Separation of Church and State

 

 

RELIGIOUS LIBERTY: PART ONE

 

A FUNDAMENTAL HUMAN RIGHT OR PART OF A BALANCING ACT IN DISCRIMINATION LEGISLATION.

JEAN ELY

 

 

 

The debate over same-sex marriage has promoted a discourse around religious liberty.

 

This issue has taken centre stage for those who object on the basis of religious belief or matters of conscience. The debate about laws which are in conflict with the religious belief of individuals or churches has to date centred around legislative exemptions .

 

Caroline Evans,a former Dean of the Melbourne Law School at the University of Melbourne considers that, although there may be sometimes good reasons for giving exemptions on religious grounds, under non-discrimination law, the ‘current balance between protecting religious institutions but not religious individuals provides evidence that it is a sensible principle to continue with respect to same sex marriage.[1]

 

Evans mentions segregationist churches in the US who discriminate on the basis of race or pacifist Quakers withholding tax for defence spending. She ignores two thousand years of persecution, and bloodshed (ongoing in some parts of the world) and the French, American – and Australian Englightenment solution. This was a separation of religion from the State, a Bill of Rights provision –Section 116 – of the Australian Constitution. This provision has not been mentioned in any current commentaries on the same sex marriage debate.

 

In this paper, I suggest that recent developments in discrimination law, both here and internationally, are cold comfort for both institutions and individuals who have strong religious beliefs and are prepared to say ‘Here I stand, I can do no other’ on the same-sex marriage issue.

 

Perhaps religious men and women of strong conscience should look again at Section 116 of the Australian Constitution which says:

 

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

 

This section, which until 1981 some citizens considered a ‘ religious liberty’ or ‘Bill of Rights’ type clause was based on the First amendment and Article 6.3 of the Constitution of the United States [2] Our Founding Fathers understood that it prohibited both State interference in religion on the one hand and State Aid to both religion and religious institutions in 1898. [3]

 

 

 

In relation to Section 116 however, Australian churches and religious men and women of Christian conscience, will need to look back, in shame, to the DOGS case of 1981.[4] In order to take the Queen’s shilling for their religious schools, the defendants in this case— churchmen and women —argued for 26 days in the High Court of Australia that their schools were not religious institutions; were no more religious than public schools; and the words’ any religion’ meant ‘a particular State religion’. With the exception of Justice Lionel Murphy, the six judges of the High Court, agreed with them.The majority judges  ignored the intention of the Founding Fathers of 1898, namely the separation of religion from the State. They and turned the religious liberty clause of the Australian Constitution on its head.[5]

 

How? According to the majority judgements, the words’ any religion’ really means ‘a State religion’or ‘a State church’. However, if this meaning is given to “any religion’ and transferred to the remaining clauses, Section 116 reads:

 

The Commonwealth shall not make any law for establishing a State religion or church , or for imposing any religious observance [of a State religion or church] , or for prohibiting the free exercise of a State religion or church, and no religious test [of a State religion or church]  shall be required as a qualification for any office or public trust under the Commonwealth.

 

On this interpretation Section 116 is no longer a prohibition on the Commonwealth. The Commonwealth can make any law it wishes concerning religion so long as it does not make it for a State religion or church. In 1981 the plaintiffs believed that a Bill of Rights protection, a clause that they believed was a protective shield —had been turned into a sword.[6]

 

Thirty six years later, Australian religious schools for the wealthy are overflowing with taxpayer largesse while impoverished public schools go begging. And Australian citizens are now cognizant of sex abuse scandals perpetuated in some taxpayer funded religious schools.  Australian churches and many of their employees have long since lost the moral, let alone the liberty of conscience initiative in Australian society.

 

However, some citizens in Australia may still believe that liberty of and from religion is a basic human right that should not be downgraded into a balancing act in discrimination legislation, administered by tribunals using an inquisitorial method. Although religious groups are currently lobbying for religious exemptions in any same sex marriage legislation, and these may initially have a chilling effect, they are no substitution for what was intended as a strong Bill of Rights section of the Constitution – if it had not been read down and out by black letter law judges.

 

Those who believe in separation of religion from the State, might like to consider developments in the High Court itself and academic commentaries on the DOGS case since 1981. Scholars who accept the High Court decision in the DOGS case, are a minority. Some, including Caroline Evans, are prepared to question it, while others strongly advocate a wall of separation between religion and state as the only solution to liberty of and from religion. 

 

But first,

 

Are Exemptions from Discrimination Legislation a Guarantee of Religious Liberty?

 

The short answer is “No” with the question, “ If religious organisations are paid by the State to run public services like education, health, and employment agencies : Why should they be exempt ?” Why should parents and children with the wrong beliefs or sexual orientation be turned away from schools and hospitals that are 80-90% publicly funded ? These are basic issues of accountability and democratic procedure.

 

Should he who pays the piper, call the tune?

 

Caroline Evans claims that under current discrimination legislation individuals like cake makers may not be protected but religious institutions are. But are they?

 

Commentators[7] discuss the issue as a balancing act between liberty and equality, both considered fundamental rights deserving of legislative protection in a democratic society.

 

But what happens when they are in conflict?

 

In the last decade, there has been a landmark case - the Cobaw case,[8] which tested the extent to which it is lawful for religious groups to discriminate through carve-outs or exemptions to anti-discrimination legislation. Cobaw Community Health Services successfully sued Christian Youth Camps (‘CYC’) for unlawful discrimination on the basis of sexual orientation. CYC ran Phillip Island Adventure Resort, a commercial operation established by the Christian Brethren Trust . The Christian Brethren are opposed to homosexual activity as being against biblical teaching. Cobaw wished to hire a camp facility from the appellants for the use of same sex attracted young people. CYC ( by its camp manager) refused.

 

The majority judges, Maxwell P and Neave JA (Redlich JA dissenting)  held that CYC was unable to bring its conduct within the religious exemptions of the 1995 Equal Opportunity Act of Victoria. [9] The majority judges found that CYC was not a ‘body established for religious purposes’ and therefore could not avail itself of the exemption under S 75 of the EOA 1995. CYC existed for the fundamentally commercial purpose of making campsite accommodation available to the public, and the requirement that the camp be conducted in accordance with Christian beliefs and principles did not transform this secular purpose into a religious one. The Court noted that although the provision of services may have a religious motivation, unless the activity itself is intrinsically religious, ‘it is difficult to see ow questions of doctrinal conformity or offence to religious sensitivities can meaningfully arise.’ [10]

 

Given the number of religious organisations providing various social services on a commercial basis, this approach may have far-reaching consequences. For example, in 2017 the Catholic Church in Victoria is involved in 492 schools, at least 11 hospitals and numerous aged care facilities and  child welfare institutions

 

Maxwell P and Neave JA (Redlich JA dissenting) held that corporations could not hold beliefs, and therefore could not rely on the exemption under s 77 of the EOA 1995.[11] Even if this was not the case, the refusal was also not necessary to comply with genuine religious beliefs or principles.

 

In law, churches may be voluntary organisations. But many educational, health and other enterprises run by religious groups are administered by corporations. If Maxwell P. is correct, and corporations cannot hold beliefs, where does this lead for religious exemptions for discrimination legislation?

 

It should be noted that all judges focused on the concept of dignity, identity, status and self-worth when discussing the young people discriminated against. This approach mirrors the approach taken in Canada and South Africa. [12] In this case, theirs was the more ‘fundamental’ right.  Religious liberty, freedom of and from religion, freedom of conscience has been downgraded in a ‘balancing’ act .

