Paper presented at the Annual Dinner of the Christian Lawyers Society Inc., Brisbane/Qld, October 19, 2018.
It is a great honour to be invited by the President of the Christian Lawyers Society, Mr Nathan Rieck, to address this Annual Dinner. The topic of my presentation is ‘Religious Freedom and the Myth of Secular Neutrality’.
I would like to start by stating that religious freedom is a fundamental right that ought to be enjoyed by every citizen. It is a right recognising that every person should be able to pursue his or her transcendent ends freely and without government coercion. Religious freedom, above all, ‘is the bedrock for every human right and it provides a sturdy foundation for limited government’. As Jennifer A. Marshall points out:
[T]his right is granted not by government but by the Creator. By respecting it, a government acknowledges that such ultimate issues are outside its jurisdiction, and that conscience is answerable to a higher authority than the law of the land. Conversely, limited government requires individual responsibility. Freedom engages the moral responsibility of each and every person. In a free society, religion is an ally of good government as it forms the moral character of individuals and communities.
Michael Hernandez, Law Dean at Regent University, explains that religious freedom ‘serves the common good and facilitates the proclamation of the Gospel’. From the point of view of communicating religious truths, writes Professor Hernandez, ‘preserving religious liberty protects the rights of conscience of all, including people of no faith, while allowing the Gospel to be preached so that the world may truly, intimately, fully and freely know Jesus Christ and the blessings of the kingdom of God’. He also reminds us that this is the most classic approach to religious freedom in the United States, where the Christian aspiration to order a society under God became the revivalist’s attempt at converting society by voluntary means. The rationale behind this important freedom is that ‘the personal religious convictions of individuals, freely gathered in churches and acting in voluntary associations, will permeate society by persuasion and example’.
On the other hand, religious freedom is not an absolute right and ‘legislation may validly forbid some types of conduct which a particular religion deems obligatory, or may prescribe action forbidden by religious law. Some such limitations are obviously necessary to protect the interests of citizens who do not share the particular faith’. This covers measures such as blood transfusion caused by life-threatening issues, compulsory vaccination of children in time of the outbreak of an epidemic, and isolation of victims of seriously contagious diseases. These limitations on the free exercise of religion are not to be taken lightly but they can be justified in terms of ‘grave and immediate danger to interests which the state may lawfully protect’.
The High Court itself recognises that religious freedom is not absolute. Not every interference with the free exercise of religion constitutes a breach of section 116 of the Constitution, but only those which are said to amount to an ‘undue infringement of religious freedom’. As Mason CJ and Brennan J stated, ‘general laws to preserve and protect society are not defeated by a plea of religious obligation to breach them’.
Such is the perception that in 1898 led the framers to resist the idea of absolute freedom of religion as posing unacceptable risks to the general community. During the convention debates that led to the draft of the Constitution, a suggestion was made that federal Parliament should have power to prohibit religious ‘practices which have been regarded by large numbers of people as essentially evil and wicked’. Edward Braddon, though eventually supporting Henry Higgins’s proposal which led to the final wording in s 116, initially sought to amend it by adding the following words: ‘But shall prevent the performance of any such religious rites as are of a cruel and demoralizing character or contrary to the law of the Commonwealth’.
Against this historical background Latham J, in the Jehovah Witness’s case, turned to a catalogue of the evils and horrors practised in the name of religion. He fell back on a variation of the classical liberal formula which gives scope for reasonable legislative limitations on personal freedoms, but only in the sense of maximising freedoms at large. As noted by Tony Blackshield, ‘[Latham] seemed rather to have in mind … the Kantian version [of freedom], according to which freedom may be restricted only so far as is necessary to ensure an equal freedom for others, or to ensure the underlying preconditions of freedom for all’.
