When there is no separation of church and state

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.

It is passing strange that Australia follows the United States in many areas of policy - except its republicanism. The cornerstone of American republicanism is separation of church and state. But this central fact about the US has been completely omitted from the Australian debate.

In February 2006 Australians were asked in a Newspoll survey for the first time whether they believed there was a law separating church and state in Australia. In round figures 34 per cent did not know; 20 per cent said there is a law; 46 per cent said there is not.

The majority, surprisingly, got it right. There is no law separating church and state in Australia. We are, after all, a British constitutional monarchy, not a republic.

If we were to ask the 46 per cent why they believed there was no separation in Australia, it is very unlikely any of those surveyed would be able to explain their response. The majority’s answers, were, I suggest, intuitive, and spoke to their concerns about the developing influence of religion on our politics.

But there is no problem with religious figures and lobbyists trying to influence politics. In a free society, that is a right. The majority’s answer could be interpreted to mean they were uncomfortable with the perceived effects of that lobbying and influence.

Be that as it may, the majority’s answer stands paradoxically opposed to the views of the current and the previous prime ministers. When asked by a lone, Associated Press journalist for his view on the matter, John Howard, on March 2, 2006, said that “what the separation of church and state means in this country is that there is no established church … we don’t have the Anglican church as the official state religion, that’s what it means”.

On October 4, 2006 on Radio National’s Religion Report Kevin Rudd also equated the lack of an established church in Australia with separation of church and state. He added he was a “lifelong defender of separation of church and state”.

What John Howard said was an eloquent lawyer’s definition of the meaning of “establishment”. It was not a definition of “separation”.

In 1897 Australia’s first prime minister, Edmund Barton, had said something similar. During the Constitutional Convention in Adelaide he said that unless a state has an established church, the state is secular.

But that was before the religion section, s.116, was made part of the 1901 constitution, and before its meaning was finally clarified in the Defence of Government Schools High Court case in 1981 as Michael Gawenda noted.

Before recalling what the High Court found, it’s important to understand what s.116 says and what inspired it. In plain English s.116 says:

1. there cannot be one “official” religion in Australia as in England, as John Howard said. There, the Church of England is identified with the state by an act of parliament. There is no constitutional separation and Anglican bishops are appointed to the House of Lords;
2. the state cannot oblige us to attend any religious event;
3. you can believe whatever you like and practice your belief (so long as that practice does not contravene any law);
4. all public positions in Australia are up for grabs and your religion or lack of it shall never be a consideration in your right to stand or apply for them.

S.116 was clearly based on the First Amendment to the United States Constitution. It states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

In 1947 in the Everson case, the First Amendment was interpreted to mean that there is a “wall of separation” between church and state in the United States. The key words were spoken by Justice Hugo Black. As a result of that decision, major federal government funding of non-government schools was denied. The decision still grates in the US.

In his Onward Christian Soldiers: the growing political power of Catholics and Evangelicals in the United States, published this year, Dr Deal W. Hudson, self-described as a former member of the National Republican Committee and a Bush White House intimate, said that a “strong animus was in play” in the writing of the Everson decision. Hudson claims that Justice Black was in the 1920s “a member of the Robert E. Lee Klan No.1 cell of the Klu Klux Klan in Birmingham, Alabama” and that “anti-Catholicism and anti-Semitism were KKK specialties in addition to racism”.

That is quite a swipe. Even if is true, it is hardly fair to mount a personal attack like this rather than a reasoned critique of the court’s decision.

Dr Hudson would no doubt be more comfortable with the Australian High Court’s 1981 decision that allowed federal funding to non-government schools. But the price paid for this decision was the scuppering of the principle of separation of church and state in Australia.

In reaching their decisions, Justices Wilson and Stephen explicitly denied separation in Australia. The Chief Justice, Sir Garfield Barwick, endorsed Wilson’s view which was that s.116 “cannot be viewed as the repository of some broad statement of principle concerning separation of church and state, from which may be distilled the detailed consequences of such separation”. Justice Stephen said of s.116 “the provision … cannot answer the description of a law which guarantees within Australia the separation of church and state.”

While the Court referred to the idea that s.116 did not entail an “established” church in Australia, it did not equate a lack of establishment with separation as John Howard believes. In true black letter legalese, the constitutional prohibition against an establishment of a church as the official state religion in Australia does not mean separation of church and state: it means there is a prohibition against the establishment of an official state religion.

It would seem two Australian prime ministers do not understand this. To my knowledge, there is no constitutional expert in this country prepared to argue otherwise.

The wall of separation between church and state in the Republic of the United States has been well and truly battered but it’s still standing. Accordingly, the original idea for Iraq was that it would be a secular republic.

What about Australia? How can we make the transition from constitutional monarchy to a secular republic if we do not separate church and state as in the US model? Australian political culture is still British albeit without an established church. These comments also apply to New Zealand which also has no constitutional separation.

I suggest that is no longer appropriate for a multicultural nation, seeking, as the Prime Minister has reiterated recently, to be a closer partner with Asia. His Mandarin is impressive and our ambassadors are professional. But we still come across as an enclave of the former British Empire that has not managed to remove the British flag from the corner of our own. We share that dubious distinction with New Zealand, Fiji, and Tuvalu.

Also, look at our parliaments. They are filled with mostly white, male, suburban solicitors. We need a new, republican structure that encourages diversity because we need everybody’s ideas regardless of gender, ethnicity, religion or belief.