Church and State: Australia's Imaginary Wall (Briefings)

BRIEFINGS

BRIEFINGS CHURCH AND STATE

Historian and writer Tom Frame is the Anglican Bishop to the Australian Defence Force. His daily work puts him at the centre of the issues and tensions highlighted in this book. He left a military career in the navy to train for the Anglican priesthood, then took on a unique role as spiritual leader to the men and women who serve in the Australian Defence Force.

According to Tom Frame, few Australians realise that the Australian constitution does not formally separate church and state. He argues that some contact between the two spheres is both inevitable and, in some circumstances, desirable. But there are continuing and unnecessary tensions, for which Christians are largely responsible. This book explores the nature of the tensions: how some can be resolved and others must be accommodated as a permanent feature of political life in a land without walls.

TOM FRAME

In this book he probes the complex relationship between church and state, which has resurfaced as a controversial issue in Australia. From the appointment of an archbishop as governorgeneral to churches tendering to provide government services, the influence of religious organisations on government activity has raised again the question of whether a wall of separation should exist between organised religion and government.

UNSW PRESS ISBN 0-86840-916-2

BRIEFINGS A series of short, topical books exploring social, political and cultural issues in contemporary Australia, published in association with Australian Policy Online, www.apo.org.au

9 780868 409160

UNSW PRESS

Church and State Australia’s Imaginary Wall Tom Frame

CHURCH AND STATE AUSTRALIA’S IMAGINARY WALL

Tom Frame was born at Sydney in 1962. He joined the RAN College, HMAS Creswell, as a 16-year old cadet midshipman in 1979. After serving as research officer to the Chief of Naval Staff and completing a PhD on the HMAS Voyager disaster, he resigned from the RAN in 1992 to complete a Masters degree in theology and training for the Anglican priesthood. Ordained in 1993, he held parish appointments in Australia and England. His earlier works include the bestselling HMAS Sydney: Loss and Controversy and Binding Ties: An Experience of Adoption and Reunion in Australia. He is presently Anglican Bishop to the Australian Defence Force, patron of the Armed Forces Federation of Australia and a member of the Council of the Australian War Memorial.

BRIEFINGS A series of topical books exploring social, political and cultural issues in contemporary Australia Series editors: Peter Browne and Julian Thomas Australian Policy Online (www.apo.org.au) Institute for Social Research, Swinburne University of Technology

Church and State Australia’s Imaginary Wall TOM FRAME

A UNSW Press book Published by University of New South Wales Press Ltd University of New South Wales Sydney NSW 2052 AUSTRALIA www.unswpress.com.au © Tom Frame 2006 This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Enquiries should be addressed to the publisher. National Library of Australia Cataloguing-in-Publication entry Frame, T. R. (Thomas R.), 1962– . Church and state: Australia's imaginary wall. ISBN 0 86840 916 2. 1. Church and state – Australia. 2. Religion and state – Australia. 3. Australia – Politics and government. I. Title. 322.10994 Cover photograph: Prime Minister Howard at the opening of the 41st Parliament at the Canberra Baptist Church/ Pat Scala, Fairfax Photos Edited by Carla Taines Printed by Hyde Park Press

Contents Introduction

7

1. No wall, one people

14

2. One wall, two people?

32

3. Whose wall?

48

4. No wall, two people?

68

5. A land without walls

88

Further reading

96

Introduction

A

ustralia is not a Christian nation. Despite vigorous assertions to the contrary, it never has been. Public life has, of course, been shaped by a long and close encounter with Christianity. The principal public holidays are the most important Christian holy days. National ceremonies, such as Anzac Day commemorations and the opening of parliaments, resonate with Christian ideals and language. Many Christian beliefs and attitudes have been absorbed into popular culture through personal associations with the church and individual participation in its rituals. Christians have expressed their religious convictions in giving to national institutions a religious character and complexion. Indeed, public discourse about a range of issues and aspirations has been shaped by Christianity and assumed many of the values it has imparted while taking for granted the social and moral order it has provided. While much of the Australian population does virtually nothing formal about their Christian convictions – most could be described as “accidental,” “anonymous” or “occasional” Christians – many actions and attitudes reflect a worldview derived unconsciously from Christianity. Despite the extent of denominational affiliation and the depth of sympathy for Christianity, it is not the official religion of Australia and there is no established church. This comes as a surprise to Australians who are either uninformed of the nation’s history or unfamiliar with the Constitution. Many presume some form of legal preference for Christianity or special status for the Anglican church because the European settlers came from a nation with an established church and a formal commitment to Anglicanism. But there is nothing in Aus7

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tralian law which gives any privilege to the Anglican church or precedence to any religion. This much is clear and, to my mind, a good thing. As I will argue, the fusing of church and state disfigures religion and harms politics. This separation does not, however, preclude interactions between church and state and does not imply that Australia is a secular nation governed by an atheistic state that must refute religious belief and refuse contact with religious bodies. But because there is widespread community uncertainty about the constitutional relationship between church and state, a lack of informed public discussion about the philosophical need for church and state to remain separate and much media confusion about the political character of their everyday interactions, church–state relations have become a controversial subject with extremists on opposing sides promoting two very different outlooks. Those who demand a strict separation of church and state (I refer to them in this book as “separationists”) want to erect a legal “wall” that prevents interactions because they fear the emergence of an established church and the gradual imposition of an official religion. While recognising that some individuals will hold convictions of a religious nature and will probably want to gather with like-minded people to express them, separationists believe the state should be indifferent to these people and their convictions because religion involves beliefs that are not universally self-evident or entirely accessible by reason. They point out that religious beliefs are not held by everyone and cannot be sanctioned by government because the state’s jurisdiction does not extend to matters of conscience. Such beliefs cannot, therefore, be accorded any special status, be allowed to shape public policy or be imposed by force of law. Thus, separationists seek an end to the privileges the state has extended to the church (most notably taxation exemptions and funding for education) because, it is often claimed, these privileges amount to official recognition of Christianity. They also oppose religiously inspired contributions to debates over abortion, euthanasia, reproductive technology and homosexual marriage, claiming that Christians have a track record of using political processes to restrict the personal freedom of all citizens by insisting that public policy reflect moral values implying beliefs that non-Christians do not profess. 8

INTRODUCTION

There is a converse view. Because a clear majority of Australians declare some membership of, or affiliation with, a Christian denomination in the national census taken every five years, there ought to be some public reflection of the religious beliefs and Christian values of the people from which the state derives its authority to govern. If the convictions and outlook of the majority are to be respected and regarded as a legitimate source of social and political homogeneity, the state should promote the religious ideals of the population and require certain behaviours without necessarily insisting on the beliefs on which they are based. Because societies require an overarching story to give them group coherence and a sense of collective purpose, there is nothing wrong with the state being party to the transmission of the particular moral story – in this case the Christian story – that links the majority of people within the society it seeks to govern. To banish the Christian story from public discourse or to discount its influence on the constituents of a nation is to succumb to the tyranny of the minority and to distance the state from the ordinary life of its people. Therefore, Christians are entitled to draw upon the historic moral discourse that the church has hosted over centuries and offer their perspectives on a range of pressing contemporary questions. Nor should they be prevented from arguing that the beliefs and values of the majority ought to be reflected in public policy. While there are extremists on both sides – some advocating theocracy and others a strictly secular state – most Australians generally accept that the church and the state are (and ought to remain) separate and distinct entities that will interact from time to time in pursuit of common goals and collaborate in response to shared concerns. But what restrictions or limits should be imposed on these interactions by religious doctrine or constitutional law? How should the church and state regard one another in the context of their acknowledged and asserted privileges and prerogatives? Is one subordinate or subject to the other? Are there any mutual obligations? Might certain kinds of interaction threaten their integrity, undermine their character or diminish their charter? Answering these questions requires the sensitive application of insight and wisdom on all sides. Some of the answers can be quickly agreed and readily written into law; others will be promoted in public policy. Many of the answers will also be 9

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reflected in the everyday actions and attitudes of citizens who esteem tolerance and value prudence. But in matters involving firmly held beliefs about ultimate experiences like life and death, emotional responses and erratic behaviour are not unexpected. Against the backdrop of religiously inspired global terrorism, church–state relations have again become the cause of widespread anxiety. The fundamental questions to be addressed will not disappear simply because the issues involved are too difficult or potentially divisive. This book has been written for a general audience. My aim is to address readers with religious convictions and those with none. But some in the latter category might ask: why should we listen to a Christian with a potentially partisan view? My response is simply this: I share the view of several commentators that the church rather than the state is primarily responsible for some of the present tensions in Australia. From my observation as an “insider,” I would say that many within the church do not understand the questions, appreciate the character of the debate, grasp the attendant theological complexities, acknowledge the lessons of church history, display sufficient humility about the church’s shortcomings, concede a lack of consensus among Christians, understand the nature of political discourse or value the integrity of the state in this country. Sadly, the loss of spiritual authority has created a desire for political influence that has warped religious life in this country. Too many Christians want the church to exceed what I believe is its divine mandate by means that are likely to compromise its mission and distort its character. The church is meant to be, after all, an earthly manifestation of a heavenly reality. In my view, some denominations and individuals are in real danger of fusing religion and politics, and of failing to maintain the necessary distance between church and state that is needed for their healthy interaction. They are not seeking a form of religious establishment. There are too many denominations in Australia for one to achieve primacy. Rather, their aim is to secure special status for Christianity. Once official recognition of Christianity is achieved – legally or politically; it is evident some are committed to the latter and have little time for the former – it is possible to demand that public policy reflect its tenets and teachings. In my view, much of the present tension has arisen from Christianity having a 10

INTRODUCTION

contested legal standing and political status in Australia. Without this matter being properly settled or at least more adequately understood, there will be little clarity in debates ranging from abortion to euthanasia, and sexuality to human rights. Feeling that Australia is abandoning its “Christian heritage,” a broad coalition of Christian groups is committed to opposing “secularism” wherever they believe it is gaining ground. Church–state relations have emerged as the primary battlefield. At times unthinking opposition to secularism has prompted overtly political behaviour and has, in my view, diminished the possibility of the Christian message being heard with respect to some of those things which the church, and only the church, can offer this world. Put simply: the church has more at stake and, therefore, much more to lose than the state. This book will not be addressing these questions from the perspective of other religious faiths, such as Islam. They have different worldviews that cannot be readily or easily reconciled with those derived from Christianity. What might be acceptable or desirable to a Christian in terms of the church’s relationship with the state might, for instance, be unpalatable or offensive to a Muslim. But it is apparent that comparable debates about the relationship between the mosque and the state have taken place within the Australian Islamic community. There are, for example, Muslims who are not convinced that Islamic states (whether Shia or Sunni) can adequately embody the teachings of the Quran in their common life and political culture or that the demands of national sovereignty and public administration can be harmonised with the inculcation and practice of religious virtue. They have noted the prevalence of conflict between ostensibly Islamic states and believe the cause of religious freedom is hindered by corrupt and despotic regimes claiming Islamic identity. Although groups promoting the need for Islamic revolution and the substitution of secular civil law with Sharia law receive greater media attention, the continuing discussions about religious–legal–political relations underway within the Islamic world should not be overlooked. In Australia, the majority of Muslims are committed to some deliberate dialogue and continuing contact with the state, and are just as concerned about the character of these interactions as Christians. Muslims want to be free to practise their religion without being hindered by the state. They do not want to 11

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suffer discrimination because they are Muslims and expect that any assistance offered by the state to one religion will also be extended to them. On the level of broad principle, many of the arguments I make with respect to Christianity and the church could also be made with respect to Islam and the mosque. Church and State: Australia’s Imaginary Wall addresses a number of questions and provides some answers; clarifies certain points while discounting the alleged significance of others; raises new questions that are yet to be considered; sounds warnings and offers advice; and finally, suggests a few positive actions for the future that will enrich the church and enhance the state. Given the complexity of the issues and the contested history from which they emerge, the first two chapters are largely contextual. Chapter 1 accounts for the evolution of relations between the church and civil government over the past two millennia. The second chapter looks at the philosophical, political and practical imperatives for separating church and what became known as the state. Chapter 3 outlines the Australian context in which questions concerning church–state relations have been managed with emphasis on the Preamble and section 116 of the Australian Constitution. In the fourth chapter I deal with recent tensions between Christians and secularists arising from disagreements over church–state relations and how these tensions can be resolved or, at least, eased. In the final chapter I set out my own position and outline what might be the future characteristics of Australian church–state relations. Readers should also be aware that I am not a lawyer, politician or civil servant. I am a church leader who works closely with the state in conditions of ambiguity and, at times, compromise. As Anglican Bishop to the Defence Force I deal on a daily basis with the nexus between church and state as I lead my church’s mission to sailors, soldiers, airmen and women. At the request of Prime Minister John Howard I have conducted national commemoration services in the Great Hall of Parliament House in Canberra, officiated at the Dawn Service at the Australian War Memorial where I am also a member of the federal cabinet-appointed council, and served on ethics committees for several state institutions. In writing as a committed Anglican, I believe my membership of the Anglican church is, in this context, a help and not a hindrance. My church has probably spent more time 12

INTRODUCTION

and energy than any other reflecting on its relationship with the state, being the antipodean off-spring of the established Church of England. This accounts for the number of Anglican examples in the text. Although I have maintained a life-long interest in politics, I am not a member of any political party or lobby group. It might also be helpful for readers to know that I have not been constrained by either the Anglican Church of Australia or the Australian Defence Force in any way from expressing my thoughts and opinions in this book. I am, of course, accountable for my views and responsible for any errors of fact. I am most grateful to my colleagues Dr Bruce Kaye, former general secretary of the Anglican Church of Australia, and Dr John Seymour, adjunct professor in the Faculty of Law at the Australian National University, for their very helpful and insightful comments on an earlier draft. As I am not the first author to tackle this question, a further reading section has been included at the rear of this book.

NOTE: The New American Standard (NAS) translation of the Bible is used throughout. 13

CHAPTER 1

No wall, one people

T

he relationship between religious communities and civil authority has been a feature of theological debate and political dialogue since ancient times. The earliest Hebrew scriptures disclose that God entered into a covenant with the ancestors of Abraham after he had journeyed from modern-day southern Iraq to the region now known as Palestine just after 2100 BC. In the book of Genesis, God promises to make Abraham “a great nation” in which “all the families of the earth will be blessed.” They would be a peculiar people set aside from the rest of humankind to serve the divine purpose. Abraham’s clan was commanded to keep separate from the surrounding pagan tribes. When they became a “Kingdom of Priests and a holy nation” in the time of Moses they were to remain in the promised land and have nothing to do with the surrounding “seven nations greater and mightier” because they would invariably be led away from their God and their special calling. Associating with the pagan culture of the neighbouring peoples, even in their social organisation, would alienate them from God. There was no political or administrative division between the religious and the mundane aspects of life. Israel was a theocracy: God was their king; the law of Moses was the law of the land; and the Levitical priesthood and the temple officials provided government. They were a religious people in every sense. The notion of a secular or “non-religious” realm did not exist, other than outside their common life. But the Israelites soon wanted the same customs and structures as their neighbours, particularly a king to rule over them. This was granted in the time of Samuel (circa 1100 BC). After the triumphs of David’s 14

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kingship and the building of God’s house – the temple – in Jerusalem by Solomon, Israel split into rival northern and southern kingdoms (930 BC) before the fall of Jerusalem in 586 BC. The people of the southern kingdom, Judah, were carried off to exile in Babylon. When a remnant returned from exile under Ezra (458 BC), the descendants of Abraham again saw the importance of a distinct holiness derived from remaining separate from the surrounding peoples and cultures. They returned to Jerusalem as a community rather than a nation. The invasion of Judea, initially by the Greeks (fourth century BC) and then the Romans (first century BC), dramatically altered the Jewish social and political outlook. Collaboration between Jewish authorities and the occupying forces spread to the common people and everyday life. Public administration was gradually formalised and the structural characteristics of a central government with recognised authority (what we would describe as “the state,” although the term is not used in the biblical texts) gradually emerged in Israel. By the time Jesus of Nazareth began his public ministry in the region of Lake Galilee around 27 AD, Palestine had been under Roman military and political domination for decades. The Jews had become acquainted with the concept of imperial government as the source of authority for the exercise of political power. This included discretion to make laws regulating a range of activities and the right to deploy coercive force to ensure compliance. Although Jews remained hostile to the occupying Romans and longed for their expulsion, resistance to many Roman practices weakened with time while Jewish leaders were drawn into the Roman system of public administration as minor local officials. Jesus appeared to have been largely indifferent to Roman rule. While conscious of its oppressive spirit and sacrilegious character, he did not openly challenge Roman political authority or military power. He also seemed to have acknowledged the existence of distinct and separate realms of jurisdiction. When his opinion was sought on the long-running debate about Jewish payment of Roman taxes, Jesus refused to be drawn into this controversial political question for fear that his mission would be mistaken for a political uprising. After asking his interrogators for a Roman coin and noting that it carried Caesar’s image, he concluded: “render to Caesar the things that are Caesar’s; and to God the things that are God’s” (Matthew 22:21). 15