 

Above all, it should be noted that in the Cobaw case all three judges, servants of the State were free to determine what under Section 75(2) constituted the ‘doctrine’ and ‘ injury to the religious sensitivities’  of the Christian Brethren when they decided that the exemption under Section 75(2) of the Equal Opportunity Act did not apply.  

 

Since the Cobaw case, there have been changes to the religious exemptions in the EOA 1995.[13] These adopted the broader definition of ‘religious body’ found in the Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38 (5) (b) The definition now reads

 

‘an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles’ [14]

 

Religious ‘entities’ may take some comfort from this ‘broader’ definition, but individuals appear to have no protection. And the actual definition of ‘religious doctrines, beliefs or principles’ which for many citizens are private matters of conscience central to their dignity, identity, status and self-worth will be defined ‘objectively’ rather than ‘subjectively’ by civil magistrates.

 

So much for separation of religion from the State. So much for the late eighteenth century enlightenment solution hammered out after centuries of religious wars, bloodshed and persecution.

 

Yet the concept of separation of religion and the State, whatever the High Court may have said in 1981, was firmly embedded in the Australian Constitution by the two men, Henry Bournes Higgins and Andrew Inglis Clark who ensured its inclusion in the first place.

 

It is a very powerful idea, and ideas have a habit of resurrecting themselves in every generation. If properly interpreted the idea of separation of religion from the State could - and  should - solve the problems of both parties in the Gay marriage debate.

 

A lot of water has gone under Australian social and ideological bridges since the DOGS case in 1981 when this powerful idea was turned on its head.

 

This is the subject of the next Press Release.

 




[1] Evans, C.’Same Sex marriage, religious freedom and the law ‘, https://pursuit.unimelb.edu.au/articles/same-sex-marraige-religious-freedom-and-the-law , accessed 5 November 2017.

[2] First amendment, Constitution of the United States: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… And

Article 6.3 Constitution of the United States: …no religious test shall ever be required as a qualification to any office or public trust under the United States

[3] Constitutional Convention Debates 1898, vol. 2 pp. 1779 ff ;R. Ely, Unto God and Caesar, (1976) MUP;

[4] A-G (Vic) ex rel Black v Commonwealth [1981] HCA 2: 91981) 146 CLR 559 at 605

 

[5] Jean Ely, Contempt of Court, 2011 Arena Press; M.J. Ely Erosion of the Judicial Process, 1981, Salter Press.

[6] The plaintiffs (the DOGS) subsequently opposed the extension of Section 116 to the States in the 3 September 1988 referendum. They placed a two page Advertisement in the national newspaper. Politicians in Canberra, most of whom initially supported the Referendum, waxed abusive, and Ray Nilsen, the co-ordinator of the High Court case rang the Catholic Education authorities and told them that if the Referendum succeeded he would be in the State Courts the next day. The Catholic Church authorities and the Coalition opposed the referendum and it failed.

 

[7] Bobbi Murphy, ‘Balancing Religious Freedom and Anti-Discrimination: Christian Youth Camps Ltd v Cobaw Community Health Services Ltd’, Melbourne Law Review,2017, vol 5  at http://austli.edu.au/au/journals/MelbULawRw/2017/5.html Mark Russell, ‘Christian Brethren-owned Camp Discriminated against Gays: Court,’ The Age 16 April 2014.

[8] Cobaw Comunity Health Services Ltd v Christian Youth Camps Ltd [2010] VCAT 1613 (8 October 2010) [7] (Judge Hampel).Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75; (2014) 308 ALR 615

[9] Ibid 679 {302}- [303]

 

[10] Ibid 671 [268]; see also at 679 [303]

[11] Ibid 680[308], 682[316] (Maxwell P), 706[411] (Neave JA, 721[473] (Redlich JA)

[12] Law v Canada [1999] 1SCR 497, 529 [51] ( Iacobucci J). National Coalition for Gay and Lesbian Equality v Minister of Justice [1999] 1 SA 6, 37 [36] (Ackerman J) (Constitutional Court)

[13] In particular Section 75 (2) of the 1995 Act exempted from the anti-discrimination provisions of the Act “anything done by a body established for religious purposes” that (a) conforms with the doctrines of the religion; or (b) is necessary to avoid injury to the religious sensitivities of people of the religion.

[14] Equal Opportunity Act 2010 s 81 (b)

 

 

RELIGIOUS LIBERTY: PART TWO

A FUNDAMENTAL HUMAN RIGHT OR PART OF A BALANCING ACT IN DISCRIMINATION LEGISLATION?

Michael Bachelard  of  15 November in the Fairfax Press has no doubt about the answer. Religious freedom is, he claims, and should be, limited by civil laws. But the further question is, what civil laws? http://www.theage.com.au/federal-politics/political-opinion/samesex-marriage-debate-religious-freedom-is-and-should-be-limited-20171114-gzli5o.html.

http://www.smh.com.au/federal-politics/political-opinion/samesex-marriag...

His article, Same-sex marriage debate: Religious freedom is, and should be, limited is highly derogatory of some religious beliefs and/or practices.  It has a whiff of ‘pay-back in it.

The Jesus People consider themselves a religion; they follow an ascetic form of Christianity. They also, allegedly, violently abuse women and practise polygamy, as a way of getting closer to God. The Children of God sexually abused young children in the name of Jesus Christ. This was not ancillary to their religion; it was part of their observance….

Then there is the sub-section of Muslim believers who mutilate girls' genitalia….

OUCH! How would this affect you if you were a following of Jesus or Mohammed.

After the results of the Same Sex Marriage plebiscite were announced on the ABC, it was interesting to note how representatives of the Roman Catholic, Anglican and Muslim groups reacted. The Roman Catholic and Anglican representatives were particularly concerned about the religious integrity of their taxpayer funded education, health and social services. However, given the numbers – approximately 61% to 39% Religious exemptions relating to marriage equality have been pushed down the line, to be dealt with after Christmas, according to reports in News Corp ($) and Fairfax papers on 17 November 2017.

Yet once again, our established religions were more concerned with power and taxpayer funding and lobbying for both in the corridors of power, than they are with freedom OF – and- FROM religion.

But then, issues freedom of conscience usually loom large for persecuted minorities rather than those identified with established religion.  Christ himself would say

Render unto Caesar the things which are Caesar’s; and unto God the things that are God’s.” Mathew 22.21

DOGS believe uncompromisingly in the separation of religion from the State and the public funding of public schools only.

If Australia had separation of religion from the State, then, if marriage is nothing more or less than a civil registration of relationships, its definition should never have been the business of  religious organisations unless this was relevant in a sacramental marriage ritual for their adherents.

Meanwhile, billions of dollars are being diverted into private religious schools which are concerned that they will not be permitted to discriminate against teachers, pupils and parents on whatever basis they choose to call ‘religious belief’.

DOGS position is that if religious institutions take the Queen’s shilling, then those institutions should fall under the civil law of the land. If they do not take the Queen’s shilling, then it is a different matter.

The Muslim representative on the ABC differed from his Christian brethren. He mentioned the need for religious liberty and a Bill of Rights. Where did he get that Enlightenment idea from? It is rare to find such religious liberties in Muslim countries that practice Sharia Law.

Yet, back in 1901 when Australia  was an Enlightened country, our Founding Fathers  inserted such a provision in the Australian Constitution. If the High Court judges had the temerity to look at the intentions of our Founding Fathers when they placed Section 116 in the Australian Constitution, they could have such a provision again.

