is paired with a raigōzu, a depiction of Amida’s descent to welcome a person recently deceased, on the opposite side of the room.

During the simple service, Honda is assisted by another cleric. He re-cites scriptures and the “Moonlight” poem,36 by the sectarian founder Hōnen about the saving grace of Amida, followed by the names of those humans and pets to whom the service is dedicated. The names are chanted in groups, humans first, then animals. Everyone is invited to offer incense during the chanting and all but one young woman participate in the offer-ing. After the ceremony, a woman receives the human tōba and three other patrons receive three pet tōba, presumably to take them to the grave site and the pet tōba racks outside the pagoda, respectively. The service includes no sermon, but Honda explains later in private that pet memorial rites are not intended for spirit propitiation. They are really meant for the living. They are a means to bring people to the temple and give them a chance to face the reality of death. Because of life-prolonging health care and the dis-appearance of the extended family, many people rarely experience firsthand the death of older family members. However, the death of a pet is still a highly emotional event that people have to confront.

Despite Ekōin’s long history with animal memorial rites and its less openly commercialized presentation, the Tokyo Tax Agency targeted the temple as a result of a property survey on August 5, 2003. The agency con-cluded that the Ekōdō and the memorial pagoda were storage facilities for animal cremains. Abbot Honda believes that the Tax Agency was moti-vated by the Jimyōin case to assess property taxes and urban-planning taxes


in accordance with the Local Tax Code on June 1 of the following year. The agency claimed that these structures and their sites were not tax-exempt like the rest of the precinct because they did not serve exclusively the original objectives of the religious organization as defined by article 3 of the Reli-gious Corporations Law. Ekōin requested a reexamination of the levy by the governor’s office on July 21, 2004, but the governor’s office dismissed the request on November 30, 2004. As a result, Ekōin filed suit on Febru-ary 15, 2005.37

Ekōin made a strong case that animal memorial rites were integral to its original mission. It definitely helped that Abbot Honda was very familiar with the taxation system because he had worked as a licensed tax accoun-tant before he became a cleric. The temple stressed its long history of ani-mal memorialization beginning from its foundation in the early Edo pe-riod long before its incorporation as a religious organization and presented historical documents to bolster its case. Therefore, it argued that the pa-goda and the Ekōdō as well as the memorial rites performed there were in-tegral to its inherent religious mission. In contrast, the Tokyo Tax Agency clearly took its lead from the Jimyōin case in Nagoya. The agency argued that social convention did not recognize the activity of storing animal cre-mains as an originally and objectively religious activity. There were many similarities between Ekōin’s memorial rites and private-sector businesses operating pet cemeteries. Because Ekōin itself filed a tax return regarding its income from pet memorial services as an unrelated business according to the Corporate Tax Law — a direct result of the Jimyōin case — Ekōdō and the memorial pagoda should not be exempt from property and urban-planning taxes.

The first trial at the Tokyo District Court resulted in a ruling on March 24, 2006, in favor of the Tax Agency. The court argued that although Ekōin had a long history of animal memorial rites and though the me-morial rites at the Ekōdō and the memorial pagoda were linked to the inherent religious objectives of Ekōin, the buildings were not dedicated exclusively to religious objectives since the activities resembled those of private-sector pet cemeteries and because the storage of animal cremains and the performance of animal memorial rites were, according to conven-tional wisdom, fundamentally different from human graves and human mortuary rites. Therefore, these buildings and their rites did not qualify for exemption from property and urban-planning taxes.


Unsatisfied with the ruling, Ekōin filed an appeal with the Tokyo High Court in 2006, which ended in a reversal of the original ruling, on Janu-ary 23, 2008. The Supreme Court upheld the decision on July 17, 2008.38 The High Court recognized Ekōin’s long history in animal memorial rites and enshrinement. The court concluded that this was indicative of the fact that animal memorial rites were embedded in the belief system of the local populace. Therefore, the Ekōdō and the memorial pagoda indeed served exclusively the religious objectives of Ekōin, which, according to the Religious Corporations Law, included the spreading of its teachings, the performance of rituals, and the education of its followers. The court also recognized essential differences between Ekōin’s pet memorial rites and a private-sector business because Ekōin conducts Jōdo-style memorial rites for the animals and both the Ekōdō and the memorial pagoda house stat-ues of Batō Kannon. The court also noted the absence of advertising and professional promotion of the temple’s services. As a result the court can-celed the Tax Agency’s assessment of property and urban-planning taxes.