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The essence of Jesus’s teaching – and the reason he was anxious to avoid any confusion about its character – was the proclamation of the coming “Kingdom of God.” It would take root in the human heart, reorientate lives and transform the world. He told his disciples: “you are in the world but not of it.” They were instructed to remain unstained by “the world” – those things that lay outside God’s sovereignty – and its destructive deceptions. Jesus appears to have renounced any dependence on government power for the inauguration or survival of the Kingdom of God. And yet, the disciples were instructed to preach a message of forgiveness and reconciliation in this world, and to live each day as though the Kingdom of God had already come. Despite Jesus’s strong emphasis on the spiritual thrust of his mission and his disclosure to the Roman procurator, Pontius Pilate, during an interrogation that “my kingdom is not of this world,” Jesus was charged with sedition and condemned to death. He was executed by the Roman army (most likely in early April 30 AD) in the manner of a rebel who had challenged the authority of Rome. He was buried and, the procurator imagined, soon forgotten. This was a premature judgement. The followers of Jesus claimed he had defeated death and had risen from the grave three days after being crucified. In the 50 days between his resurrection and ascension into heaven they became convinced that Jesus was indeed the Christ – God’s anointed one – and the saviour of the world. The final act of the risen Jesus was to impart responsibility for the continuation of his mission to the disciples. They were the first members of an ordered and disciplined community called the “church.” In the surviving letters to congregations founded by the apostle Paul during the next two decades, we observe that the apostle spoke of the church in two ways. In the first, he seemed to imply the “church” is that geographically specific gathering and visible assembly of people with two things in common: they lived and laboured in the same place and they professed a loyalty and commitment to following Jesus. In the second, St Paul spoke of the church in universal terms. It is the invisible company of all the souls, both alive and dead, who have believed in Jesus as Lord and Saviour. In writing to the churches at Corinth and Colossae, for example, St Paul outlined the broader and eternal purposes for which their particular communities were called into being. The apostle reminded his 16

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readers of their membership of the universal church and what that cosmic reality meant to their local assembly. They were to be concerned about the whole creation; dedicated to maintaining unity wherever the followers of Jesus were found; anxious for the welfare of other believers; and mindful of the small but nonetheless significant part they were to play in God’s unfolding plan of redemption for the whole world. Thus, they were to be interested in every person and every process which had not been transformed into Christ’s likeness or brought into conformity with the will of God. Consequently, the church was to be active in the world on God’s behalf, working to reconcile and redeem individuals and communities. But there is nothing in St Paul’s writings which could have been construed as a political manifesto nor was there any encouragement to seize control of civil authority. Although initially very small in number, the Christians were subjected to widespread discrimination and persecution. Isolation from social life and rejection by civil authorities had an effect on their social and political outlook and the character of their corporate life. St Paul’s letters reveal a network of tight-knit communities striving to remain faithful to Jesus’s teaching. The chief challenge for the church, according to Paul, was to commend Christian faith in a world imbued with pagan philosophy. A commitment to purity of belief eventually prompted an organic break between the church and the synagogue, and the abandonment of some Roman social customs. It appears that some churches, such as that at Galatia in Greece, had already started to follow local philosophers. Paul chastised them for syncretism and compromise. As the earliest congregations also believed that the risen Jesus would soon return and bring an end to human history, there was no need for a comprehensive programme of social ethics to deal with contemporary dilemmas. Because they were, in any event, powerless to influence Roman institutions or customs directly, they applied their principal energies to attracting new converts and deepening their faith. But remaining faithful to Jesus’s teaching while reaching out to a potentially hostile world did not, however, create two separate spheres of life with one designated religious and the other profane. In his letter to the church at Rome, Paul had already denied such a distinction by calling on Christians to demonstrate and commend their faith in everyday life. But were those who exercised secular authority capable 17

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of serving or frustrating the purposes of God? Plainly, the answer was “yes.” What, then, was to be the Christian attitude toward them? Because emperors, monarchs and chieftans with personal autonomy ruled most ancient states personally and directly, the biblical texts contained contrasting depictions of government and its responsibilities. Paul expounded the positive view in his letter to the church at Rome. Those with civic authority were appointed by God and given coercive power to promote order and prevent chaos (Romans 13:1–2). Therefore, everyone was subject to their decrees and directions. Obedience was a non-negotiable duty. Physical force could be used to counter non-compliance and punish wrongdoing. This text must, however, be considered in relation to a contemporary incident in which the Jewish high priest and the council ordered the disciple Peter and his companions to discontinue their preaching about Jesus. Peter was resolute in his defiance: “we must obey God rather than men” (Acts 5:29). If temporal authorities acted contrary to the laws of God, Christians were implored to point out the binding character of these laws and then to insist that even rulers are subject to them. The negative view of government is implicit in the Revelations of St John. In an apocalyptic vision recorded around 93 AD, John described a battle between God and the forces of evil, in this instance a beast (his veiled description of Roman imperial power), symbolising an attempt at divinity through world domination (Revelation 13:1). John was adamant that secular authority, as manifested in the Roman Empire, was an evil to be resisted because it aspired to divinity. In this context, John called his readers to patient endurance and faithfulness to Jesus because the forces at work were neither divine nor eternal; they were human and finite. Like Paul, John lived under the canopy of Roman hegemony and his experience was not of inter-state rivalry but of increasingly totalitarian government. The community to which he spoke was enveloped by oppressive violence. This small group of Christians could not see a genuine rival to the emperor or an alternative government to Rome. However, the Revelations concluded with the final victory of God and good over Satan and evil involving terrible violence that was waged on a cosmic scale. These two texts were, of course, written at different times, for different people in very different social, political and religious contexts. 18

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But once the interpretational challenges are overcome, it is nonetheless possible to distil an early Christian view of civil authority. The state is distinct and separate from the church. It is part of God’s present ordering of temporal affairs despite its manifest imperfections. It is authorised and empowered to exercise power by God to whom it remains responsible. Only when standing in correct relation to God do states have “divine” authority for restraining evil and promoting justice. Individuals are to acknowledge its authority while realising that God will bring to nothing any government or ruler that claims ultimate authority or demands absolute obedience. Because the state could be motivated by evil intent and might seek to thwart or resist the purposes and will of God, the Christian is always and everywhere much less the citizen and much more the resident. The New Testament variously refers to Christians as “ambassadors of a foreign power” and as “those who reside as aliens.” They live in this world but their citizenship is clearly elsewhere. Membership of the Christian community is gained through baptism; membership of the nation is usually via birth (or by a process of “naturalisation”). One involves a deliberate action; the other is the function of circumstances. A person is not born a Christian but is born a citizen. Therefore, while every Christian is a citizen, every citizen is not a Christian. This being so, Christians have civic duties that cannot be set aside and they have responsibilities that must be discharged. There will, then, be individual Christian participation in matters of state. But this “alien citizenship” (a phrase used in 1 Peter to describe the Christians living in Asia Minor) places the Christian in an awkward position which poses potentially irresolvable or intractable problems in relation to his or her primary loyalties. In the second century, an unknown writer explained to the pagan Diognetus that Christians were a particular people: They cannot be distinguished from the rest of the human race by country or language or customs. They do not live in cities of their own; they do not use a peculiar form of speech; they do not follow an eccentric manner of life. Their doctrine has not been discovered by the ingenuity or deep thought of inquisitive men, nor do they put forward a merely human teaching, as some people do. Yet, although 19

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they live in Greek and Barbarian cities alike and follow the customs of the country in clothing and food and other matters of daily living, at the same time they give proof of the remarkable and admittedly extraordinary constitution of their own commonwealth. They live in their own countries, but only as aliens. They have a share in everything as citizens, and endure everything as foreigners. Every foreign land is their fatherland, and yet for them every fatherland is a foreign land… It is true that they are “in the flesh” but they do not live “according to the flesh”. They busy themselves on earth but their citizenship is in heaven.

While the Roman state resorted to physical coercion in an effort to maintain the cult of emperor worship, the church was an unrelenting opponent of compulsory official religion. Tertullian of Carthage explained in 200 AD that: It is a fundamental human right, a privilege of nature, that every man should worship according to his own convictions. One man’s religion neither harms nor helps another man. It is assuredly no part of religion to compel religion, to which free will and not force should lead us.

While Christians affirmed their participation in what St Augustine of Hippo referred to in the late fourth century as “the politics of the earthly city,” their true polis and their ultimate loyalty is with God in “the Celestial City.” For the Christian, then, the motto is “God before country” rather than “God and country.” The most popular theme in Christian social thinking until the latter part of the third century was the church’s obligation to remain at a distance from the government and its instrumentalities because the church was a prophetic community whose own life reflected God’s character and divine denunciation of tyranny. Any sense of separation ended with the conversion of the Emperor Constantine at the Milvian Bridge in 312 AD. This remains one of the most far-reaching events in Christian history. Within the period of one human generation, the church could exchange persecution and oppression for imperial patronage and support. It was a proposition too good to refuse. 20

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In deciding to reduce the distance between itself and the imperial government, the church gave passive submission to the emperor and the alliance known as “Caesaro-papism” began. Constantine was patron not penitent; master not disciple; and, although unbaptised, he presided at the first Council of Nicea in 325 AD which met to settle critical points of doctrine. The differentiation of the clergy from laity and their gradual domination of the church also followed the church’s formal recognition by Constantine. With the church’s consent, a person no longer needed to choose whether they wanted to become a Christian. Baptism was now a function of birth and a symbol of citizenship, rather than the outcome of conversion and the product of repentance. Theology had apparently conquered politics. Although the prior separation of church and state was based on theological principles, the church’s alliance with the emperor was largely a pragmatic decision. There was a widely held view that if the church did not develop into a great political corporation it would perish at the hands of the encroaching barbarians. It seemed no further justification of the imperial political association was required. Thereafter, the challenge was to determine the respective responsibilities of each within a unitary political framework. Not surprisingly, there were tensions between church and state (embodied in the emperor) as each grappled with the new and evolving relationship. In the fourth century the Emperor Theodosius ordered the Bishop of Milan, St Ambrose, to hand over his cathedral to the empire. Ambrose refused and then rebuked the emperor, saying: It is not lawful for us to deliver it up nor for your majesty to receive it. By no law can you violate the house of the private man. Do you think that the house of God may be taken away? It is assented that all things are lawful to the Emperor, that all things are his. But do not burden your conscience with the thought that you have any right as Emperor over sacred things. Exalt not yourself, but if you would reign the longer be subject to God. It is written, God to God’s and Caesar to Caesar’s.

His statement gave rise to the Galesian “doctrine” enunciated in the fifth century by Pope Gelasius I (died 496 AD). It sought to ascribe certain duties and responsibilities to the church and to the state and 21

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became the authoritative ruling. It was regularly cited when prerogatives were threatened or responsibilities ignored. For nearly a thousand years from 400–1400, the church and state were thoroughly intertwined. They were neither separate nor distinct. But the relationship was not always harmonious and there remained some unsettled questions. There were perennial grabs for precedence and power on both sides and constant arguments about the sources of authority and the boundaries of jurisdiction. The problem did not usually reside with the state although there were occasions when bishops resisted secular intrusions into spiritual affairs. The conflict between King Henry II of England and Archbishop Thomas à Becket which reached a climax when Becket was murdered in Canterbury cathedral in 1170 comes quickly to mind. More often it was a lament from inside and outside the church that individual Christians were meddling in matters that compromised the church’s mission and exhausted its energy. The vast majority of heresy trials related to protests by clergy and laity against the worldly preoccupations and selfish materialism of the church. The Net of Faith, written by the Bohemian reformer Peter Chelcicky of Poland in 1440, was typical. By the use of force no man is brought to faith in Christ, as unlikely as that a man should acquire a knowledge of the Czech language by studying German… By means of the secular power Antichrist has pulled all power to himself under cover of the Christian faith. Since we believe that it was by meekness and humility unto the cross that Christ delivered us from the power of Satan therefore we cannot allow that the perfecting of our faith comes by worldly power as though force were a greater benefit than is faith… When Emperor Constantine in his heathen mode of existence was taken up into the Church by Pope Sylvester and the latter was fitted by the former with external rule – the destruction of the Church was inevitable.

By the time of the sixteenth-century Reformation in Europe, the ground had shifted substantially. The spiritual and temporal power of the church was in marked decline. The most significant shift resulted from the theological and later political rejection of papal authority 22

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which had previously transcended national boundaries. This created new distinctions within Christendom that tended to reflect emerging patriotic and financial interests. In England, King Henry VIII declared in 1534 that the Pope’s jurisdiction did not extend to his realm. The Articles of Religion devised after the break with Rome stated: The King’s Majesty hath the chief power in this realm of England, and his Dominions, unto whom the chief Government of all Estates of this realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction… the Bishop of Rome hath no jurisdiction in this realm of England.

The English church was effectively nationalised and the church in England became the Church of England and was by law “established.” It was an important and much-debated political, legal and ecclesiastical concept at the time and has been ever since. The Church of England became, in effect, the spiritual arm of the English state with parliament given authority to appoint clergy, settle debates over doctrine and regulate public worship. The 1559 Act of Supremacy required that those nominated to public office testify “in my conscience that the Queen’s highness is the only supreme governor of this realm… as well in all spiritual or ecclesiastical things.” There was no divided loyalty between church and state because they were united under a single head – the “godly prince.” The English theologian Paul Avis explains that: the theory of the godly prince was not what it may appear to us to have been, an appeal from Church to State in what was essentially a religious matter. It was an appeal from one officer to another within a single society, the Christian commonwealth.

The monarch as “supreme governor” did not have absolute power because he or she was under God and the law. But the exercise of monarchical rule of this kind relied on the presumption that every person within the realm was a member of the Church of England. For there to be one religion under one monarch, establishment was neces23

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sary. Thus, Edwin Sandys (1519–88), Archbishop of York under Queen Elizabeth I, argued vigorously that there were limits to religious liberty because diversity of religion was “dangerous to the commonwealth” and imperilled its national life. He pronounced: “One God, one King, one faith, one profession, is fit for one monarchy and commonwealth. Let conformity and unity in religion be provided for; and it shall be as a wall of defence unto this realm.” But Sandys was too late. Religious diversity had already emerged to challenge establishment. The “Elizabethan Settlement” was resisted by those who could not assent conscientiously to every element of Anglican doctrine; those who could not accept the notion of an “established” church on theological grounds; and, those who philosophically opposed the principle of the state prescribing religious belief and demanding compliance. There were “dissenters” on both theological and political grounds. An established church could not, of course, be indifferent to dissenters because they challenged the very principle on which establishment rested. The protection and preservation of an established church encouraged self-righteousness and intolerance – as was vividly demonstrated before and after the English Civil War (1642–48). With time and the cooling of religious passions, Protestant dissenters were allowed freedom to worship in their own way and were eventually admitted into the fullness of English national life. It took a little longer in the case of Roman Catholics who appeared to threaten national unity under the Crown by their continuing allegiance to the Pope in Rome. For the greatest part, however, the English people accepted the argument that without a single religious and moral authority their common life would suffer from spiritual incoherence and social anarchy. How much blood and treasure they were prepared to invest in maintaining this authority was rarely tested. By the time the First Fleet arrived at Sydney Cove in late January 1788, the Church of England had endured and survived many conflicts and controversies, and remained secure as the “established” church. In his Reflections on the Revolution in France published in 1790, the English philosopher Edmund Burke (1729–97) contrasted the orderliness of English life with the chaos of French society. The Church of England was a key component in his account of the differences and their consequences. 24

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The majority of the people of England far from thinking a religious national establishment unlawful, hardly think it lawful to be without one… They do not consider their Church establishment as convenient, but as essential to their State; not as a thing heterogeneous and separable; something added for accommodation; that they may keep or lay aside, according to their temporary ideas of convenience. They consider it as the whole foundation of their constitution, with which, and with every part of which, it holds an indissoluble union. Church and State are ideas inseparable in their minds, and scarcely is the one ever mentioned without mentioning the other.