The sort of freedom guaranteed by s 116 is religious freedom within the boundaries of a free and democratic society. Consistently with this – indeed, in order to secure the continued enjoyment of our fundamental rights and freedoms – our society is entitled to defend itself against any religious idea or activity that incites violence against others, or that disregards the rule of law. To ban such religious expression would be entirely compatible with the free exercise of religion under s 116. Indeed, the High Court has stated that the exercise of religious freedom remains ‘subject to powers and restrictions of government essential to the preservation of the community’ (Justice Rich) or ‘subject to [such] limitations […] as are reasonably necessary for the protection of the community and in the interests of the social order’ (Justice Starke).
This is important if we wish to understand the present context of Islamic extremism. The escalation of global tensions may force the federal government to face radical Islamic teachings more squarely. In a case before the Federal Court not so long ago, the imam of a Lebanese-Australian mosque was refused the continuation of his temporary permit visa because he encouraged religious extremism and violence against non-Muslims. The imam and radical members of that mosque challenged the deportation order, arguing in part that the decision violated s 116 of the Constitution. Fortunately, the Full Court of the Federal Court rejected such an argument on the grounds religious freedom is not absolute and it cannot be used to violate other equally important rights of the individual, especially our fundamental rights to life and liberty.
Unfortunately, however, s 116 is generally interpreted by those who deny and denounce the Judeo-Christian roots of the Australian law as evidence that the document should be regarded as an entirely secular document. In reality, it is profoundly erroneous, although increasingly popular, to assert that the establishment clause in the Australian Constitution was aimed at enshrining secularism. Far from seeking to banish religion from government and society, the framers intended a laissez-faire environment that ensured no particular religious body would enjoy unfair advantage on account of a federal endorsement. As law professor Nicholas Aroney points out:
[T]he High Court has very explicitly affirmed that the non-establishment clause does not prohibit governmental assistance being given to religious bodies, and it certainly has never held that s 116 somehow prohibits the enactment of federal laws or the execution of government policies that are supported, either in whole or in part, on the basis of religious considerations or reasons… In the United States, the equivalent provision contained in the First Amendment has been interpreted, at times, to prohibit virtually all forms of state assistance; but in Australia, state aid to religious schools has been upheld. To suggest that the non-establishment principle makes religious considerations entirely irrelevant to federal law-making and policy-formation is simply beyond the pale—particularly in Australia, but even in the United States.
In other words, the main object of this constitutional guarantee is to preserve religious freedom from federal encroachment, which is entirely different, of course, from government expressly prohibiting the promotion of religious values and traditions. To the contrary, s 116 certainly does not inhibit the government from identifying itself with the religious impulse of the Australian people, or from authorizing religious practices where reasonable people could agree on their desirability. Dr Michael Hogan, Research Associate in Government and International Relations at Sydney University, put it this way:
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 U.S., and which merely serve to confuse once they are taken out of the context of the American Constitution.
To fall afoul of section 116, the federal Parliament would have to go so far as to establish an official denomination, or to value one denomination over the others. In other words, what the guarantee means is that this particular Parliament is not authorised to set up a state religion on the lines of the Church of England. This is after all an anti-establishment clause. Besides, the real purpose of this provision is to effectively limit the role of the federal government (thus affirming the legislative rights of the states), and not to limit the role of the church or any other religious grouping.
The Myth of Secular Neutrality
The religious makeup of Australia has changed remarkably over the past 50 years. The results of the latest national Census show that barely half of the Australian population identifies as Christian while nearly a third nominates no religion. When the first census was taken in 1911, 96 per cent of Australians self-identified as Christian.
Australians should consider how much they might be losing by abandoning Christian values and traditions. Greg Sheridan, foreign editor of The Australian newspaper, one of Australia’s most respected journalists, soberly predicts that ‘the eclipse of Christianity will be like the eclipse of the sun. Darkness will be the result’. When Christianity becomes entirely eradicated from our culture, writes Sheridan, it will be impossible to ignore that without the belief in God there is no final human accountability. ‘Life is just what you can get away with, and no ultimate price to pay’. Or, as Fyodor Dostoyevsky put it in The Brothers Karamazov: ‘If God does not exist, everything is permitted’.