Implied Reference Points: Rites for Humans, Other Animals, and Inanimate Objects

The cases presented several direct and tacitly implied reference points, which remained largely inarticulated: mortuary rites for humans, other animals, and inanimate objects and private-sector pet cemeteries. All de-serve a more detailed explanation. In the Jimyōin case, human funerals served as a frequent reference point — for the courts and commentators alike. The court and the Tax Agency in particular treated human funer-als as if they were a constant, tradition-based practice. However, human funerals and memorial rites have undergone significant changes and com-modification in late twentieth century Japan — a fact not addressed by the Jimyōin ruling. As the bonds between Buddhist temples and their parish-ioners have eroded and secular funeral professionals have taken charge of funeral arrangements, Buddhist clerics are taking the role of professionals for hire. Funeral companies often give their clients detailed directions on how much to pay Buddhist clerics for sutra chanting and for posthumous dharma names. The public and the media, even representatives of the vari-ous Buddhist sects, have recognized the problems that have arisen with this commodification.39 In an opinion poll conducted in 1998, 81 percent of the


respondents said that funerals were too costly and 61 percent were in favor of smaller funerals that involved only family and close friends.40

As a matter of fact, pet funerals are usually attended only by the imme-diate family and close friends. Although they are widely portrayed as sym-bols of material excess, they are much less costly and involved than human funerals. Furthermore, the selling of posthumous names, perhaps the most contentious issue in the context of contemporary Japanese Buddhist mor-tuary rites, does not play a role in the case of pet funerals. Pets are usually not given a posthumous name — though, as we saw in chapter 1, in the late Edo period whales as well as cats and dogs sometimes received posthumous names (often containing the term chikumon tenshō). As several Buddhist clerics explained to me during my fieldwork, it is generally assumed that pets do not need posthumous names and that they would only be confused by them because of their limited intellectual capabilities. It is also likely that contemporary pet owners would not appreciate posthumous names containing the term chikushō as did posthumous names for animals during the Edo Period because of the term’s negative associations. Furthermore, in the current climate in which the need for human posthumous names is being widely debated and such posthumous names have lost some of their symbolic value as status symbols, it would not make much sense for Buddhist clerics to insist on the need for posthumous names for pets. It is unlikely that temple patrons for whom the pet memorial rites serve as a means to celebrate the intimate and emotional bonds with their beloved pet would want to substitute the familiar, emotionally laden name with a formal, ceremonial name. Ritually speaking, pet funerals thus eliminate a crucial aspect of human funerals, namely the posthumous ordination of the deceased.41

Memorial rituals for other animals and for inanimate objects served as further reference point for the courts. While the court in the Jimyōin case considered pet memorial rituals as fundamentally different from these others, anthropologists, historians, and religious studies scholars have often pointed to the similarities between pet memorial rites and memorial rites for other animals and inanimate objects. For example, Hoshino and Takeda argue that pet memorial rites are similar to doll memorial rites.42 Similarly, legal scholars have often stressed the similarities with memorial rituals for dolls and needles. Why would the Nagoya court and the Tax


Agency on the one hand and legal and religious scholars on the other reach opposite conclusions? The answer seems to be that though memorial rites for inanimate objects and nonpet animals share a great deal with pet me-morial rituals, special features make the pet memorial rites appear signifi-cantly different in actual practice.