It was routinely argued that the state assumed a certain religious character because it had established a national church and, therefore, had more than a temporal interest in its citizens. It was unremarkable, then, that the chaplain appointed to the colony in New South Wales was the Reverend Richard Johnson (1753–1827), an Anglican clergyman. After arriving in Sydney, he conducted public services according to the rites contained in the Book of Common Prayer. The benefits of Anglican Christianity were extended to all, whether or not they were members of the Church of England. The Anglican ascendancy in New South Wales had been established although its long-term security was already under threat from religious, social and political developments in Europe. The rise of “national” churches in England and elsewhere in Europe had created new problems for both church and state. When states insisted on all their citizens adhering to one religion (meaning one denominational tradition) and demanded that they embrace a religious establishment, internal discord and external hostility soon followed. If there was to be only one faith, it was not surprising that individuals and communities were prepared to kill to ensure it was, by their reckoning, the “true” faith. From the mid-1500s, Europe was divided by warring religious confessions, which continued for more than a century. Religion and nationalism proved to be a volatile combination. It was only when the Treaty of Westphalia brought stability to Europe after 1648 that political concerns and religious aspirations were separated for the good of both. Thinkers like Michel Eyquem Montaigne (1533–92) and Pierre Bayle (1647–1706) had already tried 25

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to show that sins against God, such as heresy and blasphemy, did not justify sins against men, such as the Crusades or the Inquisition. Furthermore, the state was not in a position to distinguish religious truth from falsehood or to commend one religion while condemning another. It had neither the mandate nor the competence to do so. Furthermore, the use of coercion to require submission to certain doctrines and customs was antithetical to the goals for which religion strived and the church existed. But just as momentum was gathering for a rethinking of the relationship, there was a new element with which both church and state had to contend. Seasoned by modernist thinking, Christian scholars began to argue that nations and states were divinely ordained and were an essential feature of the Kingdom of God on earth. It was further asserted that God could, and would, use such states to achieve his sovereign purposes. Monarchs and politicians began to talk of “godly nations” receiving a divine calling or possessing a heavenly mandate to promote Christianity and, of course, the attendant benefits of European civilization. Rather than separating church and state, the former was to be absorbed so as to create the church-state which thereby deified government. The church-state expected ultimate loyalty and even demanded human sacrifice to preserve its existence. Dying in the state’s service whatever the justness of the cause had a quasi-religious quality and purportedly conferred nobility. This shift gave a range of essentially political institutions pretensions to inherent moral rightness as Friedrich Schleiermacher (1768–1834), a pioneer of modern Protestant theology, emphasised on the eve of Prussia’s liberation from Napoleonic dominion in 1813. God has imparted to each its own nature… In rising up to cast this [domination] utterly off and to keep it away from us for the future, we become once more a kingdom that trusts in the Lord; for in him is that nation trusting which means to defend at any price the distinctive aims and spirit which God has implanted in it, and is thus fighting for God’s work; and only as we succeed in this can we become as a tree planted by the waters, that fears not when heat cometh, and which brings forth its own fruit without ceasing. [emphasis added] 26

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This sentiment was characteristic of the pre-eminent European school of political thought from the eighteenth to the late nineteenth century. From the rise of French nationalism under Napoleon Bonaparte in 1795 until the wave of revolutions that swept France, Germany, Austria, Italy, Ireland and Russia in 1848, the common political demand was for national unification and political independence. In the major European states from 1848 until 1890, the monarchy and the ruling class were glorified as the embodiment of the nation. This movement enshrined the notion of “elite pragmatism” where political elites, almost divinely appointed, controlled national destinies. Love of country became an important social and military concept that was embraced with religious fervour. This was reflected in the popular hymn ‘I Vow to Thee My Country’ written by British diplomat, imperial apologist and occasional poet Sir Cecil Spring-Rice (1859–1918) after receiving a oneline telegram from the Foreign Office in London advising that he was no longer Britain’s ambassador to the United States. I vow to thee, my country – all earthly things above – Entire and whole and perfect, the service of my love; The love that asks no question, the love that stands the test, That lays upon the altar the dearest and the best; The love that never falters, the love that pays the price, The love that makes undaunted the final sacrifice.

The second verse mentions “another kingdom” – plainly the Kingdom of God proclaimed by Jesus – but it appears to be complementary rather than a contrast to the nation-state. It was not surprising that the sentiment “my country right or wrong” was widely held as states began to expand their spheres of activity and increase their power to act within them. By 1900, the modern nation-state was a firmly entrenched political concept. Most church leaders acknowledged and even celebrated its role in the evolution of human affairs. The American Protestant theologian Richard Niebuhr (1894–1962) noted that “the modern nation is the human group of strongest human cohesion, of most undisputed social authority and of most clearly defined membership… it has been since the seventeenth century, the most absolute of all human associ27

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ations.” While the church had little choice but to observe the emergence of these political trends, it remained free to determine the relationship it would maintain with individual states. In most overtly Christian nations, the churches generally opted for a close relationship with some organic ties. Being hierarchical in arrangement and conservative in social outlook, the churches tried to be socially inclusive organisations that would seek to exert a spiritual influence upon the whole of life through a system of integrated social and political interactions. To accomplish its objective without creating an intolerable strain between its ideals and reality, the church tended to compromise by adapting its beliefs and convictions to the relativities and exigencies of living in an imperfect and increasingly secular world. The need to make such a choice, and to identify the theology that would stand behind it, became acute after the first world war of 1914–18 when there was widespread resentment of the major churches (on both sides of the conflict) for energetically supporting the call to arms in a conflagration that led to so much death and destruction. When emphasis shifted from defending individual nation-states to collective security with the establishment of the League of Nations, the churches tended to realign their support. Although the league was committed to national self-determination, the idea of an overarching community of nations appeared to be consonant if not consistent with Christianity’s insistence on the dissolution of ethnic and social divisions through adherence to the Gospel which proclaimed humanity’s unity before God. The churches repudiated the nationalism that had been implicated in the first world war even as they questioned what remained of colonial empires consisting of subjugated peoples. But a continuation of the movement between pessimism and optimism concerning the state and its conduct, implicit in the writings of St Paul and St John, was reflected in different levels of Christian political participation and social cooperation. Pessimism about the nation-state was exacerbated by the rise of totalitarian government in Spain, Italy, Germany and the Soviet Union during the 1920s and 1930s. Fascist and communist regimes sought to control both Protestant and Catholic churches by demanding that they recognise formally the incumbent regimes, accept intrusion into their internal affairs, agree to the regulation of vocational training and the28

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ological education, and official registration of clergy. Notwithstanding this interference, most churches strived to retain their independence and autonomy, and to speak and act prophetically against the excesses of the state both at home and abroad. As with wars in the Sudan (1885), South Africa (1899–1902), China (1900–01) and in Europe (1914–18), the outbreak of hostilities in 1939 created a common national cause which brought together church and state in Australia. Echoing depictions of the first world war as a holy struggle against German apostasy and its distorted quasi-religious view of the state, the second world war of 1939–45 was portrayed as steadfast resistance to state-sponsored tyranny and the moral evils of National Socialism. As military preparations were accelerated, clergy encouraged their congregations to make every sacrifice and effort consistent with Christian principles which the country might demand. But there was none of the innocent enthusiasm with which Australians greeted the prospect of war in 1914 and few clergy believed that the hostilities would lead to a “revival of religion.” Following the entry of Japan on the side of the Axis Powers on 7 December 1941, it was only ardent pacifists who remained opposed to military warfare or were reticent about the purpose for which the war was being fought. It was generally accepted that the second world war was a just war and the state had the necessary authority to oblige its citizens to defend the nation. Given the extent of devastation in territory occupied by Germany, Italy and Japan, there was little opposition to the requirement that citizens should bear arms and take human life. In these dire circumstances the churches looked to the state to preserve the personal freedoms and individual liberties that underscored religious life and worship. As for the standing of states and the conduct of diplomacy, the Uniting Church historian Professor Ian Breward has pointed out: “the outbreak of another global war caught many Australians unaware and exposed the hollowness of much of the inter-war thinking about international affairs in all the Australian churches.” It was the existence of perverted views of the state that had again led to war. And yet, the churches had little new to say about the nature of political community or international statecraft. In the immediate post-1945 period, the churches played a leading role in the continuing trend towards multilateralism that led to the steadily increasing influence of the United Nations. National chauvin29

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ism and state pride were deemed to be the principal causes of global tension and armed conflict. Having seen ample evidence of the destructive effects of the unbridled nationalism promoted by states determined on imposing their will on neighbouring peoples, the churches supported the evolution of a body of international law and the creation of the institutions required to enforce it. The emergence of an international community and the transcending of national boundaries meant that the relationship between many churches and states remained ambivalent. At the same time, the influence of the churches in the public life of most western nations started to fade. The number of people who belonged to churches as a proportion of the population steadily decreased during the 1960s while the level of participation in worship began to decline. Just as the churches may have felt less of a need for state sanction or sponsorship, many states believed they could ignore the churches. After all, they represented a substantially reduced element of the population. As humanist ideology overtook religious conviction as the prevailing sentiment in the ruling classes of most western nations, a new tension emerged as triumphant secularists sought to undermine persisting Christian influences on social and political life while moving to prevent the church from mounting a rearguard action to recover lost ground. By the 1980s, the church was facing decline in most western nations with the notable exception of the United States where it received the least amount of formal and direct state assistance. The convenient marriage of church and state in the Constantinian age had ended in a rather messy divorce.

• From the foregoing survey it is apparent that there is no definitive theological position on the church’s relationship with the state in any Christian tradition despite centuries of near constant deliberation. The different positions held by Christians appeal to different parts of scripture, emerge from different cultural settings, interpret national history in different ways, reflect different views of church and state, and offer different perspectives on the operation of providence. Of course, both the church and the state are themselves constituted differently in almost every part of the world. In some places religious 30

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beliefs are more widely held and the church is much more influential. Elsewhere religious pluralism means a plethora of views are held and consensus among faith communities is impossible. In these settings, the state is more likely to be dominant. In sum, prescribing the features of a healthy relationship between church and state relies heavily on circumstances and the specific political, legal and social conditions under which church and state interact. In defence of the church it must be said that its sacred texts do not actually provide definitive answers to many of even the most pressing questions. As the eminent American theologian Norman Gottwald has concluded: “There is no overarching systematic statement in the Bible of the relations between the religious community and the political community, either in terms of theory or in terms of institutional accords.” The Bible provides an encouragement towards forming community but does not offer a blueprint for the temporal character of that community or define its moral identity in precise ways, especially in the matter of interacting with secular authority. The most that can be said biblically is the state is simply the means to an end in the divine ordering of the world. It does not possess absolute authority or grounds for claiming ultimate loyalty. States exist to provide safety and security for those for whom they have assumed responsibility and care. Within a state, the benefits of an ordered framework for achieving an effective and efficient social, political and economic life require a level of compliance and cooperation, whether freely offered or coercively acquired. Beyond the state, the exertion of sovereignty and the promotion of nationalism are intended to add to human happiness. The state does not have an existence or a value apart from the goals it is intended to serve. It can be said with some certainty, however, that there is nothing in the Bible or in Christian history which justifies or encourages the fusion of church and state. It harms religion and distorts the church. While it might be appealing to Christians starved of social or political influence to embrace the state, merging church and state into a single entity would not deliver what its advocates promise. It also creates and confirms national distinctions that the Christian message seeks to dissolve in the cause of uniting all of humanity under God. This insight has been more apparent to those outside the church than within it, as the following chapter will show. 31

CHAPTER 2

One wall, two people?

H

uman history reveals a steady evolution in social, cultural, economic and political organisation towards the modern nation-state. Although there is no universally agreed set of criteria for what constitutes a “nation,” it is usually considered to be a discrete group of people with four common characteristics: language, territory, economic life and mental make-up (meaning a sense of solidarity and a common culture). The nation is really just another level of association that in most places began with the local, proceeded to the provincial, and finally culminated in the nation. The “state” is more difficult to define. It was not until the late sixteenth century that the word came to acquire something akin to its present meaning. It is widely considered to be a legal and political organisation which rules supreme within a specified territory with the authority to require obedience and loyalty from its citizens and the power to secure their cooperation and compliance. In democratic societies with elected governments, the state claims the right to pass laws and make decisions in relation to all matters bearing on the public interest. There are times when the state will need to restrict individual freedoms and personal liberties in pursuit of the common good. “Nation-states” are simply the coincidence of the nation and the state. States can exist without a nation or spread across several nations. Nations can be coterminous with the population of one state (as in Australia); bound together with other nations to form one state (United Kingdom comprising Scotland, England, Wales and Northern 32

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Ireland); or, be divided between several states (such as the Kurdish nation which is spread across northern Iraq and Turkey). The modern state emerged when the authority and power of monarchs or emperors was circumscribed or superseded by oligarchies or parliaments claiming some kind of mandate to govern derived from those for whom they had accepted legal and political responsibility. But in wanting to ensure that tyrannical monarchy was not replaced by the dictatorial state, philosophers posed a number of questions: how is the state’s mandate defined? What kinds of things is it permitted to do? What are the limits of its authority and the extent of its power? Are there areas of life in which it has no legislative rights or even a mandate to interfere? The desire to avoid one form of despotism being replaced with another while anarchy and oppression were kept at bay meant the answers revolved around the notions of responsibility and restraint. In 1651, the English philosopher Thomas Hobbes (1588–1679) published a revolutionary political commentary on western political life. He gave it the title Leviathan. Two years before its release, King Charles I (1600–49) had been tried and executed for the political crimes of tyranny and treason. England was declared a republic in 1649. To avoid the dreadful violence and chaos which had accompanied the English Civil War (1642–48) and to prevent the war of “every man against every man,” Hobbes argued that individuals needed to surrender some of their discretion to a supreme authority – the great Leviathan of the “state” – which could ensure that competing or conflicting ambitions are harmonised or, at least, reconciled. The scope of state control included the realm of religious expression in which Hobbes distinguished between public practice and private belief. He argued that all citizens were bound to respect publicly authorised religion for the sake of civil order and social harmony. This extended to Christians who were exhorted “to tolerate their Heathen Princes.” For Hobbes, the “word of the Sovereign” had priority over the “word of God” although monarchy itself was not indispensable. The institutional form of the state – monarchy, oligarchy or democracy – did not matter as long as its authority was absolute and its power beyond challenge. It was not, of course, accountable to anyone or anything other than itself. 33

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The purpose of toleration in Hobbes’s thinking was to preserve civil authority rather than to honour individual autonomy. His view was based on the realisation that freedom of religious expression would prompt demands for freedom of religious association which would, in turn, create an expectation for the recognition of other freedoms of association. But what prospects remained for a sincere spiritual life when religion was dominated by the state? Hobbes concluded that public expressions of religion requiring personal conformity had no value in terms of assisting an individual to attain salvation. “True religion” could not be imposed by either the church or the state. Salvation involved faith which was achieved by God’s gracious “election” of the individual. To Hobbes, it had nothing to do with membership of a particular church or with the public utterance of certain doctrinal propositions. Civil religion was a function of political community and was essentially disconnected from conscience. However, private expressions of religion which touched on “internal and invisible matters” were significant. Hobbes did not, therefore, object to the principle of religious diversity within a particular state because it allowed him to argue that individuals could develop and pursue their own religious beliefs so long as they did not harm or hinder the commonwealth. In effect, Hobbes encouraged public uniformity and private diversity as a political goal and a religious ideal. The philosopher John Locke (1632–1704), who also experienced the upheaval of the English Republic (1649–1660), initially shared Hobbes’s view on the necessity of uniformity as an antidote to the potentially disastrous consequences of religious diversity. In his view, religious conscience had no rights against established authority. But by the late 1660s, he changed his stance and advocated relaxation of state control over the public expression of religious beliefs. He did not believe that any public body – whether church or state – possessed infallible knowledge of true religion. He pioneered the principle that states ought not to coerce individuals in matters relating to religious belief and liturgical custom. Indeed, he turned Hobbes’s argument on its head: civil disorder was caused by the imposition of religious uniformity. In 1689 he published his first Letter Concerning Toleration. Locke was unequivocal: “there is absolutely no such thing, under the Gospel, 34

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as a Christian Commonwealth.” This being so, he tried to demarcate the separate spheres of church and state: I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that live between the one and the other… The commonwealth seems to me to be the society of men constituted only for the procuring, preserving, and advancing their own civil interests… [The] Church itself is a thing absolutely separate and distinct from the commonwealth. The boundaries on both sides are fixed and immovable. He jumbles heaven and earth together, the things most remote and opposite, who mixes these two societies, which are in their origin, end, business, and in everything perfectly distinct and infinitely different from each other.

Locke’s work drew on the idea found in the thirteenth-century writings of St Thomas Aquinas (1224–74) that individuals with moral autonomy had to heed the inward directives of conscience. For Aquinas, the church had a responsibility to correct those in error. The Protestant reformer Martin Luther (1483–1546) disputed the latter view on the basis of his commitment to Holy Scripture as the sole arbiter of doctrine and custom. The Swiss theologian John Calvin (1509–64) taught that the believer’s conscience could not be bound by the church. Therefore, civil rulers had no authority to make laws “concerning religion and the worship of God.” Calvin believed, however, that governments were expected to prevent idolatry, blasphemy and “other public offences against religion.” In the hands of the English puritan William Perkins (1558–1602) the exclusionary elements in Calvin’s polity were taken to their extreme: because only God could make laws requiring conscientious obedience, divine law always had priority over temporal law. Such a position severely constrained the authority of civil rulers and had the potential to render them impotent. It was a view that did not gain wide acceptance. In his Two Treatises of Government Locke distinguished the respective roles of church and state as the basis for preserving religious freedom. Believing that government was derived from the consent of the governed, Locke insisted that the state had no authority to do any35

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thing its citizens did not have the authority to mandate it to do. Because God did not give one person authority to compel others in respect of when and how they should worship, government had no power to demand religious compliance of any kind. Furthermore, he shared Hobbes’s view that compulsion was inconsistent with the nature of faith and would not guarantee salvation: Whatsoever is not done with the assurance of faith, is neither well in itself, nor can it be acceptable to God. To impose such things, therefore, upon any people, contrary to their own judgement, is, in effect, to command them to offend God.

