ARPA: Separation of church and state?

The relationship between church and state (not to mention between religion and politics) has recently resurfaced as a controversial issue in both Australia and the United States. In America, always on the political agenda in some way, the issue was particularly important in the recent Presidential election as candidates for both major parties came under intense pressure from the fundamentalist religious right to restore christian values to the centre of American politics. During the campaign, the candidates for President and Vice-President in both parties made commitments to ‘install “faith-based” organisations in the front lines of what had previously been the nation’s social support system’ (Didion 2000). The new President, George W. Bush, seems intent on fulfilling this commitment.

In Australia, Federal Minister Tony Abbott drew attention to this issue in giving preference to church-conducted employment agencies in the new Job Network over the government’s own long-established Commonwealth Employment Service. Then he vigorously defended the churches against critics who suggested that the employment policies of the churches themselves gave cause for concern, and that there might be some religious bias in the provision of services. Was this a denial of the proper separation of church and state in Australia? It seems very similar to the concept of promoting ‘faith-based organisations’ seen in America at the same time. More recently, the nomination of Anglican Archbishop Peter Hollingworth as Governor-General prompted another set of accusations that the Howard Government was playing fast and loose with the principle of separation of church and state.

Let’s get one point clear at the beginning: Australia does not have a legally entrenched principle, or even a vague set of conventions, of the separation of church and state. From the appointment of Rev. Samuel Marsden as one of the first magistrates in colonial New South Wales, to the adoption of explicit policies of state aid for denominational schools during the 1960s, to the two examples mentioned above, Australia has had a very consistent tradition of cooperation between church and state. ‘Separation of church and state’, along with ‘the separation of powers’ or ‘pleading the Fifth’, are phrases that we have learned from the US, and which merely serve to confuse once they are taken out of the context of the American Constitution.

What Australia does have is a principle of state neutrality, or equal treatment, when dealing with churches. This principle dates back at least to Governor Bourke (if not to Macquarie) in colonial NSW, and extends all the way into contemporary Australia where government monies at all levels go quite happily to the churches so that they can run schools, hospitals, employment agencies, social welfare bureaux and even drug injecting rooms. This principle of neutrality is not entrenched in either the State or Federal Constitutions, and has no legal standing. (Constitutionally, State governments could still conceivably nominate an established church; only the Commonwealth is forbidden to do so by Section 116 of its Constitution!) Ultimately, the strength of the principle comes from the conventions hammered out in colonial Australia that saw English and Scottish established churches deprived of their priority in government funding. It survives into the twenty-first century because no major party could seriously contemplate abandoning it.

The principle of state neutrality has coexisted in Australia with a strong secular tradition in politics. Neither in its society nor in its political institutions has Australia ever been as ‘religious’ a nation as the United States. State neutrality has not always been comprehensive in Australia, and there are numerous examples of where the larger, and usually Christian, churches get preferential treatment from the state over some of the smaller and more recently arrived religious groups. Still, the principle provides a strong basis for practical reform in such matters.

For most of our history most Australians have been quite happy with the principle that governments should not favour one church over another. The big arguments we have had over the past two hundred and more years have come when government policy seemed to offend in that regard, especially when policy has affected Roman Catholics. In this sense, Paul Keating’s reminder of our sectarian past when he criticised Howard’s nomination of Archbishop Hollingworth has some value, although it is difficult to imagine modern sectarian passions becoming inflamed over such an obviously tolerant and humane person. In recent years there has also been a reaction against the traditional policy by secular Australians who are concerned that there should be state neutrality between believers and non-believers. Clearly, the principle of neutrality needs to be continually reconfirmed and strengthened for changing conditions in society.

There is an important question that follows: should Australia adopt a firm principle of separation between church and state? That question arose in the Constitutional Conventions leading up to the approval of the Australian Constitution. Certainly, there was considerable support for rejecting the model whereby Australia (like England) would have an established church. The colonial politicians of the time borrowed some phrases from the US Bill of Rights when they drafted Section 116 of our Constitution (‘The Commonwealth shall not make any law for establishing any religion…’). However, neither the Fathers of our Constitution, nor numerous High Court judgments since that time, have given any support to suggestions that s.116 should be interpreted to support an American principle of separation of church and state. In an important 1981 High Court judgment challenging the validity of state aid to denominational schools, Justice Lionel Murphy made that argument, but was comprehensively voted down by the rest of the Bench.

Clearly, Lionel Murphy, who had been Attorney-General in the Whitlam Government, and who tried in vain to get public support for an Australian Bill of Rights, would have liked to see the principle of separation given High Court sanction. Many opponents of state aid at the time agreed with him. Recent debates over the suitability of church involvement in employment agencies also highlighted some potential problems. Yet it is not obvious that Australian democracy would be improved by a change to a formal principle of separation.