One of the Nagoya court’s underlying assumptions was that according to public consensus, animals do not constitute valid objects of religious rituals. Legal scholars have criticized this position. For example, in his commentary on the case, Sakurai Kunio asked whether the object of the ritual (i.e., pets) should play a role in the determination of whether some-thing was a religious ritual or whether the determining factor lay with the actors (i.e., the religious institutions and the patrons).43 In any case, the court’s assumption that pets are not valid objects of religious rituals points to the strong influence of modern legal definitions of animals: live animals are covered by animal-protection legislation, but once they die their bod-ies become waste. By Japanese law, pets are generic household waste and livestock are industrial waste. Therefore, human bodies and nonhuman animal bodies are fundamentally different. The disposal of human bod-ies is regulated, whereas the disposal of animal bodies is subject to far less stringent regulation. The court’s ruling unveils a clash between a scientific and legal understanding of animals and a religiously inspired view, which grants animals spiritual value, personhood, and kinship with humans that extends beyond this life.44 It remains to be seen how arguments based on the assumption that pet bodies are waste will hold up in the future. A recent case of a pet crematorium in Saitama Prefecture, in which a crema-torium owner had discarded pet bodies in the nearby woods instead of cre-mating them in order to make a greater profit, has led to calls for a revision of animal-welfare legislation in order to regulate pet funeral businesses. According to an official in the Ministry of the Environment, treating dead pets as waste “does not match the national sentiment.”45

To make its case, the Nagoya court avoided using other animal memo-rial rites as a clear reference point. The court carefully avoided the more generic term “animal memorial rites” (dōbutsu kuyō) but instead consis-tently used “memorial rites for pets” (petto kuyō) to maintain such rituals as a distinct category. In contrast, the Ekōin case summary referred to the rites held at Ekōin consistently as “animal memorial rites” and stressed the continuity with animal memorial rites held at Ekōin during the Edo pe-


riod.46 In the Jimyōin case, the court virtually ignored Jimyōin’s claim that pet memorial rites were a subtype of animal memorial rites and that they were inspired by the Mahayana teachings.47 The case file merely states the Tax Agency’s argument that “in Japan, there is a long history of holding memorial services for animals, particularly livestock, but memorial rites for pets have become common only since the mid-1970s.”48 As we saw in the previous chapter, other animal memorial rituals are also largely a modern phenomenon, and animal memorial rituals at zoos and research labora-tories proliferated beginning in the 1970s as a result of demographic and legal changes such as the declining birthrate and the passing of animal welfare legislation. In fact, it is inconsistent to treat one as traditional and the other as a modern invention because both are so closely linked to the commodification of animals.

Is it possible then to distinguish pet memorial rites from other animal memorial rites? According to Abbot Honda there is no conceptual differ-ence, but scholars Hoshino and Takeda suggested early on that pet memo-rial rituals were different from other animal memorial rites. They argued that in contrast to other nonhuman animals, pets are humanized in con-temporary Japanese society. They do not merely fulfill utilitarian purposes that benefit human society but have become surrogate family members as well. Thus, the authors argue, pet memorial rituals are more similar to me-morial rites for mizuko — another liminal member of the family — than to rites for other nonhuman animals. Therefore, pet memorial rites consti-tute a second stream distinct from other animal memorial rites.49

In contrast to other domestic animals, pets are usually kept for plea-sure rather than utilitarian purposes. Pet tombstones tend to express the owner’s gratitude for happy memories rather than service or sacrifice, a common trope in other animal memorials. Unless pets have performed an unusual act of heroism — like Loyal Hachikō — their interactions with humans are limited to the family and immediate acquaintances. Therefore, pet memorial rites are meaningful mostly only to the immediate family that kept the pet. Rites for companion animals are highly personalized. Emotional attachment of the owner to the deceased pet matters, and pets are usually named individually during the memorial rites. Even collective pet memorial festivals celebrated at pet cemeteries on a monthly basis or on special holidays such as obon and the equinoxes do not have the purpose of constructing a collective memory of pets in general — except in the cases


of pet shops and veterinary clinics, which obviously have an important in-terest in pets and occasionally sponsor such collective rites. There is little bonding among unrelated pet owners: individual pet owners and their families attend the rites to memorialize their family pet — or even their nonhuman family member. Once the direct memory of the individual pet has faded, pet owners no longer attend. Their individual, rather than com-munal, focus makes these rites targets of criticisms of wastefulness and greed, a charge rarely levied against other animal memorial rites, which are usually collective.