In 1981, in the DOGS case, the High Court refused to look at the intentions of the Founding Fathers when they placed Section 116 in the Australian Constitution. But what would happen if Section 116 was tested once again? A lot of water has gone under the legal bridges since 1981. Those interested in genuine freedom of and from religion should inform themselves of recent developments.

 A lot has happened since the DOGS case of 1981. 

Firstly, The Acts Interpretation Act Amendment Act of 1984[1], Section 7 amended the original 1901 Act to include a Section 15AB. This permitted the use of extrinsic material in the interpretation of an Act to determine the meaning of a provision when it is ambiguous or obscure , or the ordinary meaning leads to a result that is manifestly absurd or unreasonable. In 1988 the Mason High Court reversed the original interpretative rule and the books of the Convention debates were read in open court. [2]

As a result, many legal commentators and historians, confronted with recent issues of religion and the state have been revisiting the DOGS case. They have discovered what the plaintiffs could have told them in 1981 – that what was clearly a version of the religious liberty clauses in the American Constitution, has been rendered meaningless in the Australian context.

What role should history play in Constitutional Law

The issues of freedom of conscience, religious liberty and religion and the state are perennial and raise their head, in different guises, in every generation. What, for example would be the fate at the High Court level of a Commonwealth ban on the hijab or burqa?

When a problem of interpretation arises under the Australian Constitution, is the judicial duty to consult the historical records to discover the original intentions of the founders?[3] or Should they regard the constitutional document as having been set free in 1901 from the intentions, beliefs, and wishes of those who drafted it, a document to be viewed by each succeeding generation with the eyes of their own times? [4]

For legal commentators, the questions arising from the DOGS case include techniques of constitutional interpretation as well as well as the intentions of the American and Australian Founding Fathers. Historians have an easier question: What did delegates to the Constitutional Convention intend when they inserted Section 116 into the Australian Constitution? Who do you turn to?  Mere commentators like Quick and Garran;[5]  ( who have been proved to be questionable) or Henry Bournes Higgins who proposed the religious liberty Clause in 1898 ; or the originator of Section 116 - Andrew Inglis Clark?

The High Court judges chose the biased commentators If they  went back to Andrew Inglis Clark, we would have separation of religion from the State. 

First, let’s delve back into our history: What happened back in the Constitutional Convention of 1898

Long before the DOGS High Court case in 1981, Australian colonial historians had charted the 1836 abandonment of the established English Church in colonial NSW;[6] the abandonment of State Aid to religion in the 1860s,[7] and the abandonment of State Aid to religious schools in the later nineteenth century. [8]

So, when Edmund Barton and others told Henry Bournes Higgins in the 1898 Constitutional debate that there was no need for a religious liberty clause based on the American First Amendment in the Australian Constitution, it was not only because the Federal Parliament  would not have express power to deal with religion. It was also because they believed they had solved ‘the religious’ problem. They had already separated religion from the State. [9]

He said:

 ..Because we are a Christian community we ought to have advanced so much since the days of State aid and the days of making a law for the establishment of a religion, since the days of imposing religious observances or exacting a religious test as a qualification for any office of the State, as to render any such dangers practically impossible, and we will be going a little too far if we attempt to load this Constitution with a provision for dangers which are practically non-existent.

Inglis Clark, Higgins, and other separationists were not convinced that there was no probability of such ‘enlightened’ communities retracing their steps. ? They wanted guarantees. Why?

Religious, mainly clerical leaders of the 1880s and 1890s had not always accepted their separation from either the public place, or, in the case of the Roman Catholic hierarchy, the public Treasury. The religious backdrop to the 1890s Federal Constitutional Conventions was punctuated by petitions. In the period 1897- 1898 there were two competing petitions: One, organised by the colonial Councils of Churches was a petition to recognise Almighty God in the Preamble. The other was a petition of what Higgins claimed to be 38,000 signatures organised by the 2000 plus Seventh Day Adventists recently arrived from the USA.[10] They opposed the inclusion of the recognition clause in the preamble.

This story has been well documented by Richard Ely and taken up by other commentators[11].

Of particular interest was the religious seriousness, the strong support for the recognition clause and the strong opposition to the insertion of Higgins religious liberty clause into the Australian Constitution by both Quick as a Victorian delegate to the Convention and Garren, initially as Reid’s Secretary and later as assistant to the drafting committee. [12]Quick a loyal Methodist, and Garren, an active Anglican were strongly identified with the ‘recognition’ movement and against the insertion of Section 116.  [13]

But was the Quick and Garren account adopted by the majority judges in the DOGS case mistaken, and if so, how and why? Ely certainly thought so.

The historian J.A. La Nauze has been held accountable by Stephen McLeish for giving air to the Quick and Garren account that Section 116 was inserted in the Constitution in response to H. B Higgins concern that the recognition of God in the Preamble might justify intolerant or restrictive religious legislation.[14] But this is not entirely fair on La Nauze. Quick and Garran dealt with the  Inglis Clark  guarantee of religious liberty namely

A State shall not make any law prohibiting the free exercise of any religion

included in the draft federal Constitution handed down by the 1891 Convention. They remarked:‘How such a clause crept into the Bill of 1891 it is difficult to conjecture’  La Nauze remarked briefly, but aptly that ‘Inglis Clark could have told them” [15]

So who was Inglis Clark, the Tasmanian Attorney General and in 1898 Supreme Court Judge, who first placed a religious liberty clause in his 1891 draft of the Australian Constitution, and what were his reasons for doing so.

In the last twenty years, interest in the Tasmanian responsible for the first draft of the Australian Constitution has increased a thousandfold.

But before that, Clark dropped off the historians’ radar for many decades. He had few wealthy and powerful friends on the mainland, and died, in 1908, disappointed in his ambition of a position on the Australian High Court. But the descendants of his Hobart family and friends always knew about him. They knew about his house ‘Rosebank’ in Hamden Road, Battery Point. They knew about the shipyard of his anti-transportation father-in- law, Ross, and his final resting place in what remains of the Sandy Bay cemetery.  They knew he was an Americanophile and an admirer of the Italian democrat, Giuseppe Mazzini. The historian John Reynolds resurrected his memory in the 1960s, and Richard Ely connected him to issues of religious liberty in the 1970s. By 2001, with Federation centenaries in vogue, books on his life and work were launched and scholars came from all over Australia to Hobart to celebrate his contribution to the Australian polity.

Clark published a commentary on the Constitution in 1901 (second edition in 1905) But he did not attend the 1898 Convention, preferring instead a visit to America to visit Justice Oliver Wendell Holmes. Nor did he comment on Section 116 in his Constitutional commentary. It is not surprising that Clark fell into semi-oblivion. But although he was not present at the 1898 Convention he had been active in the Tasmanian House of Assembly debates on the Draft Commonwealth Bill in 1897.

And there is other evidence in his manuscript papers concerning his adherence to a strong separationist position. .In this context  I would like to refer to two papers in manuscript, one in The Clark Paper, an 1885 essay  entitled ‘Denominational Education’[16] and the other is in  a 1901 notebook sold at a Christie’s auction in 1996 . The notebook contained poems by Clark, an intensively worked-over handwritten fragment of his 1901 Studies in Australian Constitutional Law, and a short essay entitled ‘The Preamble to the Constitution of the Commonwealth of Australia.’This essay was published by R.Ely in the Australian Law Journal in 2001

Tasmanian Debate on the Draft Commonwealth Bill 1897

On ‘recognition’ Clark was one of the minority in the Tasmanian House of Assembly who unsuccessfully opposed it. He believed that those opposed as well as those who were indifferent, represented the majority. Acknowledgement of God could only come from individuals. ‘Recognition’ practically compelled ‘a minority to stand before the world as having desired it also…From a religious standpoint it would be irritating; he would think his worship had been violated and desecrated. ‘[17]

Clark also proposed an amendment to what had been Clause 81 in his original draft, and was now Section 109. His proposals was to add to the words ‘No State shall make any law prohibiting the free exercise of any religion’ the words’ nor appropriate any portion of its revenue or property for the propagation or support of any religion’. It passed the Assembly on the voices.