Governments must therefore tolerate all kinds of religious practices as long as they do not breach the peace or infringe the rights of other citizens. Locke did not rule out state support for religion but this did not involve formal establishment. He held that the church was a “free and voluntary society.” Its members and associates themselves determined the nature of their constitution and common life. When Christianity became a “national religion” by political decree, Locke contended that it became “the cause of more disorders, tumults and bloodshed, than all other causes put together.” In many countries where his work was translated and read, there was an established church and a state religion. His words inspired action. The movement to disentangle church and state had supporters on both religious and political grounds. They were prompted by concern for the health of the church and the well-being of the state. It is noteworthy that neither Hobbes nor Locke professed atheism. Locke went as far as to say that atheists were a threat to civil society because they would not be bound by “promises, covenants and oaths” and should be “shut out of all sober and civil society.” But as political philosophy evolved in the eighteenth century under the influence of the Enlightenment, religious ideals were questioned and the churches denigrated. The growing appeal of atheism added an element of urgency to the disestablishment campaign. If there is no God or providential being and the world’s affairs are propelled by physical causes rather than spiritual forces, religion should be eradicated from public life and the churches denounced for perpetuating ignorance. In this context, why 36

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should religion be given any political credibility or the churches receive any civil privilege? The Evangelical theologian Alister McGrath claims the heyday of atheism and its civic influence began with the storming of the Bastille and the commencement of the French Revolution in July 1789. He tracks the steady drift from opposition to the claims and pretensions of a corrupt church during and after the Reformation to a vigorous programme attacking and discrediting the central tenets of Christianity by political groups and scientific assemblies. Although there was some clerical support for the first phase of the Revolution as priests asserted the harmony of religion and liberty, it was soon clear that atheism was to be the Promethean liberator which would guarantee the Revolution’s continued progress and ultimate success. To that end, a “cult of reason” was promoted in November 1793. Religion was suppressed and the church oppressed. The Revolutionary leaders alleged that Christianity was an impediment to social advancement and political progress and the church an obstacle to economic change and democratic reform. Denouncing religion as nothing more than irrationality and superstition would, it was claimed, encourage the embrace and extension of the Revolution’s exalted ideals of reason, liberty and fraternity. But with God abolished and religion outlawed, what would take their place? The secular state and political principles would become the new god and the new creed. But this project was forestalled when Napoleon Bonaparte seized national leadership and revived Catholicism for his own purposes. But the secularising mood was in evidence elsewhere as the prospect of a religionless society continued to have broad appeal. Atheism was a driving force. From the late nineteenth century, atheism was bolstered by the political philosophies of Ludwig Feuerbach, Karl Marx and Sigmund Freud and the claims of the natural sciences, principally biology and astronomy, to have explained the origins of human life. There were also distinct echoes of atheism in diverse areas of highly developed western culture: the poetry of Alfred Tennyson, the plays of George Bernard Shaw, the novels of Thomas Hardy and the philosophy of Georg Hegel. Atheism was becoming more accessible and acceptable. Its rise was coupled with what Alister McGrath refers to as “a failure of religious imagination” in the Victorian era: “God increasingly became 37

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an absence in the popular imagination, no longer able to resonate with the creative energy of the day.” Religion was depicted as socially stifling and morally suffocating. It demanded compliance to superstitions which deprived individuals of the liberty they needed to enjoy natural beauty and the inclinations of their heart. McGrath writes: God was the great oppressor of the human soul, creating a sense of overwhelming desire within humanity, yet offering nothing by which that longing might be satisfied - except things deemed to be immoral. Having created such desires in the first place, God now condemned humanity to a wretched and miserable life of frustration and dissatisfaction.

But freedom was still possible. It simply required courageous liberators. Germany was able to provide one such man and his writings were welcomed by many. The philosopher Friedrich Nietzsche (1844–1900) declared bravely in 1882 that “God is dead.” In his book Joyous Wisdom Nietzsche tells the story of a madman who goes searching for God in a marketplace. Although it is morning, he lights a lantern to aid his search. As he moves about the marketplace, the man cries: “I am looking for God! I am looking for God!” As most of the people he encounters do not believe in God, they refuse to take him seriously but cannot quite ignore him. Mockingly they ask him whether God is lost, hiding, afraid, absent or emigrated. “Where has God gone,” he cries. “I shall tell you. We have killed him – you and I. We are his murderers.” He then announces that “God is dead! God remains dead.” When those in the marketplace stare at him in astonishment, the man smashes his lantern on the ground. He walks away saying: “I have come early… my time has not yet come.” Although God has been killed by rationalism and science, Nietzsche says, humanity does not recognise the magnitude of its deed: “they have done it themselves.” Nietzsche’s atheism was a radically new kind. It was confident, defiant and aggressive. Nietzsche regarded God as just another legacy of an unscientific past that humanity would soon forget. Therefore, Christianity had to be denounced and its vestiges abolished. The project to separate church and state was philosophically compelling and politically urgent. 38

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In the twentieth century, the promotion of atheism gained ground. It drew on diverse sources and took concrete form in the atheist state – the Soviet Union. The Marxist-Leninist creed of the Bolshevik revolutionaries proclaimed the necessity of atheism for a truly socialist state. When some among the Russian people had their class consciousness raised but persisted with their religious beliefs, they were the subject of coercion and persecution. The state insisted on “re-education.” Brainwashing was the state’s version of Christian evangelism without respect for individual autonomy or a willingness to honour personal choice. In the west, intellectuals and radicals promised that human society would be infinitely better off when religion was banished and churches closed. In the lyrics of John Lennon’s 1971 composition “Imagine,” an ideal world has “no heaven… No hell below us, above us only sky.” McGrath explains: “by eliminating religious, political, social and economic differences, humanity would finally be able to achieve unity.” The growing appeal of atheism was also associated with a perceived “crisis of belief ” in the western mind. Within liberal Protestantism, “religionless Christianity” and “secular theology” were promoted in the place of trinitarian orthodoxy. The so-called “Death of God” movement sought to dispense with myths and miracles in a more scientifically nuanced recasting of the Christian story which promoted a near formless deity too transcendent to be described in words and too immanent for divine acts to be distinguished from those of nature. Such a God proved unappealing to the senses and unworthy of worship. The practical result of “secular theology” was an end to religious nominalism. Those who remained were the convicted and committed to the traditional beliefs that were becoming less appealing to a more secular society. These developments within the discipline of theology also reinforced the view that religion was a largely personal matter involving private beliefs devoid of public consequences. The support of some theologians for the relegation of religion to non-public matters was another argument for disentangling church and state. It was unreasonable to require Christian behaviour from a society whose citizens were largely without Christian beliefs and denominational belonging. Many Christians were sympathetic to this view. The Christian life demands an alignment of believing, behaving 39

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and belonging with certain moral values and ethical principles. The distinctiveness of Christianity is imperilled if people are obliged to act like Christians when they do not believe in Jesus nor belong to the community he founded. It is for these reasons that much of the energy for separating church and state came from among those with religious beliefs and affiliations. They wanted to ensure the church’s own life and witness were pure and persuasive before investing their energies in gaining influence with the state or seeking its material support. The most vehement advocacy of religiously inspired non-establishment is to be found in the United States. After the European Wars of Religion there was widespread questioning in the newly founded American colonies of the notion that a community needed to settle on one publicly endorsed religion if it was to avoid anarchy and violence. Most Americans were not convinced that an established church would or even could underpin national cohesion, political order and social harmony. Those familiar with the history of the North American colonies knew that the first American settlers had sailed across the Atlantic to avoid compliance with the tenets of a state religion in Europe. The majority was opposed to established religion and wanted to see some clear separation of church and state. The earliest mention of a “wall of separation” is found in the writings of Roger Williams (1603–83), a former Anglican clergyman and religious dissenter. He came to despise the claims and pretensions of the established Church of England and sought religious freedom and liberty in a new land – America. But he was banished from the Massachusetts Bay colony in 1636 for his unbending hostility to anything that resembled theocracy and his advocacy of the rights of native Indians. After he founded the Rhode Island colony, he joined the Baptists and wrote The Bloody Tenet of Persecution in 1644. Taking the form of a dialogue between “Truth” and “Peace,” it was a vigorous plea for recognising the liberty of individual conscience. For Williams, there was a “wall of separation” between the “garden of religion” and the “wilderness” of temporal government. Williams’s “wall” protected the garden from the wilderness not the other way around. Williams’s metaphor was rediscovered by Isaac Backus (1724–1806), a New England Baptist, who was a contemporary of Thomas Jefferson (1743–1826). Backus was convinced that an established church would 40

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never protect religious dissent. It also harmed religion. His position was echoed in the writings of the great Quaker leader William Penn (1644–1718) who warned against “defeat[ing] God’s work of grace, and the invisible operation of his eternal Spirit, which alone can beget faith, and is only to be obeyed, in and about worship and religion, and attribute[ing] men’s conformity to outward force and corporal punishments.” By this time, church leaders and politicians in America advocated separation; the former for protection, the latter to avoid interference. Although there were American Anglicans who sought to preserve their privileged status as members of the established church, the majority desperately wanted to avoid a replication of the British situation in America although it was still part of the empire under King George III (1738–1820). The Anglican establishment effectively ended with the War of Independence (1775–82). When the American colonies became states and sought to regulate their own affairs, the question of establishment and religious freedom occupied the minds of most legislators. A number of possible answers began to emerge from a concurrent philosophical debate about the powers and prerogatives of government in relation to the freedoms and liberties of individuals. Strongly influenced by the same ideas that shaped revolutionary thinking in France, many Americans were committed to the belief that individuals had inalienable rights that could not be violated by government or overridden by the state. The essence of these conversations was reflected in the Preamble to the United States Constitution. There is no mention of God or religion. Individuals and their flourishing are the focus. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our prosperity, do ordain and establish this Constitution of the United States of America.

Government under the new United States Constitution commenced in March 1789 – four months before the revolution in France. In the same year, the Congress approved ten amendments to the Con41

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stitution to limit the power of government and protect individuals against state tyranny. When ratified by the states these amendments became the Bill of Rights. Thomas Jefferson thought that such a document was “what the people are entitled to against every government on earth.” The First Amendment read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof… [No] religious test shall ever be required as a Qualification to any Office or Public Trust under the United States.” James Madison (1751–1836), who would become the fourth president of the United States, was a member of the Virginia Convention which met to debate the text of the First Amendment. Madison did not believe this particular amendment was needed because religious diversity would be the guarantee of religious freedom: “for where there is a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.” But Madison’s supporters wanted a federal counterpart to the prohibitions on establishment in state legislation. They feared the day when one group might be able to establish a national religion and demand payment of monies to support their activities. Madison could see their point. But he also warned of the damage done to religious faith by establishment in noting that: experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries the legal establishment of Christianity has been on trial. What have been its fruits? More or less in all places, pride and indolence of the clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to ages prior to its incorporation with the civil policy.

The ratification of the ten amendments in the form of a Bill of Rights was completed by December 1791. Despite revisionist assertions, Americans certainly did not embrace a “godless Constitution”. Today most remain content with 42

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their nation’s constitutional arrangements, including the majority of Protestants and Catholics. Theodore Meyer of the Missouri Lutheran Synod commented during the 1930s that: the freedom of the Church, lost under Constantine, was not even regained in the Reformation. The Church of Germany – and of all Protestant countries in Europe – became, and to this day has remained, a part of the State’s machinery. Not until the United States of America was established did the world see a land in which this right and natural and Scriptural relation between Church and State exists: separation.

In what appears almost like boasting, Father John Cogley remarked in 1947: We have no Church–State problem in the classic sense. Our system of separation, so it seems to me, is as close as any people can come to resolving the inescapable difficulties in trying to give to Caesar what is Caesar’s and to God what is God’s… It works. The rights of the Church are scrupulously observed in the American courts; the needs of the State are recognized and honoured by the Church. I cannot think of any place on earth than the United States where it is easier to give God what is his. Nor can I think of a place where the State asks so little of what the religious man cannot give. When it does, the religious man can make a conscientious appeal and the State will listen… Where is the Church in a healthier condition?

The existence of such confidence in some quarters is not to suggest, however, that all Americans believe there is a settled relationship between church and state or that everyone agrees on how the First Amendment is (or ought to be) interpreted. There is continuing tension between churches which defend their actions on the basis of religious freedom and secularists who claim that any element of state support implies establishment. There is also a continuing campaign to achieve constitutional freedom from religion by excluding, for instance, religious symbols from public places or prayers in official ceremonies. The decision of a judicial ethics committee to remove 43

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from office the Chief Justice of Alabama, Judge Roy Moore, in November 2003 after he refused to remove a monument to the “Ten Commandments” in the foyer of the Alabama Supreme Court building is an indication that church–state relations in the United States continue to be flashpoint for political and legal conflict. France is the only western nation to have become avowedly secular. The strict secularising of public life and state institutions was not achieved until 1905 after a century of ideological manoeuvring on the part of the state. When Napoleon Bonaparte (1769–1821) became first consul in 1799 he was keen to fashion a relationship with the church that would advance France’s internal stability, subvert royalism and strengthen his own position. He signed a concordat with the Papal Secretary of State in 1801. It achieved Napoleon’s propaganda aims by extending formal recognition of Catholicism as “the religion of the great majority of French citizens” and providing financial support for Catholic ministry and worship. Just over a century later, prompted by a number of political controversies, the French parliament ended the Napoleonic settlement by terminating the 1801 concordat and precluding state association with Protestantism and Judaism. It was the triumph of anti-clericalism. The legislation stated: 1. The Republic assured liberty of conscience. It guarantees the free practice of religion, subject only to restrictions enacted below in the interest of public order. 2. The Republic neither recognizes, subsidises, nor provides salaries for any religion. Consequently, from the first day of January next after the promulgation of the present law, all expenses related to the practice of religion shall be suppressed in the budgets of the state, the departments, and the communes… Public religious establishments are hereby suppressed.

France remains one of the few countries to have legislated for a strict, formal and legal separation of church and state. Within Anglicanism, the modern movement for greater separation gained momentum with the Anglo-Catholic revival of the 1830s and its vehement opposition to English Erastianism (the ascendancy of the state over the church in ecclesiastical matters), the disestablishment of the Church of Ireland in 1870 and the impending disestablishment of 44

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the Church of Wales (the legislation was passed in 1914 and took effect in 1920). There was a general desire for a return to the pre-Constantine separation of church and state. In a series of lectures delivered in 1910, the eminent British historian Walter Hobhouse remarked: Long ago I came to believe that the great change in the relations between the Church and the world which began with the conversion of Constantine is not only a decisive turning point in Church history but is also the key to many of the practical difficulties of the present day, and that the Church of the future is destined more and more to return to the condition of things somewhat like that which prevailed in the ante-Nicene Church; that is to say, that instead of pretending to be coextensive with the world it will confess itself to be a Church of the minority, will accept a position involving a more conscious antagonism with the world, and will, in return, gain in some measure its former coherence.

Father Neville Figgis, a member of the English Community of the Resurrection, explained in 1913 that what concerned him: is not so much whether or no a religious body be in a technical sense established, but whether or no it be conceived as possessing any living power of self-development, or whether it be conceived as a creation of the State, or if allowed a private title is to be held rigidly under the trust deeds of her foundation, thereby enslaved to the dead… In other words, is the life of society to be conceived as inherent or derived? Does the Church exist by some inward living force, with powers of self-development like a person; or is she a mere aggregate, a fortuitous concourse of ecclesiastical atoms, treated it may be as one for the purposes of convenience, but with no real claim to a mind or a will of her own, except so far as the civil power sees good to invest her for the nonce with a fiction of unity?

Figgis was also troubled by “the notion of a single all-absorbing authority, the doctrine of the centrality of political power.” The battle of the twentieth century was, he argued, “the battle of small societies to maintain their inherent life as against the all devouring Leviathan of 45

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the whole.” The dean of St Paul’s Cathedral in London, Ralph Inge, shared his view. He concluded an attack on what he called “theocratic imperialism” by exhorting the Church to make a decision. I do not think that the political power of the Church is often used for purely religious and moral ends… it is notorious that political Christianity excites bitter hatred against the Church, such as is almost unknown in countries where there is no such organisation… The choice for the Church is between political power and moral influence.

Bishop Charles Gore, a social justice advocate, was especially critical of established Christianity: Whether in the civilised Roman Empire or in half-barbarous tribes or in modern nations, the sort of Christianity which claims to embrace the whole of society, which it costs nothing to profess and into which children are baptized practically as a matter of course, appears to be as audacious a departure from the method of Christ as well can be conceived.

Furthermore, European society had changed politically and legally since the Reformation. Gore pointed out that there was no longer “a common ecclesiastical authority presiding over the whole of human life.” The reality of religious pluralism had to be faced. For an established church obliged to reflect the character of national life, such diversity inevitably meant the kind of compromise and syncretism he could not accept. With the rise of totalitarian governments after the first world war, there was also growing realisation that established churches were easily subsumed by the state, as happened to the German Church after Adolf Hitler became chancellor in January 1933. The Nazi leadership demanded that, as part of a church “nationalisation” programme, all clergy were required to take an oath of loyalty to the Fuhrer. The merger of the 29 churches embraced by the German Evangelical Church Federation into one Reichskirche was the precursor to Aryanising the German Church and promoting the cult of the omnipotent and divine-sanctioned state. This episode was a clear example of the church 46

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being captured by the state because the conditions existed for it to do so long before the ideology arose willing that it be so. By 1945, it was apparent to any student of history that where Christianity had achieved social or cultural ascendancy, the church had also sought political authority and economic privilege which have inevitably corrupted its message and infected its life. Rather than Christianity being a religion that championed individual liberty and promoted personal discretion, the church has consistently imposed restraints and demanded compliance. The French theologian Jacques Ellul lamented that “whenever the Church has been in a position of power, it has regarded freedom as an enemy.” Although power is seductive and many organisations lose sight of their origins and objectives in an effort to retain power, the church is called to resist the allure of power for the sake of its message, which is most clearly proclaimed from a position of powerlessness. Experience shows that it is difficult to trust the church to be the church – either Roman Catholic or Protestant – when it gains temporal power. History contains countless stories of Christian sacrifice and altruism together with many instances of homicide and tyranny when the church has gained the authority and power to order temporal things and compel earthly obedience. It has exchanged conviction for compulsion, made mandatory what needed to be voluntary if virtue were to flourish, created monolithic societies deprived of the blessings of diversity, and attempted cultural unity for the sake of bureaucratic control. Whereas authentic Christianity accepts that human society is enriched by variety and acknowledges that people will live and think differently, a church with totalitarian tendencies overlooks the possibilities inherent in diversity and strives to achieve not unity but uniformity through compliance. It is for these reasons that Christians must be encouraged to allow some distance between the church and the state – for the church’s good, if nothing else.