Furthermore, whereas nonpet animal memorial rituals are often at-tended predominantly by men because they occur in corporate contexts, the assumed target clientele of pet memorial rites is women. Pet-keeping, as well as veterinary care, have become feminized in the postwar period. Unlike the largely masculine and militaristic image of dogs during the war-time era, dogs and other pets became closely associated with the domes-tic sphere inhabited by women and children. Small dog breeds, spurned during the war as nonutilitarian, have come to constitute the majority of dogs registered in Japan. Pet-keeping among women has been particularly linked to excessive consumerism, which treats pets as fashion accessories.50 Pets have also been an important consumer good in the so-called silver markets, that is, markets directed at elderly consumers. Pets have been shown to have beneficial effects on the quality of life for the elderly by al-leviating loneliness as well as encouraging physical activity and social con-tacts.51 Since Japanese women generally outlive their male counterparts, women also dominate this market. These tendencies are reflected in the de-mographic represented at pet memorial services. While men are not com-pletely absent, families with children and middle-aged to elderly women are more highly represented at monthly and annual pet memorial rituals. Interestingly, the presiding judge in Ekōin’s Tokyo High Court case was a woman, Ichimiya Naomi, but it is difficult to assess to what extent this made her more sympathetic than the all-male judges in Jimyōin’s case.

However, these differences — public versus private, collective versus in-dividual, utilitarian versus nonutilitarian, male versus female — can hardly serve as legal reasons why one kind of ritual should be considered a reli-gious activity while the other should not. The crucial difference — in the eyes of the Nagoya courts and Tax Agency — is that pet memorial rites involve animal remains whereas other animal memorial rites generally do


not. Indeed, unlike pet memorial rituals, other animal memorial rituals can take either Buddhist or Shinto forms because many do not involve actual dead bodies. By contrast, pet remains have become central to pet me-morial rites, although this was not always the case. As Asquith reports, in the early 1980s Toneyamabō, a Buddhist temple in Toyonaka City, Osaka Prefecture, performed memorial rites for pets, which was then still very rare for Buddhist temples. The temple accepted a piece of hair for pet buri-als and memorial rites rather than the body of the pet, which was “burned elsewhere in the interest of hygiene and space.”52 Dead pets in urban areas were most commonly disposed of by sanitation departments until the 1990s. Many municipalities have only relatively recently begun (because of public pressure) to provide special incinerators for pets rather than burning the bodies with regular household waste. Many pet cemeteries were estab-lished as a direct response to the lack of dedicated municipal incinerators.53 The court’s criticism that “religious” pet memorial rites should not involve pet remains and should not have a clearly stated price scale seems to imply that religion should not involve material bodies or material wealth — and should instead be limited to the spiritual realm.

Just like animal memorial rites, memorial rites for inanimate objects, as Angelika Kretschmer and Fabio Rambelli have shown, have their roots in the early modern period. Both are linked to increasing commodifica-tion in the emerging protocapitalist society of early modern Japan. The links with commodification are particularly apparent in contemporary memorial rites for inanimate objects, which are often sponsored by pro-fessional organizations involved in the manufacturing, retailing, or use of these objects. Such festival-like memorial rituals usually occur around holi-days dedicated to these objects instead of being performed on a personal need basis. Memorial rites for needles, for example, are often sponsored by professionals — representatives of the garment and tailoring industries as well as people who practice needlework as a hobby. They usually involve the chanting of scripture and sticking the needles into a piece of tofu or devil’s-tongue jelly (konnyaku). After the ritual, the needles are often bur-ied on temple grounds, but as with memorial rites for dolls, they are usually not followed by further rituals for the same needles. Individual donations for rituals for needles, dolls, and other inanimate objects are small, ranging from a few hundred to a few thousand yen.54