In relation to the amended Section 109 he wrote a Memorandum to the 1898 Convention. He argued that in no way were forms of religion to be aided or impeded by the provincial legislatures.

In its present form Section 109 secures religious equality for all the citizens of a State, so far as it prevents the State from placing the adherents of any form of religion under any disadvantage or restriction in the exercise of it in comparison with adherents of other forms of religion; but it does not secure perfect religious equality to all the citizens so far as the granting of any special privileges or favours or endowments to particular forms of religion is concerned. And the object of the amendment is to secure perfect religious equality in both directions, but preventing any particular benefit or support being given to any form of religion. [18]

In the event, the Convention not only declined to accept Clark’s amendment, but omitted Clark’s Section 109 altogether. Clark’s bid to constitutionally entrench freedom of and from forms of religion in the States failed. It was left to H. B. Higgins, armed with petitions against the ‘recognition’ clause in the Preamble  to insert a comparable clause relating to the Commonwealth rather than the States on March 2 1898. The result, as John La Nauze remarked, was that ‘the States were left free if they wished, to legislate for religious intolerance.

Justice Wilson, following the Quick and Garran account, refers to the rejection of Clark’s amendment as follows:

It will be recalled that the 1898 Convention was invited to adopt a form of words for the religion clause which would have placed the present issue beyond doubt, when an amendment from Tasmania to the effect that the clause include the words ‘nor appropriate any portion of its property for the propagation or support of any religion’ was proposed and defeated.

But

‘Be these things as they may, I believe it would be wrong to attach undue significance to the history of the clause. The actual words of the text supply the only firm ground on which to base a conclusion. [19]

So thought six of his fellows on the bench.

Clark on Denominational Education

This paper was an argument against the ‘payment by results’ system which was being used by religious interest to regain the State Aid to their schools which had been withdrawn in 1854. In this paper Clark proved himself a ‘hard liberal’ a man with a deep belief that the liberal political order evolving towards true freedom of the individual, civic and religious order – was a fragile plant, vulnerable to subversion within and perils without. [20]

He wrote

‘..if the state should restore to the Roman Catholic portion of the population the whole of that portion of its revenue which it derives from them as citizens to be expended by them in establishing and maintaining a social organisation sufficiently separate from the state to permit it to be sufficiently permeated with Roman Catholic teaching …then the state…must refuse it; because the concession of it would be a recognition of the propriety of an imperium in imperio, and a divided sovereignty is simply political emasculation and asthenia.

And later,

Separate grants by the state in aid of denominational schools upon the principle of payment by results must necessarily amount to state endowment of particular forms of religion.

The Preamble to the Constitution of the Commonwealth of Australia.[21]

Clark , the ‘hard’ liberal who believed in fundamental laws for the protection of the natural rights of the individual beyond the reach of the majority of the hour, wrote fighting words on the recognition of God in ‘The Preamble to the Constitution of the Commonwealth of Australia’. He wrote tortuously, but fiercely. To require, he wrote

…a minority of citizens to expatriate themselves in order to escape from membership of a nation or community which by a vote of a majority of its members undertakes to make a corporate confession of any religious doctrine or belief is to use political, and consequently physical, force in the name of religion as clearly and directly as it was at any time used for the burning or expulsion of heretics.

In this paper Clark chose his most trenchant criticism, not for Catholics, who were but being consistent in imposing a declaration of the existence of God upon the people of Australia , but for Protestants whose ‘fundamental doctrine was the essentially and absolutely individualistic character of relations of each human soul to its creator.’ Not unsurprisingly, Clark by at this stage of his life, like Oliver Wendell Holmes, a Unitarian. His remarks pertinently illustrate Milton’s allegation that ‘New Presbyter is but Old Priest write large.’

So Andrew Inglis Clark, and those who voted to insert Section 116 into the Australian Constitution were underlining a situation which their colonial forebears had already forged – a separation of religion from the State in which neither religion nor religious schools received ANY taxpayer funding.

This is the answer to the Historical question.

But what has happened in case law and legal commentaries since 1981?

That is the subject of the next Press Release.




[1] Acts Interpretation Amendment Act (Cth) 1984 No. 27 of 1984, Section 7.

[2] Cole v Whitfield, [1988] HCA 18; (1988) 165CLR 360, 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

[3] Greg Craven ‘Heresy or Orthodoxy:Were the Founders Progressives? (2003) Federal Law Review, Vol. 31, 87-129

[4] M. Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’, 2000 Melbourne University Law Review, Vol. 24 (1) at http://www.austlii.edu.au/au/journals/MelbULawRw/2000/1.html

Accessed 20 July 2017

[5] R. Ely Unto God and Caesar, pp 88,- 102.

 

[6] B. Fletcher, ‘The Anglican Ascendancy 1788-1835,’ and P. Curthoys, ‘State Support for Churches 1836-1860’ in Anglicanism in Australia,: A history, 2002  edited by B. Kaye, T. Frame, C. Holden, and G. Treloar, MUP. 

[7] J. Gregory, Church and State: Changing Government Policies towards Religion in Australia; With Particular Reference to Victoria since Separation, 1973, North Melbourne Cassell Australia.

[8] A.G. Austin, Australian Education 1788-1900, 1963 MUP; J. Gascoigne, The Enlightenment and the European Origins of Australia, 2002, Cambridge University Press. 

[9] Constitutional Debates, Melbourne 1898, vol.2 p1770-72

[10] R. Ely, Unt God and Caesar, 24-30,55-6,82,86,138n, 142,n.

[11] H. Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (1999) ( Cambridge University Press);S, McLeish, ‘ Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ Monash University Law Review(1992) Vol 18, No 2.  207 at 228; L. Beck, Higgins’ Argument for Section 116 of the Constitution, Legal Studies Research Paper No 14/45 May 2013, Sydney Law School, University of Sydney;

R. Mortensen, ‘The Establishment Clause: A Search for Meaning,’ University of Queenslamd Law Journal, (2014) Vol. 33(1) 109.

[12] La Nauze, The Making of the Australian Constitution (1972) 135.

[13] Ely Ibid 143 notes 35 and 36.

[14] S, McLeish, ‘ Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ Monash University Law Review, (1989) Vol 18, No 2. 1992, 2017 at 229

 

[15]  La Nauze, The Making of the Australian Constitution,(1972)  228

[16] R. Ely , ‘Protecting Commonwealth from Church: Clark’s ‘Denominational Education’, and Beyond, Chapter 8 in A Living Force; Andrew Inglis Clark and the Ideal of Commonwealth, ed. Richard Ely, with Marcus Haward and James Warden, Centre for Tasmanian Historical Studies, University of Tasmania, 2001 140-183

[17] Parliament of Tasmania, Debate on the Draft Commonwealth Bill, 1897, Hobart 1897 266-7.

[18] A Inglis Clark, Proposed Amendments to the Draft of a Bill to Constitute the Commonwealth of Australia ( 1 September 1897) ( Records of the Aistralasian Federal Convention of 1897-1898: National Archives of Australia, AA 1971.506, item series 12/9, F162 Clark here refers to equality but not to liberty.