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CHAPTER 3

Whose wall?

T

he evolution of church–state relations in Australia reflects broad trends discernable elsewhere in the western world. Following European settlement in 1788, the pioneering clergy were a succession of Anglicans. They enjoyed substantial privileges from the state. They presumed this flowed from the Church of England being formally established throughout the expanding empire. But was the Anglican Church ever “established” in Australia? In a case regarding Anglican liturgy heard by the High Court in 1949, Justice Dixon said that: “notwithstanding judicial statements of a contrary tendency, the better opinion appears to be that the Church of England came to New South Wales as the Established Church and that it possessed that status in the colony for some decades.” Dixon went on to explain that with time it was regarded as no longer being established although the progressive steps in its change of status were neither clear nor obvious. The ethnic composition of the colony certainly played an important part. In the early years of the nineteenth century the colonial population quickly grew. By 1828, around 30 per cent of the population was Irish of whom the vast majority were Roman Catholic. Scottish Presbyterians made up a large share of the free settler population. All the major British denominations had dispatched their representatives to Australia by 1830. They intended to play an active part in the life of the new colony hoping to be free of the burdens and exclusions they had endured in Britain. When the governor of New South Wales, Sir Richard Bourke (1777–1855), enacted the Church Act in 1836, the legislation reflected and strengthened what had already developed: religious pluralism. The Church Act embodied Bourke’s earlier observation that: 48

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in a New Country to which Persons of all religious persuasions are invited to resort, it will be impossible to establish a dominant and endowed Church without much hostility and greater improbability of its becoming permanent. The inclination of these Colonists, which keeps pace with the Spirit of the Age, is decidedly adverse to such an Institution; and I fear the interests of Religion would be prejudiced by its Establishment.

Under the provisions of the Act, assistance was given for the recruitment and employment of clergy together with subsidies up to £1000 for church building when congregations raised an equal amount. In effect, to those who had, more would be given. The Anglicans, Presbyterians, Roman Catholics and later the Wesleyans as the larger denominations were the chief beneficiaries of the Act. The Baptists declined assistance under Bourke’s provisions to avoid any hint of worldly compromise or official control. The Anglicans, principally William Grant Broughton (successively Archdeacon of Australia, 1829–36; Bishop of Australia, 1836–47; Bishop of Sydney, 1847–53), were unhappy that the legislation effectively precluded an Anglican establishment in New South Wales. Broughton believed that in a British colony the laws and polity of Britain ought to apply without distinction. He argued vehemently that the privileges and prerogatives enjoyed by the Church of England at home legally extended to colonial dioceses across the empire. Therefore the colonial government should not have extended state aid to “Papists” and “Dissenters” (as Roman Catholics and Wesleyans were then called by Anglicans) when such funding was not made available to them in England. It was not until the passage of separate Acts in each colony – South Australia in 1851; Queensland in 1860, New South Wales in 1862, Tasmania in 1869; Victoria in 1870 and Western Australia in 1890 – that government assistance to church activities, including education, ended. While Bourke’s Church Act was prompted by immediate practical concerns, it did not deal in any way with the bigger philosophical questions it had created. Although the purpose of the legislation was not to disestablish the Church of England, the constitutional status of the church was now unclear. The church had been neither formally 49

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established nor disestablished when Johnson arrived with the First Fleet in 1788. Bourke’s legislation implied that it was no longer established but he had not specifically declared this to be so. The resultant ambiguity was not welcomed by the church or the state. But by the 1890s, Anglicans accepted that there was no future prospect of establishment in Australia and that they would have to compete with the other denominations on what we might call a “level playing field.” Consequently, fears of an Anglican establishment among the smaller denominations faded. Indeed, establishment was no longer an issue of concern for any of the churches. As the legal standing of the churches and the political character of religious life remained unclear, the federation movement gathered momentum in the 1890s. According to Australian historian John Hirst in The Sentimental Nation, two of the leading figures in the Federation movement, Edmund Barton and Alfred Deakin, both believed that “God wanted Australia to be a nation.” They were not conventionally religious men but felt that providence was aiding their endeavour. Many ordinary colonists also believed this to be true. The churches, now at the peak of their social and political influence, held this view as well. But how would divine support for this initiative be reflected in the outcome? The Australian churches combined in support of two clear objectives. The first was formal acknowledgement of religion’s place in the emerging Commonwealth. The second was to stake out their role (as those who spoke for, and acted on behalf of, the divine) in the moral and spiritual life of Australia. The ensuing public consultations and conventions focused on whether and how there ought to be public recognition of God and defining the scope of providential activity in temporal affairs. Those outside the church were committed to protecting the emerging state from partisan denominational incursions prompted by Christian self-interest. Although the churches were no longer concerned about a religious establishment, colonial politicians and lawyers remained wary of Anglican ambitions. It was initially thought that protecting the state from the church could be achieved by making no reference to God in the document that founded the Commonwealth of Australia – the Constitution. Most delegates to the 1897 50

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Adelaide Constitutional Convention believed the absence of a reference to God was consistent with achieving a strict separation of church and state which would effectively preclude establishment. But was this good politics? Excluding God might have dampened popular support for the federation proposal and the draft Constitution. As a conciliatory gesture at the 1898 Melbourne Convention, mention of God was a late inclusion in the draft Preamble with Patrick Glynn proposing the words “humbly relying on the blessing of Almighty God.” When it became obvious that mentioning God was gaining support and would almost certainly appear in the Preamble, Edmund Barton and the Victorian delegate Henry Bournes Higgins wanted to resist any suggestion that the Commonwealth would have power to make laws concerning religion. They believed this power resided, in any event, with the individual states that would make up the Commonwealth. There was, however, a general concern to protect freedom of religion which was apparently most threatened in the Australian context by the prospect of an established church, although none of the churches was committed to achieving established status. It seemed that the best avenue for precluding establishment nonetheless was to guarantee religious freedom. Higgins proposed inserting a new section in the draft Constitution that began with a clause prohibiting any law inhibiting the “free exercise of any religion.” In words that clearly resembled the United States’ First Amendment, it proceeded to prohibit establishment and concluded with an assurance that those without religious beliefs would not suffer discrimination when they sought public office within the Commonwealth. With minor amendment Higgins’s draft became section 116 of the Constitution. It was, like much of the detail in the final document, a compromise that both the advocates and defenders of church and state were prepared to accept for the sake of federation. It was a deft piece of work. But the inclusion of this section was a close run thing and might very easily have not occurred. Indeed, the inclusion of this section within the chapter on the standing of the “states” within the Commonwealth has been described by one commentator as a “historical accident.” The “recognition clause” in the Preamble (shown below in italics) did not say very much of theological significance but the churches were content that at least God was mentioned. The final version read: 51

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Whereas the people of New South Wales, Victoria, South Australia, Queensland; and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one dissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established.

Section 116, which was similar to the First Amendment in being the only section to deal with religion, stated simply: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The Preamble was acceptable to all except hardened secular humanists and Christian exclusivists. It did not, of course, make Australia a secular state in the sense in which we now use that term meaning “without religious doctrines” or “areligious.” Section 116 sought, among other things, to preserve Australia’s religious pluriformity. The provision’s drafters recognised that there would be religious sentiments, hopes and aspirations among the Australian people but they were determined no denomination would be permitted to use political or legal processes to advance its cause nor would any individual be disadvantaged because they had a particular religion or none at all. As a legal provision, section 116 did not attempt to offer an interpretation of the church’s divine privileges and spiritual prerogatives, nor did it attempt to restrain the church in its dealings with the state. It is a minimalist stab at setting some parameters for the interaction that would inevitably occur. Although the section does not specifically guarantee freedom of worship, the Commonwealth could not make any law prohibiting the free exercise of religion. The wording highlights the different conceptions of both society and the state in Australia and United States. Whereas America is a state built on the aspirations of individuals with inalienable rights, in Australia the state is the institutional embodiment of sovereignty and power. It exists to preserve community life in a manner that is consonant with personal dignity and individual 52

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freedom. This intent, in part, explains the limited explicit freedoms found in the Australia Constitution and its concern, in places, to restrain Commonwealth power. There was (and is), however, no impediment to an individual state government within the Commonwealth passing a law to establish a particular religion within that state should it wish to do so. (In the United States, establishment of a religion by a state is precluded by the Fourteenth Amendment (adopted in the years 1866–68) which extended the operation of the Bill of Rights to every state in the Union.) Given the extent of litigation in the United States involving the provisions of the First Amendment over the past 200 years, it is perhaps surprising there have been very few cases before the High Court of Australia relating to alleged contraventions of section 116. The first was Krygger v Williams in 1912. It considered the question of whether the compulsory military training provisions contained in the Defence Act infringed on the free exercise of religion by preventing an individual from fulfilling the obligations of his religion. Justice Barton dismissed the claim as “absurd” and remarked that it was “as thin as anything of the kind that has come before us.” The court’s judgment, which did not contain an expansive interpretation of section 116, was that the operation of the Defence Act did not contravene the Constitution in this respect. A fuller consideration of section 116 was prompted by the Jehovah’s Witnesses Case in 1943. The Commonwealth government determined in 1941 that the sect promoted doctrines that were prejudicial to the war effort. Although its members were not permitted to participate in politics or fight in wars, the sect taught that nations and empires were satanic and needed to be resisted. By an order in council, the Commonwealth seized and occupied the sect’s meeting places and offices. The Adelaide Company of the Jehovah’s Witnesses challenged the Commonwealth’s action in the High Court claiming that it contravened section 116. In his judgment, Chief Justice Latham provided the first comprehensive interpretation of this section of the Constitution. He noted that the diversity of world religions made it “difficult, if not impossible” to define religion but this problem did not affect section 116 which operated “irrespective of varying opinions in the community as 53

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to the truth of particular religious doctrines.” It served “not only to protect the freedom of religion, but also to protect the right of man to have no religion” and covered “acts done in pursuance of religious belief as part of religion” as well as opinions. While there would always be some state interference in the conduct of religious activity given that the state inevitably interferes in many facets of life to subordinate or harmonise competing rights, the key concern for Chief Justice Latham was whether the interference was excessive or “undue.” Because the Australian contribution to the Allied war effort against Germany and Japan was intended to preserve the conditions in which freedom of religion could be enjoyed, the Chief Justice found that “the Regulations were a justifiable infringement of religious freedom.” Although freedom of religion was not considered absolute (the state would be rendered impotent to stop certain religious customs, such as arson or polygamy, which were contrary to civil law if such a freedom were deemed absolute), the Commonwealth had to demonstrate that an infringement of this freedom was “reasonably necessary.” In effect, the court was attempting to balance competing rights and responsibilities. This judgment was the last detailed interpretation of section 116 until a group of Victorian taxpayers decided to challenge the validity of Commonwealth grants to non-government schools in 1981. The plaintiffs argued that because the principal beneficiary of these grants was the Roman Catholic Church, the Commonwealth’s action amounted to an establishment of religion. Known widely as “the DOGS (Defence of Government Schools) Case”, the subsequent legal argument highlighted the significant differences between the US First Amendment and section 116 and the widely held but mistaken belief that the Australian constitution provided a “wall of separation.” As explained in the previous chapter, the phrase “wall of separation” originated with Roger Williams in the seventeenth century. It was popularised, however, in a letter sent by President Thomas Jefferson to the Danbury Baptist Association of Connecticut on 1 January 1802. The Baptists had heard a rumour that the Congregationalists were to be declared the national church of the United States. Jefferson made it clear to the Danbury congregation that the federal government would not establish a national church, declare a state religion nor dictate how God was to be worshipped. 54

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Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith and for his worship, that legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declares that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof.

In interpreting and affirming these constitutional rights, Jefferson claimed the First Amendment had built “a wall of separation between Church and State.” As the High Court would show, isolating the church and the state from each other was certainly not the intention of those who had drafted the Australian Constitution. In the DOGS case, Chief Justice Barwick drew attention to the phrase “respecting an establishment of religion” in the First Amendment and the words “for establishing any religion” in section 116, and noted quite different intentions in the two documents. The inclusion of the word “for” in the Australian Constitution meant that establishment had to be the intention of the contested legislation or government action. (In his 1943 judgment, Chief Justice Latham had noted that the inclusion of the word “for” in the phrase “any law for establishing any religion” in section 116 meant that the purpose of the legislation was relevant in deciding whether it contravened the Constitution.) Justice Mason in his judgment focused on the word “any” in section 116 to highlight the important differences between the Australian and American provisions. “The text of section 116 more obviously reflects a concern with the establishment of one religion as against others than the language of [the First Amendment] which speaks of the ‘establishment of religion’, not the ‘establishment of any religion’.” Justice Wilson said that “section 116 is a denial of legislative power to the Commonwealth, and no more… The provision therefore cannot answer the description of a law which guarantees within Australia the separation of Church and State.” Justice Stephen concurred. He said the section “cannot readily be viewed as the repository of some broad statement of principle concerning the separation of Church and State, from which may be distilled the detailed consequences of separation.” He also noted that the First Amendment was far broader in 55

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scope than section 116. He thought that, in any event, the drafters of the Australian Constitution were doing “no more” than providing “a prohibition against two things: the setting up of a national church and the favouring of one church over another.” These proceedings opened up a new question: what did establishment actually entail? Chief Justice Barwick said its meaning had not changed since the Constitution came into operation in 1901. It involved: the entrenchment of a religion as a feature of and identified with the body politic… It involves the identification of a religion with the civil authority so as to involve the citizen in a duty to maintain it and the obligation of, in this case, the Commonwealth to patronize, protect and promote the established religion.

This view was echoed in the judgment of Justice Gibbs who said establishment was deeming a particular religion as the “state religion or state church.” Justice Murphy took a very different view in his dissenting judgment. Holding to a more American view of what establishment entailed, he held that “non-preferential sponsoring of or aiding religion is still ‘establishing’ religion.” Therefore, Commonwealth funding for church schools violated section 116 in that it amounted to establishment. The majority of the court, however, did not hold this view and held that the Commonwealth could continue to fund church schools without fearing that laws allowing such grants would be challenged. The case naturally disappointed those who wanted the court to identify in the Australian Constitution a Jeffersonian-style “wall of separation,” an intention of narrow civic secularity and a broad definition of establishment. Joshua Puls, a Roman Catholic academic lawyer and chaplain in Newman College at Melbourne University, believes: the approach of the majority to the meaning of “establishment” could not have been more strict. Based on the presence of the words “for” and to a lesser extent “any,” the Court felt justified in taking a very narrow view of what constitutes a “a law for establishing any religion”. Much emphasis was placed in the judgments on the meaning of the word “establish” in this context in 1900. This attempt by the Court in 56

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the late twentieth century to give a nineteenth century definition to a word which had had particular political and religious connotations for many centuries has been described as “historically defective.”

But the court did no more than distinguish the meaning of the word “establish” from assist, support or encourage which were, in fact, better descriptions of what Commonwealth grants to church schools involved. In any event, in the British context the word “establish” is a technical term with specific connotations. According to Justice Phillimore in Marshall v Graham Bell (1907): A church which is established is not thereby made a department of state. The process of establishment means that the state has accepted the church as the religious body in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to its decrees, if rendered under certain legal conditions, civil sanction.