Similar to the rites for needles, memorial rites for dolls, though also


attended by doll owners, are often sponsored by doll manufacturers and retailers. Although the dolls may have been buried intact during early manifestations of the rite, nowadays the rituals usually involve the burn-ing of old and broken dolls. The burning — at least officially limited to nonplastic dolls — is likened to the rite of cremation for humans.55 While this aspect could point to a similarity with pet memorial rites involving cremation (particularly joint cremation), there is also an essential differ-ence. The incineration of dolls occurs in an open-air bonfire and is a highly public, ceremonial spectacle attracting many spectators. The burning of the dolls functions as a festival rather than as a solemn, private occasion. Rambelli argues that especially at temples belonging to the esoteric Bud-dhist sects — such as Kan’eiji, which belongs to the Tendai sect — the burning of dolls is also related to goma rituals rather than to funerals.56 In contrast, pet cremations are actual funerals that involve the use of high-tech incinerators. Such cremations are either closed to the public (in the case of collective cremations) or attended only by family members. Even in the case of attended cremations, family members usually wait in a nearby waiting area rather than observe the cremation itself. The cremation of pets is thus much more similar to human cremations. Furthermore, once the dolls have been incinerated, no further memorial rites are held. In con-trast, temples offer follow-up memorial rites for pets, just as they would for human family members.

From a legal perspective, memorial rituals for pets and inanimate ob-jects share an important common element: all involve the disposal or stor-age of waste for a fee. Discarded dolls, broken needles, and dead pets are all legally considered waste. An important difference between doll and needle memorial rites and pet memorial rites is that the former lack a private-sector industry, but it is also clear that pet memorial rites provide a much more lucrative and steady source of income than annual memorial rites for dolls or needles. Ultimately, the unspoken but implied difference between pet memorial rituals and rituals for needles, dolls, and other inanimate objects is that the latter have a strong public aspect that makes them appear more beneficial to the larger public. They bring the community together. They sacralize production and consumption. In contrast, pet memorial rites — though they may also include seasonal collective rites around the equinoxes and obon that are sometimes cosponsored by pet shops and vet-erinary clinics — are much more focused on the family and the individual.


Pet memorial rites are predominantly nonutilitarian and focus on the indi-vidual rather than on collective ideals, but they also involve a much greater and longer-lasting financial exchange between the patrons and religious in-stitutions than rites for inanimate objects or other animals. Hence they are more easily labeled as wasteful. Income garnered by religious institutions through pet memorial rituals is thus more likely to be viewed as sponging off society rather than as contributing to modern ideals of efficient produc-tion. This allows the Tax Agency to claim a slice of this “illicit” wealth back for the greater good of society.

Another problem that the courts did not sufficiently acknowledge is that it is extremely difficult to draw a clear line between secular and reli-gious pet cemeteries because of the complex gradations present in contem-porary Japan. Examining the Jimyōin case, Miki Yoshikazu wondered how the courts could claim that temples imitated private-sector pet cemeteries when clearly such pet cemeteries imitate Buddhist temples by marketing themselves as quasi-religious institutions. Comparable pet funeral busi-nesses (mentioned in the court proceedings for comparison) tend to use Buddhist references — such as the term dōbutsutachi no bodaiji (ancestral temple for animals), Buddhist icons, or the image of a Buddhist cleric — to advertise their services precisely because the religious character of such rites is valued by the public.57 On one end of the spectrum are Buddhist temples like Jimyōin that specialize in running a pet cemetery and handle all as-pects at the temple, including the cremations. At the other end there are secular pet cemeteries, but even those usually have ties to a Buddhist cleric who will perform rituals on major Buddhist holidays associated with the dead (such as the equinoxes and obon) or on monthly memorial days. In be-tween there are various types of arrangements in which Buddhist temples, such as Ekōin, have relationships with secular pet funeral services to handle cremations off-site. Other Buddhist temples, such as Jindaiji (Tokyo) and Saihōji (Kanazawa, Ishikawa Prefecture), might even rent space in their precincts to private-sector pet cemeteries, which then use their presence on the temple grounds as a means to promote themselves as quasi-religious institutions in the eyes of their customers. It is therefore futile to attempt to determine with precision whether secular pet cemeteries are imitating Buddhist temples or Buddhist temples are imitating pet cemeteries. The process operates in both directions. While the Nagoya court decided to ignore the blurry boundary between secular and temple-run pet cemeteries