In this context, s 116 of the Australian Constitution is generally interpreted as evidence that the document is an entirely secular document. Because Australia is largely viewed as secular, the prevailing perception is that Christian morality should have no bearing upon the law. Secularists often argue that an unyielding obedience and attachment to the Christian heritage inhibits our progression and evolution as society. This sentiment has evolved and is now used to deny the Christian foundations of Australian law. As a result, Christianity is almost never mentioned, much less promoted, in the political and intellectual discourse. The argument follows that a secularist view of the law is ‘‘progressive’’, while an understanding of the Christian philosophical foundations of the common law may be significant only as a matter of legal history. By seeking to marginalise or silence Christianity, our elites, according to Dyson Haydon AC QC, ‘rejecting a large part of the entire life and history of the nation – because Christianity is so integrated with the national life and history that to annihilate it is to destroy that national life, which can live only in memory’.
There has been an increasing demand from the secular left that religious worship and expression be confined to private space, and that ‘religious reasons for political decisions should be affirmatively excluded from debate in the public square’. However, the exclusion of religious expression from public debate would send a message ‘that it is alright to suppress religious expression for reasons other than the risk of significant harm in society’. This is, as associate professor Keith Thompson points out, inconsistent with the pluralistic nature of our democratic society. By coercing people to leave their religious values and beliefs behind them when they discuss anything in the public square, such an idea places religious people ‘at an unequal disadvantage in public square discussion and debate since it prevents religious believers from expressing themselves in the language most familiar to them’.
Behind the secularist approach (and its desire for a neutral, secular public square) lays the broad assumption that traditional religious beliefs are subjective, divisive, and irrational. That being so, religion should be limited to the realm of private conviction and every citizen’s religious conviction must be ‘privatised’ and excluded from public debate. In large measure this explains the secularist support for a supposedly “impregnable” wall of separation between church and state. As a result, many Australians are now deeply reticent to talk about religion in public life. They know that, no matter how sensibly they present their argument, Christian values and morality are not popular in our postmodern society.
There are many people both in the Australian media and academic circles who are deeply hostile to public manifestations of Christianity. They apparently believe that religion and secularism are irreconcilable opponents. Curiously, however, some of the nation’s most successful judges and politicians were committed Christians. Sir Robert Gordon Menzies is a good example. He was Australia’s longest-serving Prime Minister. Menzies served first from 1939 to 1941, and again from 1949 to 1966. Menzies conceived Christianity as a ‘higher code of moral conduct’ based on unconditional love and its rejection of envy, materialism and hatred of human beings. For Menzies, Christianity was quintessentially a religion of love, peace, tolerance and reconciliation, which ‘calls on human beings to love their enemies and to do good to those who misuse them’.
Menzies also appreciated Christianity as the religion leading to the development of classical liberal values of free speech, free enterprise, free association, and free expression. He believed that authentic liberalism is inevitably associated with the Christian ideals of ‘brotherly love’ and mutual responsibility, which he considered ‘critical to the flourishing’ of democracy. In the words of his leading biographer, David Furse-Roberts, ‘the worldview of conviction politicians such as Menzies cannot fully be understood without considering their spiritual principles or religious faith’. Menzies aspired to promote class harmony and cooperation between employer and employee. On more than one occasion he addressed ‘the pre-eminent place of the Bible in shaping the historic traditions, values and institutions of the Western world, not least the Judeo-Christian ethic’. Above all, as Dr Meredith Lake points out,
The prime minister himself imagined a Christian Australia – a nation in which ‘we ought to read’ … the Bible. Menzies believed that ‘this great and immortal book’ was the proper focus of households and the root of true citizenship. It could bind a nation together, providing a point of unity even for those who disagreed on the finer points of theology … In Menzies’s view, the Bible was ‘the repository of our faith and our inspiration … He thought the Bible was superior to what passed by political discourse, for instance, and recommended the Authorised Version to anyone who wanted to understand English at its finest. Altogether, for Menzies, the Bible was a religious and cultural treasure – the text that defined the Australian people.