In the Australian setting, the mere allocation of Commonwealth funds to education which admittedly included a religious component was a very long way from establishing a religion. While there is evidence that the High Court has attempted to interpret the Constitution in a manner that is cognizant of contemporary developments and emerging needs, the court’s definition of establishment simply reflected the consistent understanding of the term since the late nineteenth century and noted that the foremost interest of the drafters was containing Christian denominational sectarianism. Consideration of the force and effect of section 116 was further assisted in 1983 with the so-called “Scientology case.” This High Court action involved the “Church of the New Faith” (also known as “Scientology”) and the Victorian Commissioner of Pay-roll Tax. Although it did not relate specifically to section 116, it concerned the definition of religion in relation to claims for exemption from payroll tax. Scientology’s practitioners claimed that it was a religion rather than a philosophy and, as such, they were entitled to payroll tax exemption. In effect, it sought to be treated in the same way as the Christian churches. One notable and obvious difference was that the churches were not-for-profit organisations providing welfare services for the 57

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whole community and not simply their adherents, the cost of which would otherwise have been met from the public purse. Indeed, treating the churches as charitable organisations (to the extent that they are dedicated to welfare work) rather than as religious associations for the purposes of tax exemption would be a means of avoiding debates about state sponsorship of religion. In any event, Scientology was a profit-generating business involving the provision of personal services for its clients on an income-producing basis. This case clarified the essential nature of a religion in law. Acting Chief Justice Mason and Justice Brennan proposed a two-part test. First, religion involved beliefs in a “supernatural” being, thing or principle. Second, adherents had to accept conscientiously certain canons of conduct that expressed or reflected that belief. They went on to say that because freedom of religion was not an absolute right, religious beliefs could not be cited as a defence for failing to comply with the laws that existed for the general well-being of society. Justices Wilson and Deane wanted to avoid detailed criteria. They preferred defining religion by what is was not rather than what it was. Their approach was to concentrate on the sincerity with which beliefs were held rather than their character or quality. Once again, Justice Murphy took a very different approach. He concluded that “any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious… The list is not exhaustive; the categories of religion are not closed.” This was not a very helpful definition and was clearly open to abuse by organisations interested solely in avoiding tax. An organisation had only to claim that it was religious – an inadequate test in itself – and then to assert that its activities gave life some meaning and living some purpose to gain exemption. Under Justice Murphy’s effective non-definition, the Australian Labor Party could have asserted that socialism was essentially a religion and that its members held to certain beliefs that imparted meaning and purpose to life to have qualified for exemption. Had Justice Murphy’s definition been accepted it is easy to imagine the Victorian Commissioner of Pay-roll Tax facing a very large increase in the number of exempt organisations and a substantial reduction in revenue collected. It would also have so debased the notion of religion that any existential philosophy could be deemed religious. 58

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But what guidance did the Constitution offer on the state’s everyday interactions with the churches and religion? Stephen McLeish, a Melbourne barrister who specialises in administrative and constitutional law and a former associate to Chief Justice Sir Anthony Mason of the High Court, argues that the “impulse animating section 116 is the preservation of neutrality in the Federal Government’s relations with religion so that full membership of a pluralistic community is not dependent on religious positions and divisions are not created along religious lines.” But Puls disagrees that neutrality was the key characteristic. At no stage do the founders of the Australian federation seem to have been motivated by a sense that engagement between religion and the state was itself an undesirable thing. The desired end was not “neutrality in the Federal Government’s relations with religion”. Rather, the desired end was “full membership” of all Australians in the “pluralistic community” regardless of their religion.

But how can the guarantees of “free exercise” and “non-establishment” co-exist? There would seem to be an inherent tension between them. As Puls points out: There will be times when the satisfaction of one might require the violation of the other. An inherent tension therefore resides in the relationship between the two guarantees. It is said that if too strict a view is taken of non-establishment, it could amount to hostility to religion and constitute an infringement of free exercise. On the other hand if an overly accommodationist view is taken of free exercise, it could constitute an establishment, at least of religion generally if not of any one particular religion.

Wojciech Sadurski, professor of Legal Philosophy at Sydney University, suggests “adopting a broad definition of religion for the purposes of the free exercise principle and a narrow one for the purposes of the non-establishment principle.” Puls disagrees on the grounds that having separate definitions is “logically unsound and, in any event, unnecessary.” He says that a better solution is opting for a narrow def59

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inition of establishment because the overlap only occurs when a broad view of establishment is taken. This is supported by Arlin Adams and Charles Emmerich in A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses. They argue (in relation to the US First Amendment) that: No dilemma exists if the establishment clause is understood in its historical sense as a prohibition against those institutional alliances of Church and State that threaten to coerce or influence religious choice. With this understanding, both “free exercise” and “religion” can be given broad content without fear of infringing the non-establishment guarantee.

Because the High Court has taken a narrow view of establishment, it has been able to broaden the scope of free exercise without effectively establishing any religion. Therefore, I agree with Puls that the narrower understanding of establishment “is most consistent with the purpose of the clause.” But this worries Michael Hogan who is concerned that the court’s interpretation “imposes scarcely any restraint on a determined Commonwealth Government and offers virtually no guarantee of religious freedom or equality to the Churches.” I share the first of his concerns but not the second or third. Nor am I convinced of the necessity of McLeish’s plea for a new “reading” of section 116. Given that denominational sectarianism has given way to religious diversity, he asks that it be read in a manner that pays greater attention to civil rights than to legislative powers to ensure it deals with pressing contemporary concerns in a consistent and coherent manner. I believe that restraining expansive government is the best way of preserving and protecting religious freedom. Other commentators have questioned the specific protection offered to religious convictions in the Constitution but not to other deeply held or conscientiously constructed moral beliefs. Here we must return to the political origins and historical context of section 116. The Constitution recognised only four rights: the right to trial by jury; the right to acquisition of property on just terms, freedom of religion, and non-discrimination on the grounds of state of residence. More recently the High Court has recognised a right to freedom of 60

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political expression arising from the Constitution’s own democratic character. Section 116 was never intended to recognise a right to free speech or religious association. In the court’s view, the Constitution serves principally to limit federal powers rather than to guarantee personal freedoms. The drafters of the Constitution did not want to comment on the status and standing of these beliefs but were content either that such beliefs did not require specific protection in a democratic society or that belief of this kind did not suffer any detriment, nor was imperilled, by the prohibitions included in section 116. The absence of any recognition of a right to free speech elsewhere in the Constitution does not, by itself, imply that religious convictions are privileged above other conscientious beliefs. Although these debates concerned personal freedoms and the character of Australian society, they did not arouse much public interest. It took the convening of a Constitutional Convention in February 1998 to bring questions relating to religion and the Constitution back to public prominence. The Convention’s principal task was to consider the possibility that Australia might become a republic. It also canvassed the wording of a new preamble for the Constitution in the event that Australia ceased to be a constitutional monarchy. After settling on the shape and structure of its proceedings, the Convention delegated the discussion of the “recognition clause” – the phrase in the Preamble mentioning God – to a working group. After an unexpectedly placid and good-humoured discussion, the working group recommended its retention in a draft preamble. The whole Convention supported the retention of a reference to God but did not propose any text. The draft preamble put to the people at the November 1999 referendum began: “With hope in God…” In a research paper prepared for the Federal Parliamentary Library in October 1999, Dr Marion Maddox outlined the arguments for and against the inclusion of God in the preamble. The secular arguments for omitting references to God included: the existence of Australians identifying with “no religion or with religious traditions in which the monotheistic use of ‘God’ is difficult to accommodate”; the phrase’s vagueness and lack of clarity; an inherited tradition of state secularism; the likelihood that mention of God would be “ridiculed as ‘god-bothering’ hypocrisy”; and the conviction that political authority is derived 61

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from the people and that religious beliefs are irrelevant to the nation’s constitutional arrangements. The religious arguments against mentioning God included: a presumption that “those who believe in God necessarily want God in the Constitution”; a conviction that a strict separation of church and state offered the best defence of religious freedom; resistance to the involvement of God in the Commonwealth’s affairs; the multiplicity of meanings attached to the word “God”; and a desire to be sensitive to those who do not believe in God. It proved to be a fruitless exercise. The referendum was lost. Australia did not become a republic and the replacement preamble was not needed. Australians continue to rely humbly upon the blessing of Almighty God. With the appointment in June 2001 of the Most Reverend Peter Hollingworth, the Anglican Archbishop of Brisbane, as governorgeneral of the Commonwealth of Australia, questions about church–state “separation” were again the subject of discussion. The nomination of a high-profile Christian leader prompted claims that the appointment somehow violated the “constitutional” separation of church and state. To have precluded Archbishop Hollingworth from the office because he was a Christian leader would, of course, have contravened the Constitution. To insist that someone with known religious views was prevented from occupying a position of trust in the Commonwealth would have been to apply the kind of test the Constitution expressly forbids. Shortly after the appointment was announced, Archbishop Hollingworth tried to deal with the multilayered controversy it had generated. In reply to those who were concerned about a violation of church–state separation, he briefly summarised the situation in constitutional terms. Those who raised the question [of separation of Church and State] have confused the Australian Constitution with the United States’ Constitution. The only “separation” of powers that applies here has to do with those pertaining to the Executive, the Legislature and the Judiciary of the Commonwealth itself. There is no clear cut separation between Church and State as there is in the case of the US tradition.

The Commonwealth government had also been advised that appointing someone to the position of governor-general could not be 62

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interpreted as making a law. It was, therefore, an action entirely consistent with the Constitution. But this was not what the critics wanted to hear. Canberra academic Max Wallace argued that the lack of a “‘clear cut’ distinction between Church and State,” previously “concealed by legal complexity and general disinterest,” was brought to prominence by Archbishop Hollingworth’s appointment. He claimed that “the silence has been broken, albeit unintentionally.” This and other assertions contained various inaccuracies and overstatements that marked public criticism of the appointment and subsequent claims that an Australian version of the American “religious right” was attempting to gain control of the nation’s political processes. But it was not enough for separationists to resist the growing influence of religion. It was also necessary to assert that religion had no legitimate place in public life. The latter view was the main theme of an article entitled “Australia’s foundations were definitely and deliberately not Christian” by Dr Helen Irving of the University of Sydney’s Law Faculty which was published by the Sydney Morning Herald in June 2004. Dr Helen Irving took issue with the claims, inferences and assumptions made by national leaders including Governor-General Michael Jeffrey, Prime Minister John Howard and federal Treasurer Peter Costello that Australia is in some way a “Christian nation” or that it possesses a “Christian heritage” from which it continues to draw substantial benefits. She took particular aim at the “National Day of Thanksgiving,” a recent initiative of several Christian organisations and the Australian Prayer Network, and suggestions from prominent Christians that the “moral decay” in Australia could only be resisted by those who adhere to religious faith. Such claims, she says, “are not only offensive to many decent and honourable Australians who are either non-religious or follow another faith,” they “distort our history and disturb our carefully wrought constitutional settlement.” Irving goes on to assert that “Australia has a secular heritage” which was “reflected nationally in the Commonwealth Constitution.” Dr Irving is inaccurate and, in my view, biased against reasonably acceptable interactions between church and state. To restate a previous point: while Australia is not a Christian nation in the same way that Britain professes itself to be with an established church, its heritage is 63

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demonstrably far more Christian than secular. In this respect, it might be said that Australia tended to resemble a Christian society whose citizens recognised that the public square ought not to be dominated by any single denomination – certainly not the Anglicans. Furthermore, Irving infers that the term “secular” means “non-religious” or “anti-religious,” although it meant “without denominational affiliation or formal association” when employed in the 1890s. She says that “state schools were required to be secular.” Such a stipulation did not mean they were non-religious but that the religion taught in these schools was not intended to be denominationally driven or biased. Irving claims that section 116 was a departure “from English practice, it went even further than the First Amendment in the United States Constitution, which only forbids law establishing a religion or prohibiting free religious practice.” Her claim is wrong in fact and mistaken in interpretation. As I have shown, the First Amendment forbids law “establishing religion” whereas the wording of the Australian constitution is “establishing any religion” (emphasis added). Although the difference is only one word, the High Court has concluded that the Americans actually went much further by identifying religion per se whereas the Australians were only concerned with avoiding denominational ascendancy. Later Irving makes the comprehensive claim that “religion is not the business of Australia’s government.” Quite what this phrase means is unclear. But if I understand the general thrust of her argument – that government must be neutral or indifferent to religion – this conclusion does not flow from a close reading of the Constitution or its interpretation by the High Court. She then engages in what I regard as special pleading. Rather than simply clarifying the legal basis of church–state relations, she displays a prior commitment to restraining both the discussion and the propagation of Christianity in the public square. This is manifest in her criticism of “government members” for “hosting and endorsing religious organisations.” She alleges that when “senior leaders claim that moral standards are grounded in a particular religion” they are effectively “intruding into the consciences of individuals as officials of theocratic nations do.” Federal parliamentarians are usually encouraged to interact with any group of people in the community to ensure our democracy 64

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remains a representative and participatory one. They enter into dialogue with environmentalists and feminists, single parents and divorcees, industry lobby groups and employee advocates, veterans, migrants, the disabled – any and all groups in the community. To say that religious groups are in some way different and that they ought to be held at arm’s length is clearly discriminatory. The tall and imposing “wall of separation” that Irving and others seek is, in any event, impossible to maintain. As the Melbourne barrister Dr Cliff Pannam QC has observed in relation to the American situation: The existence of innumerable interactions [between church and state] casts a great deal of doubt upon the legal and sociological good sense of the doctrine [of separation]. Church and State cannot be divided into separate aid-proof compartments. They are not two societies that can be separated by the erection of a wall between them. Religion exists within a society and is a part of it.

He goes on to observe that even “if it were desirable it would be a complete impossibility. The idea of a wall separating Church and State is misleading because it can never be a reality. It may be a good battle cry but it is poor law.” Joshua Puls rather wryly observes: Whilst there may be a “wall of separation” between Church and State [in the United States], this wall has only increased the desire of these neighbours to look over the wall into each other’s yard, constantly paranoid that the other is silently shifting the wall during the night. In contrast, the less distinct division between Church and State in Australia seems to have facilitated a more peaceful, more reasonable, and ironically, arguably more separate co-habitation.

However, a small number of ardent secular separationists remain. They are determined to promote strict separation with or without Constitutional authority. At a conference held at Paris in July 2005 to mark the centenary of France’s formal separation of church and state, Canberra academic Max Wallace went as far as claiming that the 1981 DOGS case “was a 65

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constitutional coup by six members of the High Court who have all been knighted by the Queen. Their decision eliminated the possibility of church–state separation in Australia before the idea had a chance to take hold.” Quite apart from the historical inaccuracies and his libellous allegation against the High Court judges, it is obvious that Wallace is an ardent secularist with little interest in religious freedom. All doubt is removed by his assertion that Australia and New Zealand are “multiple-church-recognition soft theocracies” and his contention that this “plays into the hands of Christian inspired political parties who want to move our countries in the Religious Right direction of the United States.” He concludes that there would be no point in Australia becoming a republic “if we do not separate Church and State.” A long-standing and vocal advocate of a strict separation of church and state, Wallace points out that the national flag includes the emblems of three Christian saints, St George, St Andrew and St Patrick; federal parliament is opened with a version of the Lord’s Prayer; that oaths of office and official proclamations are often concluded with the words “So help me God” or “God save the Queen”; the federal government provides financial assistance to church schools and contributed to the establishment of the Australian Centre for Christianity and Culture in Canberra; the Broadcasting Act sets a quota for religious programming on the national broadcaster; and contracts for outsourced Commonwealth services are awarded to church groups who apply religious tests to their employees. He also claims that the figure of 25 per cent for those Australians who do not profess any religion: is likely to be understated by the coaching qualities of the “tick a box” census question. It is not a novel observation that our society is more secular than religious. Our materialistic lifestyle, I would argue, effectively swamps heartfelt supernatural commitment for the majority.

His is very poor argument – to dismiss the level of national religiosity on the basis of admittedly poor statistical data and then to present a contrary contention without any evidence whatsoever – although I would partly agree with his observation. I do not think that most Australians are overtly religious but I do not believe that materialism, as if it was the only alternative to spirituality, explains the 66

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central Australian cultural trait or the essence of most individual lives. It is much more complex than that. The number of people professing “no religion” actually declined in the 2001 national census. The churches must concede, however, that although most Australians (approximately 70 per cent) describe themselves in conventional denominational terms, their attachment to the Christian religion is feeble and their participation in church life is minimal. As the late Catholic historian Patrick O’Farrell pointed out 20 years ago: In Australia… what is most significant historically about religion is its weakness, its efforts to achieve some strength, its tenuous and intermittent hold on the minds and hearts of the Australian people, its peripheral or subordinate relation to their main concerns.

In my personal dealings with a cross-section of the Australian population and in my work as Anglican Bishop to the Defence Force, I concluded some time ago that Australians are generally indifferent to religious concepts, other than when they might demand some moral response, and that they are spiritually unresponsive. To the vast majority, religion is largely about formalised rituals of commemoration. Spirituality is just another dimension of therapy for those so inclined. A scent of Christianity continues to pervade the public square but it is fading fast. I do not believe the claims made by Max Wallace and others that the Christian churches are dictating the course of Australian public life are justified on available evidence. In fact, it is declining political influence that has led to some Christians becoming more active and organised in the public square. There are positive and negative aspects to this development. For separationists, however, it has only added to their anxieties and readiness to misrepresent the intentions of the Constitution and its alleged endorsement of a “wall of separation” as the following chapter will show.