 

[19] Attorney-General (Vic) (Ex rel Black) v Commonwealth [1981] HCA 2, (1981) 146 CLR 580, at 654

[20]  This awareness of the vulnerability of the liberal order is also clear in his ‘ Why I am A Democrat.’ Ibid, Chapter 3.

[21] R. Ely,  ‘ Andrew Inglis Clrk on the Preamble of the Australian Constitution, ‘ 2001 The Australian Law Journal, Vol 75, 36-43.


 





ACCESS MINISTRIES, CHRISTIANS AND THE SEPARATION OF CHURCH AND STATE

 

ACCESS Ministries are concerned that the Andrews Government has sidelined Special Religious Instruction to an opt-in program held outside the hours of secular instruction in Victorian Public Schools.

 

The Government is here fulfilling its obligation to keep separate matters of secular instruction which are for the common good and matters of belief which are matters for private conscience. It is a still a matter of concern that hundreds of millions of the State’s scarce resources are diverted into private, religious schools themselves.

 

As committed Christians, members of ACCESS Ministries might take heart from the fact that the Andrews Government is saving them from ‘yielding to temptation’. What temptation?  The temptation of playing God and seeking power over the minds of children while they themselves worship the God of Mammon - in the form of taxpayer subsidies.

 

However, it should be noted that many ACCESS Ministry instructors are genuine, deeply committed volunteers.  And DOGS understand that many in the so-called Judeo-Christian tradition dream of producing a Godly nation. But, as Christ himself understood only too well -  human nature is - human. And followers of Christ have discovered to their grief that religious establishments and theocracies have a Pharisaic, bloody, and deeply oppressive history.

 

ACCESS Ministries might also take note of their Christian predecessors in both Australia and America who fought for and enshrined the principle of separation of religion and the State in the Constitutions of both countries.

 

DOGS refer them to Jefferson’s letter to the Danbury Baptists at http://www.loc.gov/loc/lcib/9806/danpre.html and James Madison’s Memorial and Remonstrance at http://presspubs.uchicago.edu/founders/documents/amendI_religions43.html

 

These key documents in the history of religion and the State are reproduced below. They are referred to again and again in American Supreme Court findings on the First Amendment. The American experience influenced Andrew Inglis Clark and  Henry Bournes Higgins when they battled to insert Section 116 into the Australian Constitution. Only Justice Lionel Murphy, himself a committed humanist, understood this fundamental history in the battle for separation of religion and the state and freedom of conscience in the 1981 DOGS case.

 

They are reproduced below :


KEY AMERICAN STATEMENTS IN RELATION TO SEPARATION OF CHURCH AND STATE AT


Jefferson’s letter to the Danbury Baptists at http://www.loc.gov/loc/lcib/9806/danpre.html and James Madison’s Memorial and Remonstrance at http://presspubs.uchicago.edu/founders/documents/amendI_religions43.html

Jefferson's Letter to the Danbury Baptists
The Final Letter, as Sent

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

 

 

 

 

 

 

 

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Amendment I (Religion)



Document 43

James Madison, Memorial and Remonstrance against Religious Assessments

20 June 1785Papers 8:298--304

To the Honorable the General Assembly of the Commonwealth of Virginia A Memorial and Remonstrance

We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,

1. Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no mans right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

2. Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

4. Because the Bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are by nature equally free and independent," [Virginia Declaration of Rights, art. 1] all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." [Virginia Declaration of Rights, art. 16] Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their Religions unnecessary and unwarrantable? Can their piety alone be entrusted with the care of public worship? Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.

5. Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.

6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive State in which its Teachers depended on the voluntary rewards of their flocks, many of them predict its downfall. On which Side ought their testimony to have greatest weight, when for or when against their interest?

8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to secure & perpetuate it needs them not. Such a Government will be best supported by protecting every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.

9. Because the proposed establishment is a departure from that generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain repose from his Troubles.

10. Because it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.

11. Because it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced among its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bounds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed "that Christian forbearance, love and charity," [Virginia Declaration of Rights, art. 16] which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?

12. Because the policy of the Bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of revelation from coming into the Region of it; and countenances by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of Levelling as far as possible, every obstacle to the victorious progress of Truth, the Bill with an ignoble and unchristian timidity would circumscribe it with a wall of defence against the encroachments of error.

13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?

14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens, and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. "The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly." But the representation must be made equal, before the voice either of the Representatives or of the Counties will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.

15. Because finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the "Declaration of those rights which pertain to the good people of Virginia, as the basis and foundation of Government," it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the Will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the Trial by Jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary Assembly or, we must say, that they have no authority to enact into law the Bill under consideration. We the Subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their Councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his blessing, may redound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.


The Founders' Constitution
Volume 5, Amendment I (Religion), Document 43
http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html
The University of Chicago Press

The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).

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This is Max Wallace's Page. Max is dedicated to the cause of separation of Religion and the State, not only in Australia, but throughout the world. 

 

A SECULAR CHRONOLOGY

Max Wallace

 Max Wallace is vice-president of the Rationalist Association of New South Wales and a council member of the New Zealand Association of Rationalists and Humanists.

1215 Magna Carta raises the principle of equality through a ‘fair trial for all’, leading to the notion of the rule of law.

1517 Martin Luther posts a document on the front door of the Catholic Church in Wittenberg, Germany. It contains 95 theses attacking church indulgences. Luther later spreads his ideas through the newly invented printing press. It is the start of the Reformation 1533 Henry VIII disestablishes Catholicism in England, sets up the Church of England with himself as head of the church and the state. Henry loots the Catholic churches of their wealth and assets, divorces his first wife.

1601 The Statute of Charitable Uses becomes law in England in the last days of the reign of Elizabeth I. For the first time, it formalises the status of religion as ‘charity’. Five centuries later, in 2006, Pope Benedict XVI characterises religion as ‘supernatural charity’1686 Philosopher John Locke uses the term ‘secularism’ to distinguish ‘the business of civil government from that of religion because the church itself is a thing absolutely separate and distinct from the Commonwealth’1688 William III (William of Orange) a Protestant, reigns in England; a Bill of Rights establishes supremacy of parliament over king.

1774 James Madison, a future US president, writes his’ Memorial and Remonstrance’, laying the groundwork for the drafting of America’s secular First Amendment to their constitution; it argues against the use of tax-raised funds to finance churches and religion 1776 July 4,  American Declaration of Independence 1788 Australia colonised 1789 French Revolution ends monarchy and the power of the Catholic Church in France; the concept of the citizen with rights is formalised with the themes of Liberty, Equality and Fraternity 1791  First Amendment to the American Constitution lays the foundation for the secular state; Thomas Paine’s Rights Of Man is published.

1801 Napoleon reinstates the Catholic Church as national religion of France.

1802 Thomas Jefferson’s Danbury letter makes first mention of a wall of separation between church and state.

1805 A British court in Morice v Bishop of Durham extends the ‘charitable purpose’ of the 1601 Statute of Charitable Uses to mean purposes that serve the purposes of the wealthy including ‘advancement of religion.’

1830s Sealers and whalers arrive in the early decades in New Zealand; as it is colonised, New Zealand is made part of New South Wales.

1836  A Church Act allows funding for four main religions in the colony of Sydney; an exasperated Governor Bourke says he looks forward to a time when churches would ‘roll off state support like saturated leeches.’

1840 New Zealand becomes a separately governed Dominion of the British Crown; 6 February, the Treaty of Waitangi is signed by Māori tribes and the British government.

