Rationalist Society of Australia

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Religion, the State and the Law


Church and the LawCHURCH leaders have often expressed views on matters that many people would regard as ‘political’, that is, as matter of public policy and not church doctrine. There is nothing wrong with this as a general principle, of course, and members of the church may find those comments helpful in forming their own view on what should be the policy on particular issues.

A problem arises when church leaders intervene directly in a matter of state
A problem arises, however, when church leaders intervene directly in a matter of state, for example when a church leader specifically directs church members who are politicians on how they should vote on an issue in the public arena of parliament; or when the church intervenes in litigation between private individuals by seeking intervener status to put its own arguments about the law.

An example arose in Australia last month1)This presentation was made in June 2006. According to a press report on 28 May, Cardinal Pell, the Roman Catholic Archbishop of Sydney, said that Roman Catholic politicians who vote in favour of liberalising the law on abortion should no longer identify themselves as Catholics or go to communion. A federal Roman Catholic politician, the Honourable Christopher Pyne, was quoted in the same article as saying that he would follow Cardinal Pell’s advice on matters of faith and church doctrine: ‘If, in [the Cardinal’s] opinion, a Catholic who votes for abortion cannot call themselves a Catholic, I would be prepared to take his advice.’ The Honourable Julian McGauran seemed to agree, saying that ‘On issues of life, the church is unequivocal, from left-wing to conservative Catholics’. In contrast, Mr John Murphy, a Roman Catholic Member of the House of Representatives, was  reported as saying: ‘How I vote in Parliament is a matter of conscience and it has nothing to do with the Catholic Church’.

If we focus on what Cardinal  Pell reportedly said, it would seem that in his view the Roman Catholic Church is entitled to specifically direct its members who are politicians on how to vote on particular issues.

 Pell: the Roman Catholic Church is entitled to … direct … politicians on how to vote
This is surely a contravention of  the long accepted separation of the church and the state. Indeed, even Cardinal Pell seems to have some misgivings about meddling in the political arena as he is quoted in the same article as saying ‘he had to be careful not to be politically partisan ‘. What that could mean given his other comments is anyone’s guess!

However, if Cardinal Pell does believe that the Roman Catholic Church can direct its members who are politicians on how to vote on particular issues, that contravenes not only the protocol in civil society on the separation of church and state. It is also inconsistent with the recent statement by Cardinal Pell’s own leader, Pope Benedict XVI, in the Pope’s most recent Encyclical Letter.2)Encyclical Letter, Deus Caritas Est, 25 Dec 2005 The Pope said that:

Catholic social doctrine has its place: it has no intention of giving the Church power over the State. Even less is it an attempt to impose on those who do not share the faith ways of thinking and modes of conduct proper to faith … A just society must be the achievement of politics , not of the Church …3)Rowbotham , J; Sita, N, ‘Church can’t do state’s work: Pope’, The Australian  26 January 2006 

When this Encyclical Letter was first published, Dr Paul Collins, a historian and former priest, reportedly praised its message as a return to mainstream Catholic thinking. He said that ‘the material about not replacing the state and not directly participating in politics is particularly good and is also in a way a veiled attack on movements such as the Right to Life, which impose what they see as a Catholic theology on the state’.

On  the  other  hand, one should note the  Pope’s reservations. He states, in the passage quoted, that the church ‘has no intention of giving the Church power over the State’, and that ‘Catholic social doctrine  … [should not] attempt to impose [its views] on those who do not share the faith …’. However, he also says that the Church should ‘help purify reason'; help free reason ‘of the danger of a certain ethical blindness caused by the dazzling effect of power and special interests'; and ‘help form consciences in political life’.

This is fine for Roman Catholics and perhaps on the basis of the last section, even Mr Murphy, who said that he would vote according to his conscience, would end up following the church doctrine. For Roman Catholics one might say that is as it should be. Members of Parliament should always vote according to their conscience on matters such as this. A parliamentary vote is not a plebiscite. If that were so, Parliament would have to re-introduce capital punishment, for which opinion polls continually show majority support across the whole electorate. And, although many votes are made on party lines, issues like the liberalisation of abortion law are quite properly left to a conscience vote.

However, even for Roman Catholics, what is questionable about Cardinal Pell’s statement is that he makes no mention of individual politicians developing their own conscience in the light of church doctrine. He states directly how they should vote. He apparently expects them to respond like the Honourable Christopher Pyne and say that they will take Cardinal Pell’s advice and vote accordingly on the basis that otherwise ‘they cannot continue to call themselves a Catholic’. If Cardinal Pell had considered Mr Murphy’s response (that his vote should depend on his own conscience and ‘that it has nothing to do with the Catholic Church’), then he showed no sign of it in the reported comments.

One may ask, of course, whether it will ultimately make any difference whether Roman Catholic politicians follow a specific direction from the church or follow their own conscience. Conscience is ‘formed’ from many sources and may be contextual. The church may prohibit abortion in all circumstances but even a member of the church may, in conscience, believe that abortion is justified where the mother’s life or health is at risk or the baby will be born with a very severe disorder, especially one that causes death soon after birth. Taking away the politician’s right to reach a decision on the basis of his or her own conscience, taking into account a range of factors, prevents any individual consideration of the complexity of an issue.

more problematic is the church’s attempt to direct what the law should be for people who are not members of the church
But even more problematic is the church’s attempt to direct what the law should be for people who are not members of the church. What moral authority does a church have to impose its doctrine on people who do not share its beliefs? At most, the authority of church leaders is an authority to speak for its own members and even that has been questioned. Professor Tony Coady, a philosopher based at the University of Melbourne, said in relation to his fellow Roman Catholics:

What evidence there is suggests Australian Catholics are nowadays no different from other citizens in their attitudes to [reproductive technology], and the same is likely to be true about controversial issues, such as lesbian access to it.4)Coady, CAJ,  ‘Religious  meddling:  A comment on  Skene and  Parker’  (2002)  28(4) Journal  of Medical  Ethics  221

The problem is even more troubling when church leaders speak on issues of more general concern than ‘life and death’ (on those issues, at least the church has long­ standing doctrine). But, as Professor Coady asks, what authority do church leaders have to move from religious principles that are part of their shared faith to ‘detailed injunctions about political, scientific, professional or other social issues. .. that are legitimately open to debate and decision amongst the laity and indeed people of good will of various persuasions’? On this view, the Catholic, Anglican and Uniting churches are acting outside their legitimate role in speaking publicly against the federal government ‘s recent policies on industrial relations and anti-terror legislation. Those issues should be left to politics and not the church.

Another instance of church intervention in matters of state is a recent trend for the Roman Catholic Church to seek intervener  status in private  litigation  in order to influence the development of the law in contentious areas like abortion or access by single women to assisted reproductive technology.

In the New South Wales abortion case CES v Superclinics5)The appeal was first heard on 15 April 1996: S11perclinics Australia Pty Ltd v CES & Ors S14111995. The Australian Episcopal Conference and the Australian Catholic  Health Care Association  sought leave to appear as amici curiae on l 1 Sept 1996. Ultimately, the appeal did not proceed the Roman Catholic Church was granted amicus curiae (friend of the court) status in a proposed appeal to the High Court. The case arose from a woman’s claim for damages against a medical clinic because its employee doctors failed to diagnose that she was pregnant after a number of consultations and two pregnancy tests. She said that the doctors had been negligent and that, because of the delayed diagnosis of pregnancy,  she had been deprived of the opportunity to have the pregnancy terminated.

In another case, McBain v State of Victoria,13 Dr McBain, a specialist in assisted reproductive technology (ART) successfully challenged the legislative ban on single women gaining access to ART programs  in  Victoria. He argued that the Infertility Treatment  Act 1995 (Vic) which  limited ART to married or stable de facto heterosexual couples was inoperative because it was inconsistent with the federal Sex Discrimination Act 1984. The Roman Catholic Church applied for and was granted amicus curiae status in the federal Court and Justice Sundberg devoted a large part of his judgment to ‘Submissions of the Roman Catholic Church’ (he rejected all of the Church’s arguments). Later, the Church applied to the High Court for an order to review Justice Sundberg’s decision; and leave was granted for the case to be heard by the Full Court of the High Court of Australia but the appeal did not proceed.

A church might gain a considerable advantage in promoting its own doctrine by appearing in a case such as this, especially at appellate level, because the final judgment in the case forms part of the common law and is likely to be followed in later cases. However, the addition of extra parties adds to the time needed for argument and the ultimate cost of the case and one must question whether it is fair for the individual litigants to be saddled with these burdens because of the nature of the litigation.

In sum, the Roman Catholic Church has acted wrongly in intervening directly in matters of state
In summary, I have argued that the Roman Catholic Church has acted wrongly in intervening directly in matters of state, both by directing federal politicians on how they should vote on a particular issue in Parliament , and in intervening in private litigation between third parties who have nothing to do with the church.

The proper role of the church and its leaders is to provide advice to members of the church on the doctrine of the church and its implications, which may include how the doctrine might be applied when making decisions on issues like abortion and access to assisted reproductive technology by single women. But even members of the church should then be left to decide according to their own conscience and the church has no moral authority to dictate to non-members how they should decide on such difficult moral issues.

This article was first presented at the “Separating Church and State” national conference, June 2006, organised by the Australian National Secular Society, the Rationalist Society of Australia, and the Council of Australian Humanist Societies.


Loane SkeneProfessor Loane Skene LLD (UMelb), LLM (Mon), LLB (Hons) (UMelb)

Professor Skene is a Professor of Law in the Faculty of Law and an Adjunct Professor in the Faculty of Medicine Dentistry and Health Sciences at the University of Melbourne. She is a member of the NHMRC Legislation Review Committee on Human Cloning and Embryo Research (the Heerey Committee); the Australian Health Ethics Committee, one of the principal Committees of the National Health and Medical Research Council; and the Australian Workforce Advisory Council. She has served on numerous federal and state advisory committees, especially in relation to genetics and the law. In 2005, she was Deputy Chair of the Lockhart Committee on Human Cloning and Embryo Research and became principal spokesperson for the Committee after the sudden death of the Chair, the late Justice Lockhart AO, in January 2006.

She is the author of two books on medical law (including the widely used text, Law and Medical Practice, 1st ed Butterworths, Sydney, 1998; 2nd ed LexisNexis, Sydney, 2004; 3rd ed, LexisNexis, Sydney, 2008); and numerous chapters in books and articles in Australian and overseas legal, medical and scientific journals. In 2003, she was awarded a Centenary Medal for 'Service to Australian Society through the Exploration of Legal and Ethical Issues of Health Care'.

References   [ + ]

1. This presentation was made in June 2006
2. Encyclical Letter, Deus Caritas Est, 25 Dec 2005
3. Rowbotham , J; Sita, N, ‘Church can’t do state’s work: Pope’, The Australian  26 January 2006
4. Coady, CAJ,  ‘Religious  meddling:  A comment on  Skene and  Parker’  (2002)  28(4) Journal  of Medical  Ethics  221
5. The appeal was first heard on 15 April 1996: S11perclinics Australia Pty Ltd v CES & Ors S14111995. The Australian Episcopal Conference and the Australian Catholic  Health Care Association  sought leave to appear as amici curiae on l 1 Sept 1996. Ultimately, the appeal did not proceed

Same difference? A comparison of the ‘Establishment Clause’ in the Australian and United States constitutions

This article was first presented by Professor Helen Irving at the “Separating Church and State: Keeping God out of Government” national conference in Melbourne, June 2006. The conference was organised by the Australian National Secular Alliance, the Council of Australian Humanist Societies and the Rationalist Society of Australia.