and sought to establish a standard applicable to all institutions, the Tokyo court took a more cautious stance, emphasizing that such decisions should be made on a case-by-case basis. After losing its legal dispute, in recogni-tion of the state’s preference for a clear separation between pet funeral op-erations and pet memorial services, Jimyōin ultimately decided to set up a company for the operation of the pet cemetery and the crematorium that is institutionally independent of the temple even though it operates on the temple grounds.

Problematic Legal Standards and Their Implications

The Jimyōin and Ekōin rulings resulted in an odd juxtaposition. Although both Jimyōin and Ekōin are religious organizations whose central function is the performance of pet memorial rites, the rulings declared one taxable and the other tax-exempt.58 This led to a seemingly paradoxical situation: following Jimyōin’s precedent, Ekōin does pay corporate income tax on its pet memorial rites because they resemble similar services offered by a private-sector industry, even though they are integral to its history and are therefore exempt from property taxes. This discrepancy was caused in part by the fact that the rulings relied on the particular circumstances of an individual temple in the Ekōin case rather than on an assumed univer-sal standard. Different circumstances at another temple, such as Jimyōin, which had no historical documents to prove its long-standing involvement in animal memorial rites, could have led to a different ruling.59

Furthermore, the courts used different standards when measuring in each case whether or not pet memorial rites were a religious activity. In the Jimyōin case, the court claimed that pet memorial rites were unrelated business activities because they fell under article 5 of the Enforcement Or-dinance of the Corporate Tax Law. A strong determining factor was the presence of a private-sector industry. In the Ekōin case, the court had to decide whether or not pet memorial rites were an original activity of the religious corporation as stipulated by the Local Tax Code.60 These two standards are entirely different, which suggests that there is no universal legal standard to define religious activities.

The Jimyōin case has set a legal precedent that fundamentally challenges the religious status of activities by religious corporations. By implication, the Jimyōin ruling on corporate income taxes in effect designated the per-formance of pet memorial rites as an unrelated, thus nonreligious, activity,


regardless of whether the participants — temples and their patrons — view such practices as religious. Legal scholars were quick to criticize the court’s ruling. They rejected the application of article 5 and took issue with the court’s argument that pet memorial rites were somehow not religious ac-tivities and were different from memorial rites for humans and inanimate objects. Legal scholars urged the court to reconsider why religious organi-zations were tax-exempt in the first place, to pay attention to how temples spent the income garnered from pet funerals, and not to give in to public prejudice against religious corporations. In contrast, the Ekōin ruling has received much less criticism from legal scholars, who noted only that the ruling was perhaps not universally applicable to other temples because it recognized Ekōin’s peculiar history and questioned whether the courts should play a role in determining whether a ritual was religious or not. A related issue was that by pointing to Ekōin’s long history the court was by implication validating established religious practices over new ones and commonly accepted religious practices over practices of a minority.61

The largely critical assessment by legal scholars of the Jimyōin ruling indicates that there was unease about the Nagoya court’s decision to tax a religious institution. Despite the Supreme Court’s ruling on the case, the issue has remained contested. The strong criticism of the verdict voiced by legal scholars undermines an important argument in the Jimyōin case: that there is a social consensus regarding the nonreligious nature of the ritual. Indeed, one of the critiques voiced by Tanaka Osamu is that the court based its ruling on so-called social convention — a notion somewhat com-parable to that of “community standard” in the U.S. legal system — but failed to adequately define “social convention.”62 It is notoriously difficult to determine exactly what this social consensus is — if it exists at all. The courts’ diverging conclusions in the Jimyōin and Ekōin cases illustrate this point. For the Ekōin case, the community standard on which this assess-ment was based appeared to be regionally limited to Ekōin’s immediate constituents — local residents (chiiki jūmin) — whereas in the Jimyōin case, the judges claimed social and cultural consensus on a national level — the people of Japan (kokumin).63 The ruling in Ekōin’s case contradicts the stipulation that there is a unified national consensus on this issue.