When one looks back to the foundation of the United States, it is easy to understand that such a principle made eminently good sense at the time. After all, many American communities were founded as a direct consequence of state persecution of their religious beliefs in Europe. European states had a bad history in their dealings with churches, as did some churches in their abuse of civil power. However, the subsequent history of litigation on the issue in the United States does not give confidence that the principle of separation works to the benefit of either the church or the state. The principle has been used to stop some children being able to have prayers in school, yet has not prevented the complete permeation of repressive fundamentalist Christian ideology throughout the political system. What it seems to have produced in practice is not a more just society, but a more hypocritical political system.

A number of books by Americans themselves have recently cast doubt on the value of the American principle of separation for ensuring the tolerant, pluralist, and multi-religious society that their constitutional Fathers wanted. In The Challenge of Pluralism, Monsma and Soper (1997) examined relations between church and state in five democratic societies—Australia, Germany, England, the Netherlands, and their own United States. Their conclusion was that the American model actually fosters some kinds of religious discrimination. Even countries with a formally established church like England seem to have a better record of religious tolerance and genuine pluralism, while Australia’s pragmatic principle of neutrality is presented as something the Americans could learn from. Spinner-Helav (2000) has also recently questioned whether the principle offers enough safeguards for fringe and extremist religious groups in a multicultural United States. Meanwhile, the religious right has been intent on undermining the principle from the other direction by insisting that God must be restored to the centre of American political life (Olasky 1992, 2000).

Clearly, Australia needs to be very careful to ensure that religious divisions do not resonate too closely with other social, economic or political divisions. Commentators are correct to warn that the state should not yield its areas of responsibility, where it is accountable to the whole community, to any religious organisations who deny such accountability. Moreover, we must maintain constant vigilance to eliminate discrimination against people on the basis of their belief (or lack of belief). Any country that promotes patterns of inequality and injustice with a religious basis is asking for trouble. There remains the problem of protecting civil society from the religious excesses of a ‘bible-belt’ state. There were some threats of this for Queenslanders under Premier Joh Bjelke-Petersen, but most changes in Australian public policy over the last half-century have shown an (admittedly rather spasmodic) tendency towards secularism. In Australia the ‘moral majority’, even in its Hansonite form, has always been seen as a small minority. Moreover, the American example has shown clearly that insisting upon the separation of church and state has provided very little protection from religious zealotry.

The principle of separating church and state was designed to protect the freedom of belief from a tyrannical state. However, in Australia, the major bullies have always been in the churches, not in the state. This seems to be so even in America. The state has an important role in protecting the weak and ensuring genuine religious equality. To separate church and state is not the answer to our problems. We look to state agencies like the various Anti-Discrimination Boards at Commonwealth or State level to act as referees and maintain a proper neutrality.

For Australia, the most obvious defect in our protection against religious prejudice (by and against the churches) is in the exemption that religious bodies have achieved in most State anti-discrimination legislation. There is a case for some exemptions—not everyone who wants has a right to become a Rabbi—but not for the blanket exemption written into most State legislation. An important report on this matter by the NSW Anti-Discrimination Board (1984) concluded unequivocally that:

References

Monsma, Stephen V. & Soper, J. Christopher (1997) The Challenge of Pluralism: Church and State in Five Democracies, Rowman & Littlefield, Lanham, Maryland.

NSW Anti-Discrimination Board, (1984) Discrimination and Religious Conviction, Sydney.

Spinner-Halev, Jeff (2000) Surviving Diversity: Religion and Democratic Citizenship, Johns Hopkins UP, Baltimore.

Olasky, Marvin N. (1992) The Tragedy of American Conservatism, Regnery Gateway, Washington, DC.

Olasky, Marvin N. (2000) Compassionate Conservatism: what it is, what is does, and how it can transform America, Free Press, New York.

Michael Hogan is a Research Associate in Government and International Relations at The University of Sydney. He is the author of The Sectarian Strand: Religion in Australian History (Penguin 1987), and numerous other publications discussing the connections between religion and politics.

View other articles by Michael Hogan:

Is Australia Losing Its Religion? (Digest, Nov 2009)
Anti-Political Sentiment in Contemporary Liberal Democracies (Journal, Aug 2007)
Worrying About Religion (Digest, 2 Oct 2006)
A Licence to Mock: Response (Journal, Dec 2004)
Cartoonists and Political Cynicism (Journal, Jul 2001)