THE First Amendment of the United States Constitution is best known for its protection of free speech, but it actually begins with two statements about the place of religion in American law.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …

In Article VI – that is, in the core of the Constitution – the  United States Constitution also states that ‘no religious test shall ever be required as a qualification to any office or public trust under the United States’.

The Australian Constitution includes a provision that combines these two, and is almost identical in its wording:

Section 116. 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 provision, as we see, not only follows the American, it also adds a prohibition against any Commonwealth law that imposes religious observance. In the words of Australia’s Chief Justice John Latham, in 1943, it thus ‘proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion’.

The similarity between the Australian and the United States constitutional provisions is not accidental. Australians in the 19th century were highly conscious of the history of religious conflict, of sectarianism, and religious oppression. The Australian context was a little different from America, where the experience of the persecution of minority religious sects had been directly relevant to the original founding, and where religious freedom, as a consequence, was already protected in several of the state constitutions, even prior to the break from Britain (some constitutions, however, included religious tests for public office). In Australia, it was sectarianism – conflict between Protestants and Catholics – that raised concerns, and provided the historical background for the framers of Australia’s Constitution.

By the time of Australia’s constitution-making in the 1890s, most of the Australian colonies had faced the sectarian issue, and in particular focused questions of state financial aid to schools. From the 1870s, when the colonial parliaments began to pass laws for compulsory education, the decision was taken in most colonies to refuse financial aid to religious or parochial schools. At the same time, state schools – free and open to all children – were to be secular.

This commitment to secularism was not necessarily high-minded or noble, any more than the American framers’ commitment to free religious exercise necessarily  was.  But, unlike in the United Kingdom where the Church of England was established, it represented a particular notion of the sphere of government that was shared more with America than with England. Church and state, the Americans and the Australians believed, belonged to separate spheres – to God and Caesar, to the private and the public. Religion was a matter of private conscience and government was a matter of public office.

In the United States, the so-called ‘wall of separation’, a term used first by Thomas Jefferson, describes the distinction  between religion and government.  This — despite everything we might think we know about American religiosity, tele-evangelists, and Presidents who proclaim that Jesus is their favourite philosopher — is still an article of faith of popular constitutionalism in the US. It is true, as many have noted, that the wall of separation is not as absolute as it once was, and expressions of concern about its erosion are growing. But, as I will explain shortly, the constitutional interpretation of the ‘establishment clause’ is still much more stringent in America than the equivalent in Australia.

Culturally, while many more Americans are openly religious than Australians, there are still surprising manifestations of official secularism. For example, America has a relative absence of public holidays for religious festivals. Christmas Day alone is a holiday. Americans work on Good Friday and Easter Monday, as they do on Passover, Ramadan, and all the rest. Instead, they celebrate a host of historical events in their public holiday calendar – Independence Day, Memorial Day, Veterans Day, Thanksgiving, Washington’s Birthday, Labor Day, Martin Luther King’s Birthday, and more – compared to Australia’s three or so historical national holidays.

One can say, with some qualifications, that there is a constitutional separation of church and state in the United States. But, despite having the same words in our Constitution, can we say the same about Australia?

The answer is complex. The simple answer is this: if we consider the constitutional position, Australia does have a separation of church and state. However, this has not been properly recognised, either by the High Court or by government, as it has in the United States. We see this in a comparative examination of the constitutional law surrounding the American establishment clause and Australia’s section 116. My view is that the Australian High Court has effectively got it wrong when it comes to interpreting the Constitution, from an originalist perspective , that is to say, if you think the Constitution should mean what the framers or founders wanted it to mean, then the High Court has been mistaken in its interpretation of this section. However, if you think that the Constitution should mean what we – the Australian people of today, and not our forefathers – want it to mean, then the answer is much more complex. But, here, I think the answer has also shifted in the last while.

A couple of  years ago, I wrote  about what I saw as a worrying trend in Australian government: the increasingly open identification of senior members of government with religious organisations, and their declarations about the foundation of Australian law. The Treasurer, Peter Costello for example1)This article was presented in 2006, placed his religious speeches on his Treasurer ‘s website; and among other things, he made claims that Australia’s law was based on the Ten Commandments. The Prime Minister openly supported religious initiatives like the National Day of Thanksgiving, and declared Australia to be a Judeo-Christian country. In 2001, he appointed an archbishop of the Anglican Church as Governor­ General; he publicly expressed support for religious leaders, including on occasions when their conduct was controversial, even potentially subject to legal proceedings.

All of these actions, I believe, were contrary to the spirit of the constitution – although not, I stress, unconstitutional in a legal sense. This is because the Australian Constitution prohibits the making of laws for religion, and does not constrain executive conduct or pronouncements. Such conduct would not be unconstitutional in the United States either, but they would be considered constitutionally inappropriate, because the constitution there is understood as much more than merely the black letter words on the page. For good or evil, it has a larger life in America than here, and the separation of church and state in spirit as well as law, de facto as well as de jure, is taken seriously.