Furthermore, one might also wonder on what basis the courts deter-mined what this supposed consensus is. Is it a consensus among the presid-ing judges? Is it the opinion most clearly represented in the mass media?


Or did the judges base their decision on historical evidence, which might not adequately reflect the current social consensus or allow for religious change? And even if there were such a consensus, should the courts privi-lege religious activities accepted by a majority over those practiced by a minority? The rising popularity of pet memorial rites and funerals points to an important shift in public attitudes toward pets. Should the courts grant privileges to established religious practices over newly emerging ones?

In Japan’s religiously pluralistic society, these rulings have treaded on sensitive ground. Several legal scholars have voiced their unease that the courts are passing judgment on what constitutes a religious activity ac-cording to an “objective” standard. As Sakurai points out, definitions of what constitutes religion or a religious activity depend on the view of the beholder.64 Sakai and Itō note that what constitutes a religious activity is difficult to define, and they wonder if it should be up to the courts to set the boundaries, expressing concern that such action might impinge on personal religious freedom.65 The Japanese public has also been critical of the idea that the courts should decide what constitutes a religious activ-ity.66 Freedom of religion and the separation of religion and the state are sensitive issues given Japan’s modern history through World War II. Until then, the Japanese state exerted much control over the religious activities of individuals and religious organizations. Article 28 of the 1889 Consti-tution guaranteed religious freedom to Japanese only “within limits not prejudicial to peace and order, and not antagonistic to their duties as sub-jects.”67 Religious activities deemed subversive were often suppressed in the name of public order, and Japanese subjects were expected to participate in civil religious rites at Shinto shrines regardless of their personal religious convictions. Meant to disestablish Shinto as a state religion and to prevent violations of personal religious freedom in the name of public order, the current Japanese Constitution, enacted in 1947, demands a strict separa-tion of religion and the state and grants unconditional freedom of religion. The 1951 Religious Corporations Law specifically prohibits state officials from interfering with doctrine and rituals of religious organizations.68

The term “religion” in itself has been contested throughout Japan’s modern history. With the introduction of the term shūkyō to mean “re-ligion” in Japan’s modern era, the term has been strategically applied to include or exclude religious practices or institutions, either to gain special privileges or to discriminate against heterodox practices. In the Meiji era,


the term shūkyō was defined in contradistinction to that meaning “super-stition” (meishin) in order to declare heterodox any practices deemed ir-reconcilable with modernity.69 In the 1920s and 1930s, some new religious movements were branded as quasi-religious heterodoxies (ruiji shūkyō) so that they could be suppressed.70 In contrast, Shrine Shinto was labeled nonreligious so that participation in Shinto rites could be called a civic duty of all Japanese, regardless of their religious affiliations.71 Postwar leg-islation sought to broaden the definition of religion and clarify the separa-tion of religion and the state, but this debate is far from over. Sponsorship of Shinto rites by municipal officials, enshrinement of Self-Defense Force members at Yasukuni and at prefectural Gokoku Shrines, and the visits of national leaders at Yasukuni Shrine have repeatedly led to court cases that have tested the separation of religion and the state.72 Moreover, in response to theories of secularization that see religion as antithetical to modernity, many contemporary Japanese reject the term “religion” for activities that they instead label “customs.”73 As Ian Reader notes about 1970s and 1980s Japan, “Japanese people in general are quick to say that they are not reli-gious and describe their society as one where religion either does not exist or has in some way died out . . . , however, this is certainly not the case for, in reality, Japanese people in general exhibit extremely high levels of religious activity and behaviour, and Japanese society and culture are intri-cately interwoven with religious themes.”74 After the Aum Shinrikyō in-cident in 1995, some independent spiritualists rejected the label “religious” for their activities in order to appeal to a Japanese public that had become deeply suspicious of alternative spiritualist movements.75 Therefore, any at-tempt by a court to “objectively” define what constitutes a religious activity comes with contentious baggage.