1848 Attempted revolutions and uprisings in Europe and elsewhere, partly caused by new political ideas and chronic poverty.

1849 John Stuart Mill writes, in respect of education, that ‘all [subjects] are secular except religion.  All the arts and sciences are secular knowledge. To say that secular means irreligious implies that all the arts and sciences are irreligious. It is like saying that all professions, except that of the law, are illegal.’

1864 The Pope publishes an encyclical demanding that Catholic children attend only Catholic schools, not the emerging secular public schools. 

1870s Governments fund  ‘free, compulsory and secular’ schools in Australia and New Zealand.

1891 Pemsel case in British Privy Council confirms tax-exempt status of religion as charity.

1901 States federate to become the Commonwealth of Australia with a federal constitution. After some 1890s debates, includes s.116 intended to formalise separation of church and state, intentionally based on the US First Amendment.

1905 France formally separates church and state by an act of parliament. Article 2 states ‘The Republic does not recognize, does not salary, nor subsidize, any religion’.

1910 A referendum in Queensland allows Bible studies as part of the public school curriculum; it is never repealed; a similar referendum in Victoria failed.

1910-1920  Origins of fundamentalism, creationism in the US, and the re-emergence of the Klu Klux Klan.

1917 Russian Revolution. Separation of church and state seen as a conflict between two elements of the bourgeoisie, liberal capitalists and conservative church hierarchy. Lenin’s lieutenant Bukharin wrote  ‘the real basis for the demand [for separation] was a desire for the transfer to the bourgeoisie of the revenues allotted by the State to the Church.’ Nevertheless, the  regime separated church and state in 1918 while nationalising  the church’s capital and landed estates 1936 Bukharin wrote the Soviet constitution deliberately including a Bill of Rights to avoid the terror that followed the French Revolution. Stalin had him arrested. After a show trial in 1938 he was shot.

1921 Sinclair Lewis publishes Elmer Gantry, a satire on US revival tent religion, which separated converts from their money.

1929 Mussolini regime arranges Concordat with Vatican establishing it as a separate ‘nation’ state in Italian  territory with tax exemption 1930 Anne Lennon criticises tax exemptions for religion on her soapbox in the Sydney Domain; she is arrested. Rationalist Association of Australia appeals against her conviction and loses.

1933 Hitler’s government and the Vatican sign Concordat reviving ten per cent church taxes imposed on all German citizens.

1935 The Family, a covert American  group dedicated to realising ‘God’s will’, starts as an anti-labour alliance in Seattle. God’s ‘intention’ is the prominent rich should rule the world to meet the needs of the small; therefore, the rich have to be cultivated to become Christians to realise that intention.

1947 Everson case in the Supreme Court formalises separation of church and state in US 1948 McCollum Supreme Court case confirms separation and removes religious instruction from public schools 1948 United Nations’  International Covenant on Civil and Political Rights; religion and non-belief are characterised as being equal in status.

1949 Communist revolution in China; 1949 India adopts a secular constitution; religions, non-belief have equal status.

1949 In the US, Billy Graham commences revival meetings in circus tents.

1954 ‘Under God’ added to Pledge of Allegiance and ‘In God We Trust’ added to the currency in the US.

1959 Cuban revolution shocks America.

1960 John Kennedy, a Catholic, is elected President; 1960 the 1921 novel Elmer Gantry made into film starring Burt Lancaster 1961 John Kennedy says  ‘I believe in an America where the separation of church and state is absolute … where no church or church school is granted any public funds or political preference.’

1964 In a speech to evangelicals, Ronald Reagan says ‘You can’t endorse me ... but I can endorse you’. What he meant was that he understood that churches cannot endorse political candidates from the pulpit for fear of losing their tax-exempt status, but he identified with their values 1964 Prime Minister Robert Menzies allows some modest government funding of Catholic schools to attract the Catholic vote in Australia.

1970 District Court for District of Columbia hears Green v Connally. Finds ‘discrimination on account of race is inconsistent with an educational institution’s tax-exempt status’; integrated schools commence as does the rise of the Religious Right as a reaction to this decision 1970 in a dissenting judgment in Walz v Tax Commission of the City of New York, Justice Douglas says ‘One of the mandates of the First Amendment [of the US constitution] is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and non-believers.’

1971 National Right To Life organisation is formed in the US to combat abortion; the Catholic Church stays in the background fearful of losing its tax-exempt status.

1972 Gough Whitlam rolls over to allow government funding of religious, mainly Catholic, schools, in an attempt to win the election, which he does, narrowly. 

1975 The Age of 11 November details a Report from the Australian Anglican Church entitled The Politics of Living written by the church’s  Social Responsibilities Commission. The Report says   ‘In a truly democratic society no group may claim exclusive privileges as a right … Australia is a pluralist society, not a Christian society … an attempt to argue the church, because it is the church, has some inherent superior right to privilege is bound to backfire as it becomes clearer that Australia is and must be a secular society’; the Report disappears without a trace 1975 In a desperate attempt to attract the Catholic vote for the forthcoming election, the Labour government of New Zealand passes legislation on the last sitting day to allow government funding of religious schools; they lose  the election but the funding remains. 

1981 Defence of Government Schools High Court case, Australia, denies separation of church and state, approving government funds for religious schools;  turning point in Australian history; from that point the Catholic Church grows to become immensely wealthy.

1982 Reagan administration reverses IRS’s ban on tax-exempt status for US schools that discriminate on the basis of race.

1983 Australian Council of Churches publishes Changing Australia. Ignoring their own tax-exemptions they declare: ‘avoiding tax is theft’ and ‘when taxes are not paid, either necessary services are not provided or else other people have to pay more’; 1983 Australian High Court concludes Scientology is a religion and eligible for tax-exempt status.

1985 Canadian Supreme Court in R v Big M Drug Mart finds endorsement of Christian Sabbath a form of coercion against non-believers; implication is that freedom from religion should have same status as freedom of religion.

1987 Reflecting the huge growth of organisations seeking status as tax-exempt religions, Japanese film maker, Juzo Itami, makes The Taxing Woman Returns, a satire concerning the ardent pursuit by a determined woman tax officer of a criminal organisation laundering money through a bogus tax-exempt religion.

1992 Phillip Hall publishes Royal Fortune: Tax, Money and the Monarchy in London. Exposes monarch’s tax exemptions; after a World in Action TV program based on the book, the Queen decides to pay some income tax 1992 Japan, the Nikkei Weekly exposes a wealthy Buddhist sect running a substantial amusement park for financial gain while paying no tax. 

1993 Japanese Aum Supreme Truth cult inexplicably allowed into Australia at Perth; they buy a West Australian pastoral property and experiment with sarin gas on sheep 1995 March, tax-exempt Aum use  sarin gas to attack civilians in Tokyo subway killing twelve,  injuring thousands 1995 May, Aum pay for J. Gordon Melton, a US cult apologist, and  two others, to fly to Japan in an attempt to characterise the police investigation into them as an attack on religious freedom. The Americans leave when they realise they were set up; Aum members later convicted.

1996 Australian Commonwealth Employment Service abolished and replaced by mainly Christian agencies with lucrative contracts; dramatic increases in private, religious school funding including funding for religious chaplains in public schools.

1996 Citizens’ Initiated Referendum in Colorado concerning whether religions should pay property taxes fails after the churches jointly fund a misleading and costly television campaign against it 1996 Brazilian Internal Revenue investigation into exploitation of tax exemptions by wealthy evangelical, Edir Macedo and his Universal Kingdom church; styled on US evangelism, Macedo’s empire was then estimated to generate $US800M annually in Brazil alone with temples in 30 other countries.