Since the time I wrote my piece, however, a small shift is discernible. It may be significant. I don’t imagine that Mr Costello or Mr Howard or other religious members of government have changed their beliefs, but they have at least had the opportunity to reflect on the value of secularism. Notably, both the Prime Minister and the Treasurer, having declared in the past that Australia was a religious country, recently stated that Australia is a secular country. Have they been reading the constitution, and finally got up to section 116? I doubt it. The context was, of course, a rejection of statements by Australian Islamic clerics publicly promoting their religion and defending sharia law, in part as a defence against the many attacks to which it has been subjected in recent times. ln an interview in February this year, Costello said: ‘l think we can offer a tolerant Australia which respects the rights and liberties of all as long as we’ve got agreement on a few key points. One is a secular  state.’

So, Australia is a secular country. I agree with the Treasurer. The framers of Australia’s Constitution intended Australia to be secular. They intended to erect a ‘wall of separation’ between church and state, following the United States example. They copied the United States Constitution in this respect, word for word. They incorporated an extended prohibition on establishing an official religion; and included a protection of freedom of religious conscience.

However, contrary to this intention, the High Court of Australia has interpreted the constitutional provision in such a way as virtually to deplete it of meaning. Unlike in the United States, we don’t have a great deal of case law in Australia concerning this section of the Constitution. Among the three or four section 116 cases that have come before the High Court, one alone has dealt with the prohibition on the establishment of religion. This is the Defence of Government Schools (DOGS) case of 1981 – in which the High Court, reaching a diametrically opposed conclusion from the position taken in the United States at the time – found that government funding of religious school was not unconstitutional. I will come to this shortly.

First,I turn to the framers of the Australian Constitution. They wrote the section prohibiting the establishment of a religion and protecting religious worship or absence of religion. Since the Constitution was written over many years, painstakingly, with close attention to, and much debate about each section, we can assume that they meant something by it.

In tracing the provenance and evolution of this provision in the Federal Conventions, we need to note that section 116 was incorporated into the Constitution in two phases:at the first Federal Convention in 1891 and at the second in  1897-98. It was finally included at the second Federal Convention, that is, the Convention where the Constitution was completed, prior to being approved both at a referendum by the Australian people, and in the colonial parliaments, and then enacted by the Imperial Parliament.

The section was adopted following the Convention’s decision to include certain words in the Constitution’s preamble that are entirely absent from the United States Constitution. These words are: ‘humbly relying on the blessing of Almighty God’. The Constitution ‘s preamble states that the people of the Australian colonies have agreed to unite in one indissoluble federal Commonwealth ‘humbly relying on the blessing of Almighty God’. It is sometimes suggested that section 116 was only included because the Convention had agreed to this statement of pious hope, and that some feared at the time that this might lead to an association between the new Commonwealth of Australia and an official religion.

It is true that section 116 was finally adopted at the second Convention, following the decision to include these words in the preamble. However, the anti-establishment provision had been proposed at the first Federal Convention, in 1891, and adopted in the first draft of the Constitution. It was not, in other words, merely a provision for mitigating the effect of recognising God in the preamble.

The words in the preamble were moved at the first session of the second Convention, at Adelaide in 1897, by one of the few Catholic delegates at the Federal Convention, Patrick Glynn from South Australia. Glynn spoke to his motion very movingly; importantly, for our understanding of what the framers of the Constitution intended, he spoke in an ecumenical spirit, not only with regard to Christian denominations, but regarding all religions. He, and the supporters of his motion, emphasised that it was intended to speak to all religious persons, and to be expressive of hope rather than substantive practice or law.

However, even with such a reassurance, the proposition to incorporate a reference to God in the preamble was defeated when it was first moved. The arguments against such a reference were equally powerful.

Note, in particular, the words of Edmund Barton, leader of the Convention, first Prime Minister, and one of the first Justices of the High Court of Australia. Barton was a socially conservative and religious man. Yet he was firmly of the view that there was a conceptual distinction between religion and politics:

The whole mode of government, the whole province of the State, is secular … In these colonies, where State aid to religion has long been abolished, this line of demarcation is most definitely observed, and there is no justification for inserting into your secular documents of State provisions or expressions which refer to matters best dealt with by the churches.

The motion to insert a reference to God in the preamble was initially defeated, but it was proposed again at a later session of the Convention. This followed a barrage of petitions from churches and religious organisations asking for a recognition of God in the Constitution, as well as many similar motions coming from the colonial legislatures.

Patrick Glynn again moved the motion, emphasising that the words were not intended to be specifically denominational: ‘The words I wish to insert are simple and unsectarian. They are expressive of our ultimate hope of the final end of all our aspirations, of the great elemental truth upon which all our creeds are based, and towards which the lines of our faiths converge.’ One supporter, John Quick of Victoria, added that ‘these words could be subscribed to not only by Roman Catholics and Protestants, but also by Jews, Gentiles, and even by Mahomedans.’ Therefore, although this does not dispose of the claim that Australian law is based in religion, it does challenge claims like those of the Treasurer, that it is based specifically in the Christian religion.

Edmund Barton again opposed the motion, reminding the Convention of the danger, as he saw it, that such words might serve sources of power, as authorising religious laws by the Commonwealth. But the motion this time was successful. Its passage led quickly to a proposal by Victorian delegate, Henry Higgins, to include the provision which is now section 116.

Higgins, a committed secularist and a public campaigner against compulsory religious education in state schools, was suspicious of the motives of those who proposed the words in the preamble. Their motives, he believed, were political. They aimed at religious laws, and effectively sought the entrenchment of laws supporting Christian worship. He was adamant that such a section was needed as a protection against both religious intolerance, and against government interference in matters which concerned individual, private affairs.

Barton was more circumspect with respect to the proposed section 116. He worried, he said, about ‘loading’ the Constitution with prohibitions against dangers that were ‘practically non-existent’. He reminded them that the 1891 version of this section constrained the states, prohibiting the states from passing  religious laws, and that it had been dropped at the start of the Second Convention because the delegates were convinced that, even if the states were free to establish a religion, they never would. This was in keeping with the Australian framers’ general opposition to erecting constitutional barriers against what they regarded to be imaginary dangers.