Conclusion

The rulings in both cases are fraught with problems: the courts largely ignored the significant changes and commodification of human funerals and memorial rites in late twentieth century Japan, placed pet memorial rites in a category distinct from memorial rites for other animals and for inanimate objects (none of which are taxed) because of the presence of pet remains and because pet memorial rites generate more income for temples than these other memorial rites, and struggled to make sense of the com-plex gradations between secular and religious pet cemeteries. They also


relied on different standards to ascribe or deny religious qualities in pet memorial rites and to define social consensus to reach their decisions.

The Jimyōin and Ekōin cases illustrate the differences between memo-rial rites for animals and inanimate objects sponsored by corporations on the one hand and more private pet funerals on the other. Even though me-morial rites for military, food, laboratory, and zoo animals have served as conceptual models for memorial rites conducted for companion animals, the latter were also strongly influenced by human funerals. Like pets them-selves, they are hybrid rituals that are difficult to classify with certainty as completely like human or like animal rites. The language of corporate memorial rituals emphasizes animal sacrifice for the prosperity and health of the nation, whereas this discourse is generally absent from pet memo-rial rites. The development of private pet memorial rituals reflects the ten-sions between communally centered religious practices during the mid- twentieth century and individually focused religious practices during the late twentieth century.

It seems then that the protracted legal disputes about the taxation of pet memorial rites are as much criticism against “wasteful,” “unproductive” pet-keeping as they are a reflection of public discontent with the privileges of religious institutions. Both are seen as detrimental to society. Pet me-morial rituals are easily branded as a waste of money. The use of pets as symbols of material excess is a common trope across different cultures. As James Serpell has pointed out, pets have little utilitarian value; thus, pet-keeping has often been depicted as a wasteful extravagance. In the past, pet-keeping practiced by the social elites was an image of decadence. Even in the contemporary period, this image is very potent and often stressed in the media.76 Serpell writes, “The recent proliferation of pets in modern indus-trial societies is regarded by many as the direct product of western material affluence, and some would argue that the entire practice is a self-indulgent waste of emotional and financial resources that would be better spent in the service of under-privileged human beings.”77 This is also applicable to Japan, where critics see the recent boom in pet-keeping as an outgrowth of late twentieth century consumerism — particularly that of women.78 Ōhira Ken, a strong critic of contemporary Japanese consumerism, asserts that despite being widely regarded as family members and friends, pets are also treated as (and traded like) living stuffed toys.79

The Japanese mortuary industry, skillfully parodied in Hara Takahito’s


Ohaka ga nai (I have no grave; 1997), has a similarly tarnished image of being exploitative and commercialized. The media have accused funeral companies of predatory practices in recruiting clients and fixing prices.80 Funeral workers, such as the encoffineer in Takita Yōjirō’s Okuribito (Departures; 2008), may earn the gratitude of bereaved clients, but their work also entails aspects considered dirty by larger society.81 The roles of Buddhist clerics in mortuary practices are also charged with negative con-notations. Buddhist clerics are widely criticized for charging exorbitant amounts of money for posthumous names and for the exploitative nature of rites for mizuko.82 They are often accused of treating their profession as a business rather than as a religious vocation.83 The money-hungry, mate-rialistic Buddhist cleric in Itami Jūzō’s Osōshiki (The funeral; 1984), with his penchant for expensive cars and other amenities, embodies this popular stereotype. The criticism of pet memorial rites needs to be understood in the context of a widespread dissatisfaction with the perceived tax advan-tages of religious institutions, the popular notion that the funeral industry is exploitative, and the idea that Buddhist clerics amass wealth and ignore the tenets of their religious teachings. All this adds up to the public assess-ment that income earned by Buddhist temples through the performance of pet memorial rituals is illicit and at a minimum should be taxed.

reli 73h textbook chapter 3

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