One may discard all these historical accounts as nothing but relics of the past. However, the neutrality principle that leads to the privatisation of religion is only workable if religion can be an isolated component of life. But religion is not an isolated component of life because religion has broad, holistic implications for the lives of its adherents as a worldview that shapes the way individuals think and act. This comprehensiveness of religion means that ‘religious neutrality’ is actually a myth that is impossible to achieve. Although secularists are intent on eliminating our Christian values and traditions, their blanket rejection of religion does not necessarily mean that they have rejected all types of faith. Arguably, even when they presume to have banished all religion from the public square, what they have done is no more than to infuse it with their own secular humanist religion. As noted by the American philosopher Brendan Sweetman:
Secular humanism is the view that all reality is physical, consisting of some configuration of matter and energy, and that everything that exists either currently has a scientific explanation or will have a scientific explanation in the future. The universe is regarded as a random occurrence, as is the appearance and nature of life on earth. Thus, secularism is not simply the negative claim that there is no God and that there is no soul; rather, these claims are supposed to follow from its positive theses. Like other worldviews, especially religious ones, secularism contains beliefs about the nature of reality, the nature of the human person and the nature of morality. And many of these beliefs have political implications.
The U.S. Supreme Court recognized this when it declared that secularism is also a form of religious belief, together with other belief systems that do not include the existence of God. In a famous footnote in Torcaso v Watkins the court listed a number of ‘religions […] which do not teach what would generally be considered a belief in the existence of God’, such as Buddhism, Taoism, Ethical Culture, and Secular Humanism’. If this statement is valid, rather than advancing ‘neutrality’ on religious matters, such a process of ‘secularisation’ actually advances a specific kind of religious worldview at the expense of all others. Of course, if secular humanism can be viewed as a type of religion, then the idea of a ‘secular state’ cannot be regarded as a constitutionally coherent approach to the relationship between religion and the state. This particular claim, according to Dr Alex Deagon of QUT School of Law,
is supported in the Australian context by considering establishment clause jurisprudence and applying the High Court’s definition of religion to secularism, with the result that secularism may be considered as a religion for constitutional purposes. It follows that if [secular humanism] can be viewed as a type of religion, the secular would be subject to the prohibition against establishment. The corollary is that state secularism is not a coherent constitutional conception of non-establishment due to its conflict with s 116 [of the Australian Constitution].
Naturally, if religion is defined more narrowly as that which posits a transcendent deity, secular humanism is not a religion. But if religion is defined more broadly, in a way that includes non-theistic worldviews like Buddhism and Confucianism, then secular humanism may be regarded as a form of religion. Ever since the coming of the Enlightenment, Western elites have adhered to a variety of secular faiths. Dean Sullivan was more upfront than most about the implications of secularism when she explained that ‘[t]he correct baseline […] is not unfettered religious liberty, but rather religious liberty insofar as it is consistent with the establishment of the secular public moral order’. These elites would have privatised all religions except their own, which they have privileged above all others.
Indeed most of the discussion of religion and politics in recent years in Australia suffers from a failure to appreciate the significance of the fact that secularism too is a worldview. It was by contemplating this reality that Francis J. Powers concluded that ‘an attitude of indifference or neutrality toward religion, on the part of the state, is theologically and philosophically untenable’. If, in fact, religiosity and morality are basic human traits, then secularism and irreligiousity are not their opposites, and so ‘the rejection of one system of values and beliefs only indicates that it has been replaced by another system considered more acceptable, believable, or valuable’. According to Kathleen McGhehey,
The tenets of Secular Humanism which, for example, deny the existence of the supernatural and advance a position concerning the nature of the universe, the nature and purpose of man, and the source of morality are faith-based. This aspect of Secular Humanism supports the argument that it should be considered a religion for constitutional purposes. As such, materials espousing the underlying beliefs of Secular Humanism should be analyzed as any other religion.