‘If I thought,’ said Barton, ‘there was any, the least, probability or possibility, taking into consideration the advancement of liberal and tolerant ideas that is constantly going on [of interference in religion] … I might be [for the motion]’. But if, he continued:

as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced; if we have no fear of a recurrence of [religious persecution] … then I do suggest that in framing a Constitution for the Commonwealth of Australia, which we expect to make at least as enlightened, and which we expect to be administered with as much intellectuality as any of the other Constitutions, we are not going to entertain fears in respect of the Commonwealth which we will not attempt to entertain with respect to any one of the states.

George Reid, Premier of New South Wales, then put it to Barton: ‘I suppose that [public] money could not be paid to any church under this Constitution?’ And Barton replied, ‘No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.’

Other delegates were not, however, so sanguine. Bernhard Wise of NSW warned against the possibility of a recrudescence of religious persecution:

What I fear is that we have not yet any sufficient security against a revival of the feeling which has existed for centuries … [and) which I believe, still exists in the hearts of hundreds and thousands of men only waiting for an opportunity to assert itself.

If we put in Mr Higgins’ amendment we shall remove those fears and establish a sound principle, and … commend the Constitution to a very large number of those who at present are doubtful as to its effects.

Here, he also drew attention to the large number of signatures on petitions received by the Convention since the adoption of the recognition of God in the constitution’s preamble opposing their inclusion.

The debate concluded with the adoption of section 116 by a majority of 25 to 16. It is important not to suggest that the delegates had a single or uniform position on this question. Some favoured the provision because they feared the revival of religious persecution. Others voted against the provision because they believed that such a fear was unfounded, even outrageous. Some supported the provision because they thought it inappropriate for the new nation to contemplate laws that made a show of its faith; others opposed it because they feared it would prevent the Commonwealth from passing laws prohibiting barbaric religious practices (like the Hindu suttee). But none of the delegates who supported the religious reference in the preamble or who opposed section 116 did so because they openly wanted an established church or favoured laws mandating religious practice or observance. No one among them said, as our Treasurer has done, that Australia ‘s law was founded on the Ten Commandments. Those who wanted a religious reference spoke of their desire to elevate the spirit behind their work – not of any intention to encourage or even permit state support for religious practice or worship.

Whatever their particular motives, it is clear that the framers of Australia’s Constitution did not contemplate the mingling of church and state. In taking this position they drew much, both positively and negatively, from the United States constitutional example. From there, however, Australia has largely departed from this example.

It is one thing to prohibit the establishment of a religion, it is another thing to know exactly what laws establishing a religion might look like. Let us look first at the American view.

The First Amendment establishment clause was not originally held to rule out a range of things that would be prohibited today, for example, the proclamation of a national day of prayer and thanksgiving. President Washington made such a proclamation soon after the constitution had taken effect. Federal funds were allocated to pay a chaplain to serve Congress. In the 1890s, the Supreme Court was to declare that the United States was a Christian nation, and to make exceptions in labour laws for Christian ministers, or to permit state religiously-motivated laws, such as the Illinois law that forced the Chicago World Fair to close on Sundays. The Australians were well aware of this example and debated it at length.

lt was not until the mid-20th century that cases concerning the Establishment Clause really started to come before the United States Supreme Court (we should note that none of the provisions of the Bill of Rights received much attention before in the 19th century, even indeed well into the 20th). In 1947, in Everson v Board of Education, the Supreme Court stated that the establishment clause meant that:

neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither … can, openly or secretly, participate in the affairs of any religious organisations or groups and vice versa.

ln the 1960s, a ‘deluge’ of challenges began, and the Supreme Court started to apply a so-called ‘strict separationist’ approach to interpreting the establishment clause. It developed the so-called ‘Lemon’ test, named from the leading case in 1971, under which a law would be unconstitutional if its ‘purpose’ or ‘principal or primary effect’ was  to promote religion, or if it promoted excessive ‘entanglement’ between church and state.

The case, Lemon v Kurtzman, concerned laws in Pennsylvania and Rhode Island that, respectively, gave financial support for teaching secular subjects, and paid salary supplements to teachers in private schools. These funds, although designated for secular purposes, were held to foster an ‘excessive entanglement’ between state and religion, because ‘continuing state surveillance’ would be necessary to enforce the specific provisions of the law, including the requirement that the funds be used for secular purposes.

Under the Lemon test, a range of state laws were struck down, including a Kentucky law requiring the display of the Ten Commandments on the wall of public school classrooms. The ‘high tide’ of this approach came in the mid- 1980s, when a ‘moment of silence’ for meditation or voluntary prayer at the  start  of  the  school  day was a regarded as a law manifesting the ‘purpose’ of promoting  religion.

Our main concern here, in terms of an Australian comparison, is the question of public funding for religious schools. Public benefits,  including indirect funding and tax exemptions for religious organisations, have historically been common in the United States and have been tolerated by the Supreme Court. But the big and highly controversial issue was direct funding, specifically to religious (parochial) schools. Numerous state programs of financial support for parochial schools have been struck down in the United States.

It was during this strict separationist period that the one Australian case on the establishment clause of section 116 was heard – the DOGS case. In a ‘relator’ case (ex rel), that is, acting with the support of the Attorney-General of Victoria, the DOGS association brought a challenge against Commonwealth funding for private schools, the majority of which are religious schools, on the grounds that it was prohibited  by the Constitution. The case drew heavily on United States examples. With one dissent, however, the High Court dismissed this challenge. The majority held that ‘establishment’ of a religion, in the words of Justice Wilson, ‘involves the deliberate selection of one [church] to be preferred from among others, resulting in a reciprocal relationship between church and state which confers and imposes rights and duties upon both parties.’ By establishment, (then) Justice Mason added, ‘the concession to one church of favours, titles and advantages must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution.’