1998 Government of Thailand obliged to investigate corruption and financial malpractice in Thailand’s 30,000 Buddhist temples.

1999 UK Charities Commission denies charitable tax-exempt status to Scientology 1999 the head of the Seventh Day Adventist church in the US resigns after a financial scandal, the last of a series of questionable activities.

2000 Australian Broadcasting Commission’s radio transmitter in northern Australia sold to the UK’s multi-million dollar, fundamentalist, Christian Voice. They build studios on the Sunshine Coast in Queensland and broadcast daily to the Pacific and South Asia in many languages via satellite, beaming the signal to the transmitter in northern Australia.

2001 September 11 terrorist attacks in the US.

2002 Australian prime minister  John Howard opens Hillsong Pentecostal Church in Sydney;  previously, Hillsong’s leader, Brian Houston, published his book You Need More Money: Discovering God’s Amazing Financial Plan For Your Life. Hillsong later open a church in Paris and other locations around the world.

2004 Sociologist Nikolai Mitrokhin estimates the Archbishop of the Russian Orthodox Church had used the duty-free status of the church to import $1.5B worth of cigarettes into Russia for sale to the benefit of the church.

2005 Members of Exclusive Brethren covertly spend up to a million dollars in an attempt to defeat atheist prime minister Helen Clark’s Labour Government in New Zealand at an election; when information about this leaks, she is re-elected.

2006 Libre Pensée publishes Livre Noir, explaining how the French government subsidises the Catholic Church in France, in conflict with Article 2 of the 1905 legislation stating the Republic does not subsidize any religion.

2007 US congress finance committee investigation into six televangelists on the grounds their vast wealth is an abuse of their tax-exempt status.

2008 Australian journalist Michael Bachelard publishes Behind The Exclusive Brethren, detailing the group’s close attention to tax and other government benefits and their members’ attempts to influence politics 2008 South African business magazine, FM, investigates religious wealth in the republic; finds religious sector ‘is a substantial part of the South African economy’. It is ‘opaque’ and ‘little understood’ 2008 Italian newspaper La Republica publishes a series of articles on the Vatican Bank: ‘more impenetrable than the Cayman Islands, more discreet than a Swiss Bank [the Vatican bank] is a fiscal paradise on Earth’. Reveals the bank  which is never publicly audited, accepts only untraceable cash or gold bullion as deposits, ideal for money laundering 2008 Catholic World Youth Day in Sydney; federal government subsidises the event with at least $22M. The NSW government spends in excess of $100M;  an attempt to have the federal funding declared unconstitutional is dismissed by a Catholic High Court judge as ‘vexatious’.

2009 Writing in Australian Humanist, Perkins and Gomez estimate the gross cost of religion to Australian taxpayers through exemptions, grants and other benefits to be $31B annually.

2010 The High Court of Australia, in Williams v The Commonwealth, finds federal government funding of religious chaplains in public schools to  be unconstitutional; the government prepares legislation to override the decision.

2011 New Zealand High Court rules that an interest-free mortgage scheme for members of an evangelical trust that ‘advances religion’ is not unconstitutional; taxpayers are thus divided by those that pay interest on their mortgages and a privileged few who legally pay no interest, and are subsidized by taxpayers who do pay interest.

2012 Writing in Free Inquiry, Ryan Cragun and his associates estimate US taxpayers’ subsidy to religion to be $71B annually 2012 A Chicago Muslim is charged with channelling funds to al Qaeda via an Islamic charity 2012 NZARH research finds churches in New Zealand are worth $11B; the Catholic Church is the wealthiest 2012 It is revealed the Greek Orthodox Church owns property worth 700B euros, double Greece’s national debt; the church refuses to divest any of its property to help the nation; 100,000 people join a ‘Tax The Church’ Facebook page 2012 In the second Williams v The Commonwealth High Court case, the Court finds the legislation allowing government funding of religious chaplains in public schools to be unconstitutional; the government re-routes the money through the states to continue the funding.

2013 In a public lecture, former Australian High Court  judge, Michael Kirby, says that ‘secularism is a principle by which society and its lawmakers ensure that religion does not enter the public sphere in an active way. The object of these principles is not only to stop an excessive interference of religion in the lives of the people but to ensure that people of different faiths (and those of no religious faith) can co-exist peacefully’ 2013 The Government of Cyprus confiscates 40 per cent of accounts in banks holding sums over $130,000; the Orthodox Church of Cyprus loses $130M.

2015 In its critical February judgment supportive of voluntary euthanasia, the Supreme Court of Canada rules that the Criminal Code ban on physician-assisted dying ‘infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice’ and thus violates Section 7 of the Canadian Charter of Rights and Freedoms 2015 April, Canadian Supreme Court, Quebec Secular Movement v City of Saguenay, rules unanimously that prayers in city councils are unconstitutional. Justice Clèment Gascon says state neutrality ‘requires that the state neither favour nor hinder any particular [religious] belief, and the same holds true for non-belief. It requires that the state abstain from taking any position and thus avoid adhering to a particular belief’ 2015 May, a New Zealand parent, Jeff McClintock, takes his daughter’s school, and the NZ Attorney-General, to the High Court to argue that religious instruction in public schools is a breach of New Zealand’s Bill of Rights.

 


 

Consider the following:

Offcuts from T. David Gordon ‘The Decline of Christianity in the West? A Contrarian View’, Ordained Servant Online, May 2007. Full paper at http://www.opc.org/os.html?article_id=44.

Gordon is an American Presbyterian.

Key quotes in bold

Indeed, if there is any real evidence of the decline of Christianity in the West, the evidence resides precisely in the eagerness of so many professing Christians to employ the state to advance the Christian religion. That is, if Ellul's theory is right, the evidence of the decline of Christianity resides not in the presence of other religions (including secularism) in our culture, but in the Judge Moores, the hand-wringing over "under God" in the pledge of allegiance, and the whining about the "war on Christmas." If professing Christians believe our religion is advanced by the power of the state rather than by the power of the Spirit, by coercion rather than by example and moral suasion, then perhaps Christianity is indeed in decline. If we can no longer say, with the apostle Paul, "the weapons of our warfare are not fleshly," then perhaps Christianity is indeed in significant decline. If we believe we need Christian presidents, legislators, and judges in order for our faith to advance, then we ourselves no longer believe in Christianity, and it has declined. Christianity does not rise or fall on the basis of governmental activity; it rises or falls on the basis of true ecclesiastical activity. What Christianity needs is competent ministers, not Christian judges, legislators, or executive officers.

The apostle Paul was apparently quite content with the Roman magistrate not being a Christian believer. He encouraged the believers at Rome to submit to such a magistrate, in part because even he, without the light of the law of Moses or the teaching of Christ, would be a "terror to evil conduct," and as such, was a "minister of God for your good" (Rom. 13:3-4). All Paul appealed to the magistrate for were his rights as a Roman citizen; he never asked for any special dispensation as a Christian (Acts 25:11, 28:19).

As American Christians, thinking about these matters in the early twenty-first century, we would do well to remember the American Christians during the time of the founding of our Republic, who only desired from the state the protections other citizens had, nothing more nor less. The only relation between state and church desired by these founders was one of toleration and equal protection; that the state would permit the free assembly of peaceable citizens for either religious or non-religious purposes, and would permit, in this sense, the free exercise of religion. The relation of state and church, as conceived by the Continental Congress, was minimal. This minimalist approach has met with two hostile reactions since the sixties: often the hostility takes on the form of denial, and on other occasions the form of disapproval.