Of course, secularists have every right to petition our elected politicians to adopt their personal values and beliefs. But they are hypocritical if they deny and castigate religious people for doing the same. There is no proper legitimacy for a “secular” state that excludes religious people from political debate. Actually, it is Christ himself who commanded his followers to be the ‘Salt and Light’ of the world, meaning that Christians have the moral duty to serve God and other humans in every sphere of life, including law and politics. And yet, as Christ also said, salt preserves but if salt loses its saltiness it is worthless (Luke 14:34).
Imagine how unjust the entire world would be if Christians had not fulfilled their ‘Great Commission’, if they had privatised their faith and made no impact on the life of their communities. Think, for instance, of great individuals like William Wilberforce (1759-1833), the English politician who became the voice of the anti-slavery movement in the British Parliament. Wilberforce was someone who took the Great Commission seriously, and as a result of this belief he literally changed the world for the better. Abraham Lincoln and Frederick Douglass spoke reverently of him as the great pioneer and father of the abolitionist movement.
When Wilberforce embraced the Christian faith he had no idea how to reconcile his belief in God with his political life. Should he leave politics so as to become more religious? Wilberforce still had to develop a biblical worldview, so he thought about retreating from everything, perhaps joining a monastery or the priesthood. But a visit to the colourful John Newton, the author of the famous hymn ‘Amazing Grace’, who was then 60 and rector of a church in an area of East London, encouraged Wilberforce to stay in politics. Who knew, Newton argued, whether God had not prepared him ‘for a time such as this’?
So Wilberforce decided to take his faith into politics, serving God with his undeniable gifts in the realm of law and politics. ‘God Almighty’, Wilberforce wrote, ‘has set before me two Great Objects: the suppression of the Slave Trade and the Reformation of Manners’. The first object is obviously self-evident, but the second means that ‘Great Mandate’ of all faithful Christians to reform morality and culture in general. Wilberforce knew that in order to get the votes he needed to abolish the slave trade he would have to change the hearts and minds of people first. According to his leading biographer, Eric Metaxas:
Wilberforce wasn’t just ‘religious’ but actually had a personal relationship with God. He seems to have been motivated by love—love of God and the love of his fellow man—more than by a simple sense of right and wrong or justice and injustice. This is probably the single most important factor in what he was able to do.
To conclude, there is nothing in the Australian Constitution that justifies the suppression of religious discourse in the public sphere. Nor is there anything that could possibly justify the denial of equal rights of free speech for all people, religious or not. Although radical secularists in Australia have tried to turn the separation of church and state into the separation of beliefs and state, it is a profound mistake to confuse the autonomy exercised by the different churches with the democratic right of individual believers to participate in political life. By dictating what people can say and treating the most fundamental aspect of their lives exclusively as a private matter, those who view the moral duty of Australian Christians to act in accordance with their religious conscience as something that disqualifies them from political life are basically guilty of promoting an undemocratic form of secular intolerance.
Dr Augusto Zimmermann LLB, LLM, PhD (Mon.), Professor of Law, Sheridan College (Perth/WA); Adjunct Professor of Law, The University of Notre Dame Australia, Sydney campus; President, Western Australian Legal Theory Association (WALTA); Editor-in-Chief, The Western Australian Jurist law journal; former Law Reform Commissioner (Law Reform Commission of Western Australia – 2012-2107). Author of the 3-volume collection on ‘Christian Foundations of the Common Law’ – England, The United States, and Australia (Connor Court, 2018). Paper presented at the Annual Dinner of the Christian Lawyers Society Inc., Brisbane/Qld, October 19, 2018.