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CHAPTER 4

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T

hose wanting a closer relationship between church and state, including official recognition of Christianity as the nation’s principal religion, tend to hold specific clusters of beliefs. First, they believe that Australia was and is a Christian nation because more than half the population self-identify as Christians. Therefore, it needs to preserve its Christian heritage if it is to continue to be a place of prosperity and blessing. It can maintain its heritage by making the state subservient to the church or by the church insisting that the state act always and everywhere in a manner consonant with Christian doctrine. This stance assumes that interactions between the church and the state are never neutral or benign and presumes a clash of ideologies. In effect, there is a continuing struggle between the forces of God and the servants of evil. Christianity is a call to dispel darkness and defeat sin, the flesh and the devil in whatever forms they might take in contemporary Australia. Second, as the proportion of Australians who have a religious affiliation other than Christianity has grown to around 4.5 per cent of the population, some Christians are afraid that in addition to Australia forsaking its Christian heritage and losing its Christian character, they might find themselves resident in a country that acknowledges other religions and might, in time, be dominated by a religion that is not reticent about creating a theocratic state. The principal point of concern is Islam. Blurring the distinction between church and state is, in effect, a pre-emptive strike to prevent the creation of an Islamic state in Australia. Third, some Christians remain committed to establishing the Christian church in something akin to a theocracy. They contend that because states are divinely appointed they are accountable directly to God. 68

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Therefore, they must fulfil divine commands in every aspect of legislation and uphold God’s will in public policy. While others might not have such high expectations of the state, they want Australia to be a safe place for the church in which its security, privilege, domination and hegemony can be preserved. Others dislike the influence of secularism on their children, community life and popular culture, and want the authority and the apparatus of the state to promote Christian values and curb the influence of secularism and its alleged attendant evils. Fourth, some groups believe they can convert Australians to Christianity by imposing Christian ideals on all social, economic and political interactions and by obliging people to embrace Christian values although they might not be Christians by personal conviction. In effect, if people are forced to behave like Christians they might imbibe or absorb Christian concepts and imperatives, and eventually become Christians and join the church. This group feels itself to be in the grip of a divine command to restrain wickedness and vice, and to promote godliness and nobility. To do otherwise would be to disobey God and neglect their fundamental responsibility to shine their light in a dark world. In each instance there is a desire for some form of church–state partnership. But there are Christians just as strongly opposed to any hint of establishment. In his 2005 Boyer Lectures entitled The Future of Jesus, Dr Peter Jensen, the Archbishop of Sydney, commented: “I do not believe that we can read anything about Australia or the United States, let alone Russia or the European Union, in [the New Testament’s] pages; and the concept of redeemer nations, national callings and lights on the hill is pernicious.” Not surprisingly he takes comfort in section 116: I am delighted by those words. They were added to protect us; they best suit the sort of society in which I would like to live; and I believe that they will actually help the Christian faith flourish best because establishment is the bane of any religion. I want freedom for religion or non-religion, yours as well as mine.

What, then, are the options if establishment is unattainable or undesirable? Rex Ahdar, a New Zealand academic, has identified four 69

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alternatives to establishment: principled and pragmatic pluralism, and structural and ideological separation. Principled pluralism holds that “the created order sees a rich diversity of structures or institutions, each having its own authority and duties.” Consequently, “no one institution ought to usurp the power or functions of the other.” Pragmatic pluralism is recognition “of the need for harmony amongst the religious communities present in society.” Respecting their diversity, “even-handed treatment is sensible and politically expedient.” Structural separation concedes that a separation of ideas and beliefs is impossible but separating church and state “ensure[s] that dangerous religious passions and superstitions would be confined to the private sphere.” Ideological separation is “the attempt to remove all religious influences from the public sphere… Religion is a purely private personal matter and public institutions are to be a ‘religion free’ zone.” Within the Australian church, the current debate is largely confined to pragmatic and ideological separation. There are those who acknowledge the need for conditional contact in certain circumstances and others who demand absolute separation with no interaction under any circumstances. The benefits of conditional contact under a regime of pragmatic separation were clearly articulated by William Temple (1884–1944) in his short book Christianity and the Social Order published in 1942 to coincide with his appointment as Archbishop of Canterbury. Although the head of an established church, Temple insisted on the church’s autonomy and independence. He argued that the church was bound to interfere in civil matters on four distinct grounds: [First], the claims of sympathy with those who suffer; second, the educational influence of the social and economic system; third, the challenge offered to our existing system in the name of justice; fourth, the duty of conformity to the “Natural Order” in which is to be found the purpose of God.

For Temple, the church is “bound to interfere” because it is by vocation the agent of God’s purpose, outside the scope of which “no human interest or activity can fall.” Temple was equally succinct in his description of the manner of the church’s interference. 70

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[First], its members must fulfil their moral responsibilities and functions in a Christian spirit; second, its members must exercise their purely civic rights in a Christian spirit; third, it must itself supply them with a systematic statement of principles to aid them in doing these two things, and this will carry with it a denunciation of customs or institutions in contemporary life and practice which offend against those principles.

It was also clear to Temple that the church ought to recognise and respect the limits of its competence to comment on and interfere in social and political questions, and leave to informed Christian citizens the implementation of religious principles in their own social and political contexts. The Church must announce Christian principles and point out where the existing social order at any time is in conflict with them. It must then pass on to Christian citizens, acting in their civic capacity, the task of re-shaping the existing order in closer conformity to the principles. For at this point technical knowledge might be required and judgments of practical expediency are always required. If a bridge is to be built, the Church might remind the engineer that it is his obligation to build a really safe bridge; but it is not entitled to tell him whether, in fact, his design meets this requirement, a particular theologian may also be a competent engineer, and, if he is, his judgment on this point is entitled to attention… In just the same way the Church may tell the politician what ends the social order should promote; but it must leave to the politician the devising of the precise means to those ends.

Therefore, according to Temple, the church ought to distance itself from party politics and refuse, as an institution and a community, to be drawn into political partisanship or public administration in any way. Temple was not demanding that Christians abandon political parties and movements, vacate forums for political discourse or refuse to work in the civil service. Rather, the church must continue to focus on those principles that emerge from its understanding of the Gospel and offer these to the state on behalf of its members. These are things 71

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that the church, and only the church, can offer to social and political life. Meanwhile, the followers of Jesus acting as citizens rather than as members of the church are to participate fully in social and political life while always and everywhere being conscious of Christian principles. Temple’s outlook allows for conditional interaction between the church and the state. The strongest religious advocate for ideological separation is Stanley Hauerwas (1940– ), professor of Theology at Duke University’s Divinity School in North Carolina. His position is based on Jesus’s insistence that his disciples were “in the world but not of it.” Their peculiar vision of social and political life was not, Hauerwas claims, worked out in the enveloping “world” but elsewhere. Jesus established a community – the church – shaped by certain practices necessary to sustain particular beliefs. According to Hauerwas, religious worship involves “a clash of narratives… the one who gets to tell the story is the one who determines the politics.” As different narratives shape human character and perception of political situations, Christians must content themselves with living in a permanently fragmented world. In the new secular society, “paganism is the air we breathe, the water we drink. It captures us, it coverts our young, it subverts the Church.” He refers to the church in one place as “a colony of heaven” and elsewhere as “a beachhead, an outpost, an island of one culture in the middle of another.” Thus, he vehemently rejects “Constantinianism” because it “attempted through force of the state to make the world into the kingdom [of God], which attempted to make the worship of God unavoidable, which attempted to make Christian convictions available to all without conversion or transformation.” He claimed it was an “illconceived project that has at last died of its own deceit.” Not surprisingly, Hauerwas delights in the demise of “Christendom” and the loss of religious political influence as a necessary precondition for the recovery of authentic Christian social and political life. He rejects the obvious accusation that he is advocating withdrawal from social or political engagement by asking: how can the Church possibly withdraw when it, by necessity, must always find itself surrounded? There is no place to which it can with72

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draw. I am not asking the church to withdraw, but rather to give up the presumptions of Constantinian power, particularly when those take the form of liberal universalism.

Hauerwas presents a form of Christian radicalism that preserves a sharp distinction between Christian faith and cultural values by surrendering one form of participation – that of utilising the world’s power structures – in deliberations over public policy. Mainstream Australian Christianity has not encouraged “separatist” denominations or congregations. Very few exist and those that survive have not flourished. The major denominations have tended to be deliberately inclusive and conformist as a reflection of their interest in the redemption and salvation of the whole world. Their constituent congregations have been socially oriented bodies with porous walls. Most congregations readily offer membership. The demands placed on members are usually minimal. In many places the emphasis has been on the quantity of believers rather than the quality of their belief. Until the late 1960s, the Australian churches were politically influential and active. They boasted an impressive network of local congregations across the country. Their place in public life appeared to be assured. Church leaders spoke authoritatively for substantial sections of the community and on behalf of large segments of the electorate. Their position was rarely challenged. In the 1970s, the situation began to change in two ways. As churchgoing declined, the pronouncements of religious leaders no longer received the close attention they once did. Australia was a more diverse and cosmopolitan society with many more voices vying for an audience in the public square. It was not that church leaders were ignored; it was simply harder for them to be heard. And whereas in previous decades a person’s religious affiliation was a reliable guide to their likely behaviour at the ballot box – Roman Catholics mostly voted Labor and Anglicans often voted Liberal – the nexus was severed and political parties could canvass votes with little concern for church membership. Some churches and their leaders began to feel marginalised politically. They became acutely frustrated when Australian public life headed in directions that embraced ideas and promoted values that appeared contrary to those embedded in Christianity. 73

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Given their inability to be heard in the public square, some churches and their leaders sought to regain political influence by promoting Christian candidates and parties at state and federal elections. They have become a permanent feature of the political landscape, especially in jurisdictions with proportional representation. In most ballots Australians are now given the option of voting for a Christian candidate or party and “exchange of preference” deals are significant in determining the outcome of any election. While the Christian Democratic Party founded by the Reverend Fred Nile has existed for more than two decades, recent attention has focused on the Family First Party and its single representative in federal parliament, Senator Stephen Fielding. He is a self-declared Christian who attends a neo-Pentecostal church. Commentators have noted that although Family First’s policy platform is based on Christian teaching, it is expressed in secular language – concern for family values, common decency and public standards – in appealing to social conservatives of no fixed religious conviction or denominational affiliation. The rise of “Christian” political parties, such as Family First, is of equal concern within the church because they cannot reasonably claim to represent all Christians. In my view they face a number of serious theological and ecclesiological objections. In practical terms, how can a “Christian” political party claim that its platform is genuinely Christian when it is detached from a church or denominational association and does not have any means, such as a synod, or any statement of doctrine, such as a Catholic Creed, of validating such a claim? And given the difficulties human beings often face in resolving differences of opinion, how would a “Christian” political party authenticate any assertion that its own processes reflected biblical standards of behaviour? How should they respond to allegations that they have compromised core religious convictions when they agree to drop opposition to one aspect of public policy that might offend Christian sensibilities in order to secure the party’s objectives in another? While Christians are naturally entitled to be concerned when governments make laws that conflict with their worldview or which disadvantage them in various practical ways, Christians must concede that they are as prone as any other group to act out of pure self-interest. As minorities, they could attempt to impose their will on the 74

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majority and blur the already strained distinction between church and state which ought to be respected for the well-being of both entities. Christian political parties also weaken the church’s capacity to act as a distinct and exemplary community, and turn the church into a political ghetto ignored by parties unable to secure the so-called “Christian” vote. There is evidence such sidelining has begun to happen, with left-wing political commentators and academics inferring that evangelical Christians are social conservatives with a social and political outlook similar to the American “religious right.” The Christian Democratic Party is plainly Christian and certainly conservative. It strives to disclose the Christian impulse in its policy prescriptions. Although the Family First Party does not hide its social conservatism, the word “Christian” does not appear on its website or in its literature. Such an omission only serves to encourage suspicion on the part of outsiders that elements of the church are attempting a covert takeover of parliament and the public square. It is not unreasonable for Christians to be asked to identify themselves as Christians – rather than as “social conservatives” – whenever they engage in overt political activity. This lack of transparency is a particularly troubling aspect of Family First’s political persona. In my view, parties that are explicitly Christian and those that attempt to camouflage the fact are equally flawed: they are both misguided attempts at regaining political influence and do not ultimately serve the purpose for which they were created. A less problematic approach has been embraced by the Australian Christian Lobby (ACL). The ACL seeks to influence the policy platforms of major political parties and to maximise the potency of the “Christian vote.” It “encourages supporters to join a political party and to help support Christian values in that forum.” Sensibly, the leading figures in the ACL’s executive are precluded from holding party political membership. In wanting to influence government, the ACL says “we explain our position without using terms and phrases that are only understood in the Church” and asks its supporters to defend its position “on various issues without using direct references to the Bible, even though this is where we derive our position.” I much prefer this model although I remain concerned about its general accountability to the broader Christian community; and about the possibility that it will 75

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be captured by the socially conservative because it cannot reflect the mindset of all Christian traditions in this country; and whether such an approach really represents an economy of effort. In my judgement there are obvious limits to what political programmes can achieve in any domain of human activity and it is doubtful whether they have much influence on changing the focus of the human heart and the orientation of human will that is at the core of religious life. In any event, does the state have a capacity for moral conduct? Is there an attempt here to impose responsibilities upon the state that it is unable to discharge? There are three competing responses. Supporters of the first perspective believe that the state has a moral capacity and expect it to act in a morally responsible manner, albeit with some qualifications. According to Robert Goodin, a political philosopher at the Australian National University, the state is a moral agent because it is analogous to a natural person in possessing values, and is capable of pursuing moral goals and ends by means of deliberative action expressed “through its legislative and executive organs.” John Westlake, from the International Centre at Bournemouth University, offers a variation of this position. He argues that individuals associated in the form of a state are moral beings, and inasmuch as the action of the state formed by their association is their own action, the state must also be a moral being. But as the “obligation of the State cannot be identified with the obligation of any individual,” there are several salient differences. Unlike individuals, states are not accountable to an external authority (other than perhaps to God), although it might be said they are accountable to an internal authority – the political constituency – the people. While states have agreed to regulate their dealings with each other through law, convention and custom, Westlake says the complexity of their internal constituency means the state cannot always be expected to observe all or the same standards of morality that apply to an individual. States are expected to be moral but their behaviour conforms to a different moral code. What might be moral if performed by an individual might be immoral if performed by the group, and vice versa, such as killing another human person. According to Westlake, the state is not the sum total of its parts. States are animated by a will and a spirit that is different, although not entirely 76

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dissimilar, from their constituent parts. Philip Pettit, Laurance S. Rockefeller University Professor of Politics and Human Values at Princeton University, argues that the state can act as a moral agent when the community from which it arises is sufficiently coherent. This criterion might be fulfilled in cases where the vast majority of the people profess the same religion, live in similar economic circumstances or belong to a single ethnic group. But Pettit too concedes that the moral demands imposed on the state are different from those placed on an individual. Those holding the second view, known as the cosmopolitan position, contend that states are incapable of moral consistency or ethical accountability. However, they believe that only when the self-interested nation-state is transcended in the creation of an international body is moral conduct a distinct possibility. Andrew Linklater, a political scientist at the University of Wales, argues that: The cosmopolitan vision of a greater global community of humankind… envisages the eventual demise of the system of sovereign states and the appearance of stronger bonds between the individual and the rest of humanity… if the central idea of the “morality” of states is that states should be desensitised to each other’s domestic wrong-doings in the interests of order among them, the central idea of cosmopolitanist morality is to heighten the sensitivity of people in one place to wrongs done in another in the interest of the achievement of global justice.

This approach presumes, of course, the existence, recognition and implementation of a kind of ethical universalism that asserts the possibility of discerning certain principles of conduct that individuals and states recognise and respect or, at least, ought to honour. The third view, the so-called realist position, holds that morality is simply incompatible with the conduct of national affairs. Robert Jervis, professor of International Affairs at Columbia University, argues that government exists to promote the internal and external interests of the state. The interests of government stand apart from those of the people it rules. He differentiates the individual from the state in arguing that morality applies only to individuals within 77

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domestic society: “It neither has nor should have… a [decisive] role in relations” between states. The responsibility of a political leader is to the well-being of his people, not to purity of his own soul, and the two do not always necessarily coincide. These competing positions are not new but the tensions they disclose are still unresolved. I am personally inclined to an amalgam of all three views. For me, the state’s conduct must reflect some of the shared values and common virtues of its people. I say some rather than all because it is obligated in a democratic society, by virtue of its constitution and nature, to reflect the diversity of opinion apparent in achieving consensus. These “reflective” values and virtues are manifest in the policy platforms of democratically elected governments. Therefore, the conduct of states can and, therefore, should be broadly consistent with the behaviour expected of individuals within the state. But they cannot reasonably embody the moral vision or ethical outlook of a particular religion when that religion is not professed by all citizens. They are also constrained by law, politics and budgets. From my observation, churches are overly optimistic about what politicians and public administrators can achieve and unrealistic about what the state does accomplish through public programmes. For most people in most instances, the purpose of their life is discerned within the family. Meaning is found within the home. Moral questions are usually raised and settled among loved ones. If they relate to vocation or employment, they are settled by a professional body or at the workplace with little or no external interference. On questions of abortion, homosexual marriage and euthanasia, moral discourse also takes place at home among family and friends. It is in such settings that the vast majority of people make up their own minds about difficult questions. Whether they choose to have an abortion, be party to a homosexual marriage or seek to end their life prematurely is a matter they will decide without the state’s assistance. It is this domestic discourse that churches and concerned Christians ought to influence rather than adopting postures in debates encouraged by the media or hosted by parliamentary committees. But the desire among some Christians and churches to use the agency of the state to force their values on others, whether or not they embrace the beliefs that undergird them, remains strong. In his cri78

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tique of B.A. Santamaria’s quest to subvert political processes through the agency of the Catholic Social Studies Movement, philosopher Max Charlesworth spoke for a number within the Catholic Church when he lamented that: Santamaria always grossly over-estimated the power of party political means and underestimated the power of what [French Thomist philosopher Jacques] Maritain [1882–1973] has called “poor spiritual means”. One wonders in fact how he saw Jesus’ persistent rejection of the means of power and his use of what St Paul was later to call “the sword of the Spirit”.