Chief Justice Barwick balanced his particular conclusion on the head of a pin; he drew attention to the difference in language between the United States and the Australian establishment clauses. The former says ‘respecting’ a religion, and the latter says ‘for’ a religion. The word ‘for’ in the opinion of the Chief Justice, set down a much narrower, more stringent test for violation of the provision: in the Australian case, the establishment of a religion must be the purpose or single objective of the law – a law for establishing – whereas ‘respecting’ does not require a single purpose. ‘In my opinion’, Barwick said, ‘a law which establishes a religion will inevitably do so expressly and directly and not, as it were, constructively.’

The one dissent was that of Justice Lionel Murphy, who drew heavily on the United States case law, as the plaintiffs had invited the Court to do. Murphy J dismissed the distinction between the words ‘for’ and ‘respecting’, pointing to an Oxford Dictionary definition of the former in which the latter was embraced or included, and drawing attention to the marginal note in the Constitution itself – a type of sub-heading – which refers to the prohibition on laws ‘with respect to’ religion. But, even if ‘for ‘ was as narrow as Barwick suggested, Murphy said, the meaning of establishment itself was broad enough to include funding to religious schools. It also encompassed giving preference, by sponsorship or support to any religion over others.

Section 116 contained a great right, and ‘great rights’, Murphy stated (quoting himself from an earlier case) ‘are often expressed in simple phrases. It would detract greatly from the freedom of and from religion guaranteed by those clauses if they were to be read narrowly. ‘ To interpret this section as prohibiting only the establishment of a single religion is to misread it: the section refers to the establishment of any religion. It works thus as a guarantee of freedom from religion, as well as of religion.

To conclude that the provision prohibits more  than just the official identification of a single church as an integral part of the state – and that Australia has, whether it recognises it or not, a constitutionally mandated separation of church and state – is not necessarily to reach the conclusion that government financial support for religious schools should, or would be struck down as in breach of this prohibition.

Even in the United States, the absolute ban on funding of parochial schools has been modified in recent years. A governmental scheme for funding school children through vouchers that could be used at either parochial or secular private school (if parents chose not to send their children to a public school) was upheld by the Supreme Court in 2002. Although it was argued that this scheme encouraged attendance at parochial schools and therefore promoted religion (and effectively coerced tax-payers to subsidise religious instruction) the Supreme Court (albeit  by a narrow majority) emphasised the ‘neutrality’ of the voucher program. The vouchers could be cashed in at secular schools, as well as religious schools. They did not promote religion, but, the Court said, facilitated, ‘the genuine and independent choices of private individuals.’

Maybe. But regardless of this, we need to understand that no constitutional right or freedom is absolute; there are always legitimate exceptions. The public funding of religious schools might be regarded as one of these legitimate exceptions, so long as there is genuine universality and neutrality. It may be defensible on public policy grounds relating to the desirability of educating all children, as far as possible, equally and equitably. It is not my purpose to defend this particular argument – it goes beyond the constitutional question. My point is that, even with a clear recognition that section 116 of the Constitution mandates separation of church and state, there will still be argument about what constitutes a breach of this mandate, and, secondly, what is permissible, even where some degree of breach is established.

My conclusion, however, is that the High  Court got it wrong when they concluded that section 116 was not intended as a broad statement of separation of church and state; and they got it wrong in suggesting that ‘establishment’ was intended to have a narrow meaning. The Prime Minister and the Treasurer got it wrong in overlooking the spirit of this provision. The history of sectarianism, and religious persecution, which the framers understood well, and which served as a background to their deliberations on both the reference to God in the preamble and their inclusion of a prohibition on religious laws, suggests that they had a wide purpose and scope in mind. They appreciated the multiple dangers inherent in allowing governments to involve themselves in religious matters.

In pointing out that section 116 represents a statement of separation of church and state in Australia, I have often been met by the observation that the Constitution only prohibits the Commonwealth from establishing a religion, or requiring religious worship, etc. The states are constitutionally free to interfere in religious matters – and this, opponents will argue, suggests that the framers of the Constitution did not have separation of church and state in mind.

There are several responses to this. First, as I mentioned, the original version of section 116 expressly prohibited the states from passing religious laws.  It was dropped, not because the framers wanted the states to pass such laws, but because they considered this to be a matter for the states, and furthermore, something that the states would be so unlikely to engage in, that it needed no prohibition. The colonies – about to be transformed into states -had, indeed, shown their determination to keep church and state separate, in refusing to fund religious schools and in disallowing religious worship in state schools.

The establishment clause in the United States Constitution is, similarly, directed at Congress – that is, the federal legislature. It was only in the second half of the 19th and into the 20th century, that all of the amendments that make up the Bill of Rights were regarded as constraining the states as well as federal government.

The establishment of a religion, or tests for public office and so on, at the national level is precisely the sort of extreme that the framers feared – where religious pluralism and, indeed, freedom from religion – are smothered. The framers of Australia’s Constitution worked with the knowledge and historical memory of religious conflict and religious persecution. Even the most devout among them acknowledged that religion and government occupied separate spheres. The historically well-educated also understood the dangers of ‘entanglement’ between religion and state.

We are, I think, beginning to understand this again in the 20th century, at least with respect to other countries. We may yet want to reconsider our own constitutional protection against such entanglement, and may find ourselves grateful for the foresight of our founders.

