What is the separation of church and state?

What is the separation of church and state?

Frank Mobbs

From time to time I find myself deeply puzzled by statements in the media to the effect that such and such violates the principle of separation of church and state and also that we are a secular country.

I hear on radio a report and the commentator says, "So much for the principle of separation of church and state" (meaning the principle has been disregarded).

To what principle is he referring? Whose principle is it? Who has decided that it has anything to do with government activities?

As for the repeated invocation that "we are a secular society", a recent example is retired Justice Michael Kirby protesting at exemptions of churches from anti-discrimination laws, "given the secular nature of our Constitution" (7 March 2013, ABC Radio National News).

This remark by a retired judge of the High Court is astounding, for there is nothing in the Constitution about a secular society.

Having done no research on the matter, I have no firm evidence by which to establish what beliefs these people hold when they assert that there is separation of church and state in Australia.

I can only hypothesise that they think there is something in the Constitution establishing the alleged separation. I shall test the truth of that hypothesis.

The only relevant section is s.116 which reads: "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."

Worth noting are the following:

1. The section restricts the powers of the Commonwealth, but not those of the states whose powers are not touched by this section. The states, for example, can establish a religion within their jurisdictions – an event so unlikely as to warrant no further attention.

2. This section limits only the power of the Commonwealth to make laws.

3. It prevents the Commonwealth from establishing a religion.

What is an established religion? The framers of the Constitution had in mind the Church of England in England, the Catholic Church of France, the Lutheran Church of Sweden.

These entities were to some extent controlled by the respective governments and in return were accorded a special status and granted financial support, such as payment of clergy.

Seeing that virtually no one in Australia in 1901 wanted an established church and no one since, this clause has had only one serious challenge. I refer to the DOGS (Defence of Government Schools Association) case of 1981 heard by the High Court.

The Commonwealth had recently provided substantial funds to states for distribution to government and non-government schools. Most of the latter were conducted by Churches, principally the Catholic Church.

DOGS argued that such funding constituted establishing a religion, thus breaching the non-establishment provision of the Constitution. The judges (6-1) quickly threw out the case on the ground that granting money to church-run schools did not amount to establishing a religion as the Commonwealth religion.

Here I pause to comment that Australians commonly think that Australia has the same provisions in this matter as has the Constitution of the United States of America.

As interpreted by the US Supreme Court, America has a very different Constitution. This has led to such absurdities as penalising the display of Nativity scenes on government properties at Christmas time.

The Australian Commonwealth has no power to make a law for prohibiting the free exercise of any religion although there are questions of interpretation, as with all laws.

Consider a law which is pursuant to a Commonwealth law, such as military law. It could, say, compel a Sikh soldier to remove his turban when in uniform. Usually these problems are readily resolved.

That is not the case with conscientious objection to military service.

Regarding the clause, no religious test shall be required as a qualification for any office or public trust under the Commonwealth, this is almost a dead letter, for not one case has ever been brought before a court claiming that this provision has been violated by a Commonwealth law.

Some conclusions:

1. The widespread and usually vague belief that Australia has a Constitution that prevents governments from funding churches and other religious entities, granting them exemptions from certain laws, employing them to carry out tasks on behalf of governments, allowing them to lobby governments, using religious language, or to elect representatives to seats in parliaments on a platform of promoting their religion – this belief has no support in the Constitution.

2. There is no suggestion in the Constitution that Australia is a secular state or a secular society.

A secular state? One remains puzzled by claims that Australia is a secular state. I set out the argument:

1. Most Australians are secular.

2. Therefore governments must not support in any way religious organisations or activities.

Suppose religious citizens are a minority. So what? We all belong to minorities and these express their views and make demands on governments.

Chambers of Commerce are minorities, as are wheat farmer organisations, medical practitioners, trade unions, sporting bodies, and hundreds of other organisations which lobby governments for pieces of legislation and grants of money.

We all accept that they are entitled to do so. No one hollers, "This is a violation of the principle of separation of sport and state."

But when members of a religious organisation advocate in favour of certain legislation, or oppose it, or in favour of grants of money - up goes the cry, "But Australia is a secular society." Whether most Australians are secular or religious is irrelevant to the legality of governments' support of religious organisations.

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