The deniers continue to argue that ours was/is a "Christian nation," without citing any convincing historical evidence. Sometimes this is done by confusing the theocratic Massachusetts Bay Colony with the Republic as a whole, and sometimes this denial takes the form of quotations of individuals associated with the founding (e.g. John Witherspoon) who professed Christian faith. Neither of these will survive critical inspection, however. Massachusetts, for instance, was but one of the thirteen colonies eventually represented at the Continental Congress. William Penn's religiously free Pennsylvania was also there, and was given the same enfranchisement as Massachusetts. Since Pennsylvania was practically founded as a refuge for religious dissidents, one can be sure that its representatives would have approved of no theocracy, and of no establishment. Similarly, quoting individuals such as Witherspoon does not prove that ours was a Christian republic; it merely proves that Witherspoon was a professing Christian. I am a professing Christian also, but I am writing with all the zeal I can muster against the idea of establishment or theocracy. I am a professing Christian and a professing anti-Constantinian, and therefore my profession of faith does not imply that I am Constantinian.

Perhaps the language of "Christian nation" is itself confusing, and should disappear altogether, to be replaced by a choice of two expressions: "Christian republic" and "Christian culture." These terms would bring clarity to the discussion, because I, for instance, would have little objection with saying that late-eighteenth-century America was, largely speaking, a Christian culture. It was a culture influenced not only by the Constantinian West in general, but by Anglican and Puritan England in particular, and among its major intellectual influences (though by no means restricted to it) was Christendom. Its other major intellectual influences were both distant and recent: Athens and the Scottish Enlightenment. Thus, it was a culture that was "Christian" in the sense that the prevailing choice of religious people was Christianity, and in the sense that all members of the culture were familiar with the basic truth-claims and ethical principles associated with it.

This "Christian culture," however, was self-consciously not a Christian republic. The framers appear to have gone out of their way to exclude any explicitly Christian sentiments in the documents themselves. Students of the Constitution, for instance, have found many phrases and clauses that are borrowed, word for word, from David Hume and John Locke, and the conceptual indebtedness to the British Enlightenment is greater still.[5] Yet there are no similar phrases from the Christian Scriptures or creeds. Considering the profound literary influence the Bible had on the colonies, it is a rather remarkable historical fact that a few biblical phrases did not leak into the document accidentally. The framers were careful to protect religion's free exercise, but they were equally careful to avoid establishment.[6]

Some do not deny the minimal relation between state and church in the early Republic, but they nevertheless disapprove it, and dismiss it as an undesirable concession to secularists such as Thomas Jefferson. This theory is plausible, in the general sense that the founding documents required a great deal of compromise among the colonies, not the least of which touched upon slavery. But it is only plausible, and not historically accurate. The opponents of establishment were as often religious as irreligious. Some, such as the Baptist Roger Williams, or Pennsylvania's William Penn, are well-known. Others are less so, and I'd like to mention the example of American Presbyterians in the early pre-republic, not only because their history is less well-known, but because our institution, Grove City College, has historically been associated with American Presbyterianism.

Mr. Jefferson believed the separation of church and state produced a better state; Hanover Presbytery, following their northern Presbyterian colleagues in 1729, thought it produced both a better state and a better church.[18] American Presbyterians, therefore, joined other religious and secular individuals in separating church and state. Such separation cannot be dismissed as a secularist movement alone, since the arguments were also religious.

Contemporary Constantinians conveniently overlook the religious arguments, and often dismiss the separation of church and state as incipiently secularist, but the arguments and actions of Presbyterians in the eighteenth century (and their nineteenth-century commentators) refute such ideas starkly. Presbyterians before and during the early Republic argued on scriptural and theological grounds for the complete separation of church and state. They frequently cited Jesus' dictum that "my kingdom is not of this world," quoting his statement to "render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's." They cited the apostle Paul's insistence that "our citizenship is in heaven," and argued that the only service that pleases God is that which is freely offered from the conscience. If contemporary Constantinians wish to disagree, they have every right in a free society to do so; but they are not free to ignore history, nor are they free from the obligation to counter theological reasons with theological reasons, and scriptural argumentation with scriptural argumentation.

 

A Naked Public Square?

Few misunderstandings are more common than the notion that separation of church and state implies a "naked public square." Separating the institutions of church and state does not, in and of itself, have any consequences at all for the public square. Individuals in a free society may speak their mind on all issues of public consequence, and may promote their views by any arguments they choose. Abraham Lincoln was perfectly free to saturate his Second Inaugural Address with biblical themes and quotations. Dr. King was entirely free to address public policy with the teachings of Holy Scripture, including such well-known Christian ethical principles as the Golden Rule. Such reasoning may well fall on deaf ears, of course: Why should individuals who do not acknowledge the Christian scriptures as a source of moral or religious truth be persuaded by appeals to them? But in a free society, we are free to articulate unconvincing as well as convincing arguments, prudent as well as imprudent reasoning, and ineffective as well as effective rationales. My own opinion is that religious reasoning is not very effective in persuading individuals in a post-modern culture, but such talk is entirely permissible in a culture that separates church and state.

Whither Christianity in America?

As I mentioned earlier, I believe that if Christianity is waning in America, it is not because there are secular people in America, or people of other religious persuasions, since such individuals have always constituted a substantial portion of our culture. If Christianity is waning, the evidence of such decline is that religious people themselves have lost confidence in God's ability to promote his worship without the coercive power of the state. If religious people themselves prefer Caesar's sword to the sword of the Spirit; if religious people disbelieve in the power of the Christian gospel to compete on a level playing field; if religious people no longer believe that Christ's example and words have the power to attract people to him, then perhaps Christianity is indeed in decline. But the decline has nothing to do with an assault from without, and everything to do with unbelief from within.

There has been some decline in culture religion in the United States over the last two centuries. A secularist such as Thomas Jefferson knew the tenets of Christianity, was familiar with the Bible, and understood the influence of each on the culture, and appealed to such influence when it suited his purposes. Secularists in the early twenty-first century may be less familiar with Christianity or the Christian scriptures than Jefferson, and may be more thin-skinned about appeals to them in the public square. But true Christianity still exists in the churches; and, more importantly, where it may be in decline it is almost never due to persecuting pressure from without, but to weak faith from within. My greatest fear is not the decline of culture religion, since the presence or absence of such culture religion strikes me as having almost nothing to do with the vitality of true Christian faith and practice anyway. My fear is that those who fear the decline will resort to employing the coercive power of the state to rescue and/or preserve culture religion; a resort that will, in my estimation, damage the evangelistic cause of true Christianity profoundly.

This article was originally presented as a paper at "The De-Christianization of Europe: From Nicaea to Nietzsche," a conference sponsored by the Center for Vision and Values of Grove City College, on April 12-13, 2007.

 

Array

Our theme today, as I understand it, is: ‘what are we going to do to advance secularism in Australia?’ The main problem is the same as it has ever been: there is no constitutional separation of church and state in Australia, either federally or within the states. This means government can fund and privilege religion as it sees fit. That qualifies Australia as a soft theocracy rather than a secular democracy.

Michael Gawenda’s comment in The Age (June 26, 2008) that “there is no constitutional separation of church and state in Australia” was the first time those words have appeared in any Australian newspaper under the by-line of a respected commentator. The former editor-in-chief of The Age could draw this conclusion as he had been reporting from the US for many years as a political correspondent. Living among American political culture and looking back at Australia from that standpoint, he could see what nearly every other Australian journalist or political commentator has failed to see.