Prof Helen IrvingHelen Irving teaches Australian, comparative, and United States constitutional law. She has researched and written on the making of the Australian Constitution; comparative constitutional design and gender; the use of history in constitutional interpretation; and the ‘dialogue’ model of judicial review. Her current major research, supported by a four-year ARC Discovery Grant, is on the history of constitutional citizenship and gender.



References   [ + ]

1. This article was presented in 2006

Atheistic Morality

During August 2014, Oxford Professor of mathematics John Lennox delivered a series of lectures in Australia on “Science and Faith in God.” Considered a leading figure of the evangelical intelligentsia, Lennox made claims that James Fodor, President of the Secular Society of the University of Melbourne, disputes in a series of five articles.

In Part 1, Fodor critiques Lennox’s claim that modern science owes its development to Christianity.

Part 2 refutes Lennox’s claim that language and semantic meaning cannot be explained naturalistically.

Part 3 deals with Lennox’s claim that naturalistic science is unable to provide an explanation for the intelligibility of the universe.

Part 4 critiques the role Christians played in many important reformist social movements.

Part 5 deals with Lennox’s references to the so-called “evils of atheism”.

In this Part 6, Fodor deals with the idea that atheism fails to provide a moral foundation.


Here I conclude my critique of the major arguments raised by John Lennox at the “Cosmic Chemistry?” public lecture and the “Faith has its Reasons” conferences held several months ago. In this sixth and final part of the series, I discuss the claim made by Lennox that no sensible grounding of morality can be given within an atheistic worldview. I first address his insinuation that utilitarianism is compatible with Nazi ideology, arguing that such a comparison is absurd and there are many perfectly sound non-theistic reasons one can put forward to refute Nazi claims. I then consider various approaches to providing an objective atheistic moral theory, arguing that Lennox fails to engage at all with them, and furthermore fails to consider that many of the same critiques he applies to atheistic ethics can be applied to theistic ethics as well.

What Lennox Said

“The problem (with atheistic ethics) is that if you leave out god… you run into serious problems”

(In response to Utilitarian ethics) “Well Hitler decided that the maximum benefit to the maximum number of people was to eliminate the Jews”

“On what principle can we say ‘Hitler you’ve got to obey this’? Why?”

“If there is no external basis for morality external to morality, how can any conception of morality be anything other than the mere opinion?”

Hitler and Utilitarianism

To begin with I will just say that it is absurd to speak as if Hitler was or ever claimed to be a utilitarian in any sense, and I think it is totally disingenuous of Lennox to make this insinuation. But even if Hitler had said that “the maximum benefit to the maximum number of people was to eliminate the Jews”, he would have been wrong. It’s hard to define what is meant by ‘benefit’ here, but however we cash out the concept (suffering, utility, human flourishing, whatever), it seems incontrovertible that the Holocaust did not maximise human benefit.

What the Nazis in fact argued was that the Jews were sub-human, and therefore not worthy of ethical consideration. To defend this assertion they appealed to pseudoscientific arguments drawn from bad anthropology and worse social Darwinism. They used misrepresentations of history and manipulation of contemporary social indicators (e.g. the Nazis argued that hardly any Jews fought for Germany in WWI, illustrating their cowardice, but this was factually incorrect).

So the Nazi justification for oppressing the Jews was based upon bad reasoning and false information. As such, we can marshal any number of reasons against their contention that ‘the Jews were subhuman’ without invoking God at all. Nor should there be anything surprising about this, as when we think about why the Nazis were wrong, we talk about the horrific harm they did, and the false beliefs they had about race (among other things) – God does not figure into the explanation at all. No appeal to a creator is needed to understand that Auschwitz was a horrific crime – the suffering and death of so many sentient beings speaks for itself.

Atheistic Objective Morality

But suppose our imaginary ‘utilitarian-Hitler’ were to push the gauntlet. Suppose he were to say “I’m not saying the Jews are subhuman in any biological sense. I’m just saying that I don’t wish to accord them any moral value. My moral framework only accords moral value to Aryans. Thus the Holocaust, by benefitting Aryans, was a morally good action according to my utilitarian framework.” This would, presumably, be where Lennox would insert his rejoinder: “on what principle can we say ‘Hitler you’ve got to obey this’? Why?” How can the naturalist say that Hitler is wrong about not according moral value to Jews? Perhaps we might not be able to convince the Nazis, but is there a rational argument that can be given?

In fact, the problem faced by the naturalist is not a dearth of meta-ethical theories: rather it is of selecting from among a surfeit of them. A cursory examination of the relevant literature reveals these examples of non-theistic theories of the nature and basis for objective (understood sometimes in different ways) moral values: Railton’s Reductive Naturalism, Universal Prescriptivism (R.M. Hare), Quasi-Realism (Simon Blackburn), Ethical Non-Naturalism (G.E. Moore), Moral Functionalism (Frank Jackson), Cornell Realism, Discourse Ethics (Jürgen Habermas), and Ideal Observer Theory (Roderick Firth).

Professional philosophers are well are of the great deal of quality work done on this question: according to a PhilPapers survey, 59% of atheistic philosophers are also moral realists (compared to 81% of theistic philosophers). Lennox makes no attempt at even cursory engagement with any of these theories. All he made were unjustified assertions – indeed, often not even that, but rather quasi-assertions disguised as rhetorical questions. This is not how proper philosophy is done.

Problems with Theistic Ethics

Let me now reverse Lennox’s challenge: what can the theist say to Hitler? Why is murdering the Jews morally wrong – because God says so? Why should Hitler care what God says, even if he did believe that God exists? Who says that God gets to dictate morality? God says that? But that’s circular: what if Hitler says that he gets to dictate morality? Is it because God is all powerful? That’s just a variant of might makes right. God gets to dictate morality because God is good? But how can you say ‘God is good’ without antecedently having a concept of what ‘good’ means? Good with reference to what standard of good – God’s own standard? Hitler was also good by his own standard of good; why is God’s standard superior? Because he is more powerful? Now we are back to might makes right.


Lennox presented very little in the way of an argument against the possibility of an atheistic ethic – he merely made assertions and insinuations through rhetorical questions, many of which I think are misleading and poorly thought-out. In particular, I have argued that his portrayal of Hitler as a utilitarian is both inaccurate and irrelevant, since any number of reasons can be advanced to counter the racist claims made by Nazis. I also argued that Lennox failed to engage with any of the many atheistic theories of objective moral values, and likewise failed to see that many of the challenges he makes with respect to atheistic ethics can equally well be made with respect to theistic ethics.

James Fodor is President of the University of Melbourne Secular Society. He is studying for a Bachelor of Science and has a particular interest in science communication, skeptical activism, interfaith dialogue, and effective altruism.

For more, see James's blog here.

How an approach to science helps define the political centre

There was a bit of talk over the last election cycle, expressed in the usual language of political left and right, about returning the pendulum to the “sensible centre”.

Sounds a good idea, but what does it mean to be politically central? And where does science fit in?

It has always been a goal of politicians to define what this centre could be in terms most favourable to themselves. No-one wants to be seen as moving too far from the centre.

After all, it’s simply not a vote-winner to be thought of as excessively left or right. But what people portray that political centre to be can shift left or right to suit the political needs of the time.

To whatever extent there can be an objective centre, rather than just a zone of subjective ideological comfort, it must in part be defined by objective analysis.

Part of that analysis involves the concepts of social equality and wealth generation, but there is also a role here for science.

Enlightenment and the political centre

German philosopher Immanuel Kant in his 1784 essay What is Enlightenment promoted the “freedom to make public use of one’s reason in all matters”. This devotion to public reasoning, and to accepting the consequences of free inquiry, is perhaps the most characteristic aspect of an enlightened society.

The ability and willingness to engage in reasoned debate is a hallmark of civil progress, at least in western liberal democracies.

Neither the political left or right have any legitimate claim to the exclusive ownership of this idea, and it would seem a useful point on which to centre a political continuum.

Public reasoning is a hallmark of democracies. Flickr/imfphoto

Perhaps the most successful manifestation of public reason in our society is science. Not only does it have a rational base, that rationality is itself collaboratively moderated. It is also subjected to a reality amenable to experimentation and inference.

Given this, how a particular government deals with science is indicative of its commitment to public reasoning – and hence of its proximity to the political centre.

A government wishing to avoid accusations of extreme ideology would therefore wish to demonstrate by its words and actions that it:

  • promotes reason and argumentation as the most appropriate mechanism by which a society communicates and debates
  • understands that we are grounded in the real world and that science is the best way we have of understanding it
  • is committed to evidenced based action, where evidence is a result of sound scientific inquiry.

The more tenuous the connection to these points, the stronger the argument that a government is driven largely by ideology.

How serious is the government about science?

How well a government can claim to have achieved these can be judged using certain metrics, such as:

  • a preference for accuracy and reasoned argument as manifest in public debate
  • the clarity and frequency of public acknowledgement of the importance of science
  • substantial financial and structural support for scientific institutions to ensure the provision of the best possible scientific advice
  • a focus on public understanding of science as evidenced by the promotion of and investment in science education.

These are not the only metrics to use, but they are necessary ones.

A government’s engagement with science can be measured. Flickr/Steve Rhodes, CC BY-NC-ND

Don’t confuse rejection of science with reasoned argument

Accepting the principles of the Enlightenment is certainly a claim for the political centre, but this acceptance can be illusory.

For example, one might imagine that the freedom to speak (an enlightenment ideal) in opposition to the findings of science is valuable, and indeed it is. But to reject science for ideological purposes while claiming to embrace the ideals of the enlightenment is buffoonery.

Inevitably some will argue that what presents as science is sometimes biased reasoning or even deceit. This is rife in the case of climate change.

But to work within science to test the conclusions of science is one thing – this is, after all, the very lifeblood of science and what scientist continually do – to argue against its methodology and credibility is quite another.

We should not confuse simple rejection with reasoned argument.

If you don’t agree with scientific findings, your argument still needs to be scientific. If it is not within or at least inclusive of science, it is not rationally based.

We are currently faced with a number of issues across a range of governments at all levels that provide a useful focus for some or all of these measures. These issues include climate change, renewable energy, biodiversity, health, education reform, natural resource management, population planning and consumer protection.

We have no shortage of opportunities to judge our governments against their claims of occupying the political centre. How these issues are dealt with using scientific evidence and reasoning is easily graded.

Let’s be clear that the only stance in opposition to science is an ideological one. Unless that stance can be backed up with scientific evidence, particularly in cases involving the public interest, it is nothing but an assertion of a personally preferred political outcome on the part of those governing.

Our enlightened democracy deserves more than that.

This article was first published in The Conversation, 14 November 2014.


How to spend your dying days with dignity…

Peter Short talks with Fiona Patten about the Sex Party’s policy on Dying with Dignity, and being a civil libertarian party.

At the end of the video, they mention Peter’s crowd-funding campaign to raise $100,000 for a video of his dying days. The campaign closed on 2 November, having successfully exceeded that target with $124,000 raised. The RSA contributed to that figure.

Welcome to the Rationalist Society of Australia, Australia's oldest freethought association.

Rationalists hold that all significant beliefs and actions should be based on reason and evidence, that the natural world is the only world there is, and that answers to the key questions of human existence are to be found only in that natural world.  "We're in favour of science and evidence as opposed to superstition and bigotry!" The Rationalist Society of Australia relies on the support of our members to survive. Please join today, or renew your membership.