The acute difficulty faced by those like Santamaria who advocate direct Christian political involvement is the existence of theological diversity and sometimes sharp differences of opinion within the churches, even the Catholic Church, over the Christian vision of social relations and political life. As Father Richard Neuhaus has pointed out, Christians: must never equate their penultimate judgments about what might serve justice with the ultimate truth that impels us to seek and serve justice in the first place. To declare something to be “Christian politics” implicitly excommunicates those of good standing in the Church who disagree. It is more likely to turn Christian against Christian, rather than Christian against secularist or pagan.

The churches and their leaders must also accept that once they have received funds from the public purse or made official statements with political consequences, they have effectively assumed some responsibility for the ordering and conduct of national life. They are bound to the state and obliged to have regard for its welfare. In expending taxpayer money and implying a duty to shape public policy, the churches and their leaders have entered voluntarily into a relationship with the state. As healthy relationships involve mutual respect and a concern for the other’s well-being, neither the churches nor their leaders are entitled to stand at a distance from the state criticising those things they dislike or declining responsibility for any policy 79

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failure. Were the churches and their leaders to think more broadly about accountability, they might be more restrained in making demands on the state and less willing to accept public support for their activities. They might also be more cognizant of the pressures faced by the state and, in particular, legislators. At the moment, it appears to some that church–state relations are very one-sided. In his highly polemical history of religion in Australia, The Sectarian Strand, Michael Hogan of the University of Sydney is critical of the churches’ double-standards in relation to tolerance and anti-discrimination legislation. Despite the fact that the language of human rights features strongly in the sermons and public statements of conservative church leaders, there is a fundamental imbalance in the attitude of such people to civil rights legislation. They want their own religious rights and privileges protected but they oppose laws which will extend similar rights and privileges to others. They wish to prevent anyone discriminating against them or their institutions, yet they want to be free to discriminate against others [in relation to their freedom to recruit staff]. Ultimately this amounts to an assertion of priority for the well-established Churches over smaller religious groups and over secular groups with opposed ideological interests… Fundamentally, the Church wants the State to enforce Christian morality – or at least not to undermine it by giving legitimacy to alternative moralities.

While I believe it is reasonable for churches to seek exemptions from discrimination legislation to enable them to recruit staff who share their core convictions and to “avoid injury to the religious susceptibilities of the adherents of that religion,” they should not resort to law to either propagate their beliefs or enforce their customs. Hogan is, however, correct to highlight the church’s general preoccupation with its rights and freedoms ahead of acknowledging its obligations and responsibilities.

• So far I have argued that interactions between the church and the state are inevitable and, for the greatest part, no threat to the health of the 80

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body politic. This view is not, of course, shared by all. The case for strict separation is usually advanced by individuals and groups committed to secularising the public square. The most ardent tend to be those whose secularism is inspired by atheism – sometimes described as humanism. Although the various humanist societies do not have large memberships, they have been vocal advocates of strict separation between church and state and their motives are worth examining in some detail. The website maintained by the Humanist Society of New South Wales is underpinned by a resolute commitment to a raft of doctrines and value judgements. In begins by explaining that humanism “as a philosophy traces its roots to the ancient Greeks, who saw in man, the measure of all things, and who saw in reason, the solution to all human problems.” It was apparently “lost” during the “Dark Ages of ignorance and superstition” but has returned and flourished in the form of “the modern tolerant, democratic secular state.” While they are “fundamentally opposed to all dogma,” they claim not to be “antireligious.” Humanists insist that “any religious belief that any person may or may not hold is a matter for their individual conscience.” Thus, the Humanist Society is “disestablishmentarian, opposing as it does any state-sponsorship of religion.” In a section headed “Humanism: Some quick answers,” there are five short definitions of humanism. It is “a lifestance of personal fulfillment without belief in the supernatural; dignity and value of the human individual in an unknown universe; positive agnosticism; a movement that defends and promotes secularism; a positive position evolved from atheism.” In sum, humanism “derives the goals of life from human need and interest rather than theological or ideological abstraction, and asserts that humanity must take responsibility for its own destiny.” The humanist movement claims credit for the formation of bodies like the Voluntary Euthanasia Society, the Abortion Law Repeal Association and the Gay Counselling Service and was praised by New South Wales Greens Legislative Council MP, Ms Lee Rhiannon, in May 2000 for its “considerable contributions to life in this country.” It is plain from these statements and assertions that the Humanist Society is part of an ideological movement with received orthodoxy 81

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and controlling creeds. The things for which it strives and the activities it promotes are underpinned by a multitude of moral values and ethical principles containing undisclosed preferences and undefended prejudices. Humanism obviously involves a measure of faith and hope which stand apart from the application of pure human reason. The Humanist Society cannot claim, however, to be tolerant and respectful of those with religious beliefs when it disparages religion and refers on its website to the church’s occasional services (baptisms, marriages and funerals) as “meaningless religious gobbledegook.” It is also disingenuous to claim that it is without political commitments given the kinds of groups it has spawned, that it has been warmly commended by the Greens, and that the award of “Australian Humanist of the Year” has only been to those on the political left: Lionel Murphy, Olive Zakharov, Gareth Evans and Phillip Adams. While the majority of Australians do not share the ideological commitments or political fervour of the Humanist Society, there are growing concerns that a resurgence of interest in religion is affecting the nation’s political life and that religion could become more influential in our democratic processes than most Australians would be content to see. Quite apart from fears of Islamic extremism taking hold in this country, some commentators have alleged that an Australian version of the American “religious right” is beginning to emerge and that it must be thwarted by legal means. In declaring their unease they note the decisive place of the “conservative Christian” vote in securing the election of George W. Bush to the US presidency in 2000 and 2004 and are alarmed that appeals to the religious sensibilities of voters might also become the norm in Australia. The politicisation of religious convictions by conservative organisations and parties is the central theme of Dr Marion Maddox’s God Under Howard: The Rise of the Religious Right in Australian Politics published in 2005. Maddox claims that Prime Minister John Howard has used religion for personal advantage and political gain. She claims he has damaged the secular foundations of Australian democracy, exploited the least laudable dimensions of the Australian character, marginalised the unfortunate through deplorable wedge politics, and introduced extreme social conservatism by stealth. Maddox argues that Howard 82

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deliberately misrepresents the Methodism of his youth and intentionally distorts the Anglicanism of his adult years. Maddox says that, as part of his quest to regain the Liberal leadership in 1995, Howard quietly courted party room support from what she describes as the covert and conservative Lyons Forum. (I believe the Liberals elected him simply because they thought he could defeat the incumbent Prime Minister, Paul Keating.) He is, she contends, a willing warrior in the political right’s culture wars which draw heavily for substance and strategy on the recent success of America’s “religious right.” The prime minister’s attacks on political and cultural ‘orthodoxy’ have encouraged some individuals and groups to indulge in sexism, racism and homophobia. She concludes an epilogue by asserting that “Howard might keep winning elections but, in between, he has not entirely had his way with Australia’s soul.” The solution, in her work, is to enforce a strict separation of the kind I have argued the Constitution does not envisage. I do not believe the book’s central thesis – that Australia is in the grip of an ascendant “religious right” – has been proved. Indeed, this is one of the book’s least convincing arguments. Maddox relies too heavily on guilt by association. While a number of Australian organisations claim religious motivations for their political aspirations, they are, in my observation, disparate and disorganised, ill-disciplined and poorly funded. From first-hand contact with two of the groups mentioned by Maddox in her book, my assessment of their motivation and methods is very different to hers. From what I have observed, faithbased organisations are now asserting an influence on public life that is consonant with their constituency and size. It is also inconsistent for Maddox to make demands of religious groups that are not imposed on left-leaning ideological organisations like Greenpeace and the Evatt Foundation as well. That she does not understand (or accept) the High Court’s interpretation of section 116 is apparent in her endorsement of Victorian Labor Senator Kim Carr’s mistaken assertion that Australia is a secular state when it is, as I have consistently argued, a religiously pluriform one. Contrary to the claims of the Humanist Society and the thrust of Maddox’s work, I do not accept that the health and well-being of a state are protected and preserved by eradicating or ignoring the reli83

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gious ideals and aspirations of the people from which the state gains its authority and mandate. Nor is it self-evident to me that secularism is entitled to stand in judgement of religion any more than the state has a right to dictate attitudes and actions to the church. Secularism does not occupy a sanctified or privileged place from which bias, prejudice or ignorance are banished simply because it dismisses belief in God. Nor can the state assume wisdom, insight and understanding on the basis that it feels no obligation to embody divine laws. Secularism does not exist in a vacuum: it is a product of fallible reason and faltering experience. It has philosophical origins and a historical pedigree. It embodies specific beliefs that require the exercise of faith. Humanism upholds certain convictions about the ways things ought to be and, indeed, will be when secularism holds sway. Given its presumption to determine right and wrong, and to discern good from evil, humanism accrues to itself all the prerogatives and privileges of divinity. It is, of course, a form of human idolatry to believe in the utter selfsufficiency of human beings and the perfectibility of human reason. Both are enemies of freedom. This was the view of Friedrich von Hayek in The Constitution of Liberty published in 1960. Von Hayek advocated separating church and state because it limited the number of decisions made in the public sector and reduced the incentive for groups to vie for political control. He wrote: The case for individual freedom rests chiefly on the recognition of the inevitable ignorance of all of us concerning a great many of the factors on which the achievement of our ends and welfare depends… Liberty is essential in order to leave room for the unforeseeable and unpredictable.

Without making a case for acceptance of divine revelation, there are grounds for conceding that not all truth is to hand or even fathomable by human reason. Such a reticent mindset might make a society and the state derived from it less prone to self-aggrandisement, pride and conceit, and the terrible consequences flowing from these things when they are expressed at a national level. Humility is a necessary virtue even in states. Therefore, the state is not competent to 84

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involve itself in all of the various spheres of human life and public discourse. It must leave sufficient room within the public square, and indeed within itself, in which to allow contested matters to be discussed and potentially divergent views to flourish. One final word of caution is necessary. History shows that a state which claims to be neutral or non-religious can easily and quickly be transformed into a state which is anti-religious and hostile towards religion. Modern France is a good example. The controversial decision of the French National Assembly in February 2004 to adopt a law banning “symbols and clothing that ostentatiously show students’ religious membership” in public elementary, middle and high schools is an example of aggressive and, one could argue, highly selective secularism. The wearing of the Muslim headscarf by women – the main target of the legislation – was as much a cultural symbol as a religious one and might, in a spirit of fraternity and toleration, have been overlooked. And the law was selective in that the French government pays the salaries of Christian clergy who serve as chaplains in France’s armed forces. The policy was widely interpreted as imposing a new limit on religious freedom in France and implying an official lack of respect for the beliefs of one religious community. It revealed a less than laudable element of promoting strict separation. As Rex Ahdar explains: If the State teaches that all religious references are to be extirpated from public life and that society can be ordered as if God does not exist, it is hardly surprising that some believers interpret this as a marginalization and even rejection of their faith. All too quickly a State which begins as “neutral” ends up promoting an irreligious worldview.

Dr Samuel Gregg, a former fellow of the Centre for Independent Studies, claimed that Australia is now beset by what he called “doctrinaire secularism.” He bases his claim on the observation that “even mentioning God in the public square is questionable. It further maintains that any religiously-motivated action is unacceptable in the public square.” Although these debates are much more intense in the United States where passions clearly run deeper, Gregg claims that 85

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“doctrinaire secularism” is nevertheless a threat to both democracy and pluralism in Australia. Taken to its logical conclusion, doctrinaire secularism amounts to the promotion of a type of atheism as the unofficial state religion. By this, I mean that the secularist state insists that anyone contributing to political discussion or acting in the capacity of a state official ought to act as if there is no God, or if there is, this ought to have no bearing whatsoever upon their choices and actions. These are not religiously neutral positions.

Gregg’s contention is clearly demonstrated in Harold Sperling’s letter to the Sydney Morning Herald published in December 2005. It was in response to a Christmas eve editorial commending religious values as a solution to social problems. Rather than simply expressing his view that people without religious values are capable of “good conduct,” Sperling cannot resist the urge to drive Christians and their beliefs out of the public square. He concludes: The fall-off in religious observance referred to in your editorial may not be a sign of moral decay but an awakening to the irrelevance of religion as of any benefit in human affairs. That is not a matter for despair. It is up to us to shape the society we want. Recognition that there is no aid from on high is a healthy development. It puts the responsibility squarely where it should be. On us.

Sperling’s reference to “us” presumably excludes Christians. There is no evidence of neutrality or indifference here. In insisting upon a purely secular state, Sperling leaves no doubt that it must also be an exclusively atheistic one. Is there a way forward from the church’s perspective? Dr Andrew Cameron of Sydney’s Moore Theological College suggests a possibility in his 2005 New College Lectures: Whatever the distinction we want to make between Church and State, it simply can’t be a disentanglement of religion from the political life of a community. Australia simply can’t be “separated” in this way. A 86

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final “separation” between Christians and the political process can only occur if Christians are rooted out, their literature destroyed and they are killed or expelled… Doctrinaire secularism is either naïve or tyrannical. It has taken what began as a fight about freedom of religion and turned it into a demand for total freedom from religion. My advice to [doctrinaire secularists] is to stop wasting emotional energy over the fact [of Christian political involvement]… we will keep stating our account of what brings peace, and if we can’t do it publicly, we will do it subversively. Better, then, that doctrinaire secularism does business with the content of these accounts of peace, rather than continuing with the rather boring project of always reprimanding us for sharing. [original emphasis retained]

Although the Enlightenment prophets said three centuries ago that religion was doomed in the face of modernity, Australians still believe in God although most do little of a tangible nature about their belief. Christianity appears to be lingering for longer than expected. Given that Christianity is not about to disappear, what will the relationship between church and state look like in the future and how can the persistent tensions be resolved without the erection of a “wall of separation”?

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he continuing debate about church–state relations has endured many unhelpful contributors and suffered many unproductive contributions, especially from Christians. Their number includes those who want to promote fidelity to Australia’s “Christian heritage” and those determined to “take back” the nation for Christ. Most have no knowledge of constitutional law. Few have any familiarity with the long-running and complex theological debates surrounding the nexus between religion and politics. They are simply motivated by fear that their children will be influenced by secular humanists or drawn to another religion and a desire to share with non-believers the benefits of Christianity – whether they are wanted or not. Although well-meaning, they find it hard to believe that anyone could find them patronising and misguided. The more adamant among them depict church–state relations as a cosmic struggle for the nation’s soul, with the people of God acting as the church arrayed against Satan’s armies in the guise of the state. They are not attempting to move Australia towards the political right: it is more important than that. It is a battle between heaven and hell and assuredly a life or death matter for the belligerents. Some Christian activists appear to favour something akin to theocracy but are unable to see why and how ancient Israel failed to fulfil its side of the Abrahamic covenant. Nor do they see why theocracy would not work in modern, multicultural Australia or understand why many, including some of their church friends, find it a deeply undesirable prospect. In effect, they want the church to subsume the state and assume that everyone will eventually become Christians or act as though they were. 88

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The aim is not to introduce a religious establishment but to have Christianity given some form of official recognition. It can then serve as the benchmark by which law and policy is evaluated and the nation made more “Christian.” The group gaining most public attention consists of those advocating closer relations between church and state as a counter to perceptions of rampant secularism. Leading Coalition federal parliamentarians like Peter Costello and Tony Abbott have made no secret of their religious convictions or their belief that theological principles ought to be taken into consideration by governments when making decisions. Church leaders such as Archbishop Peter Jensen and Cardinal George Pell have raised publicly the various concerns of their respective constituencies and sought to remind political leaders who profess religious affiliations that they have personal responsibilities as members of religious communities, and highlighted the limits of political authority in determining the course and content of people’s everyday lives. While each has promoted a closer relationship between church and state, other than Cardinal Pell’s exposition of what he calls “democratic personalism,”* we are yet to see a comprehensive and definitive Australian statement on the relationship that ought to exist between the two and some treatment of the limits on their interaction. This void accounts, in part, for extreme Christian positions not being subject to the rigorous critique they deserve. Although theocratic Christians have not achieved their goals, secular separationists have fared no better. Despite signs that atheism has lost much of its momentum and religious indifference has become the norm, secularists persist with a campaign they believe has been underway since the Renaissance. They retain utter faith in the Enlightenment project and insist that humanity will not finally be free or able to achieve its destiny until the last church is closed and the last priest deposed. Christianity is still seen as a debilitating influence on the evolution of the species and the church regarded as a malignant growth * He explains that: “Democratic personalism provides another, better possibility; one that does not require democracy to cancel itself out. Democratic personalism does not mean seizing power to pursue a project of world transformation, but broadening the imagination of democratic culture so that it can rediscover hope, and re-establish freedom in truth and the common good.”

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on the body politic. Without outlining their own pedigree or defending their competence to judge, these humanists and the secular state they advocate claim to stand in judgement of both Christianity and the church. The former is an enemy of free inquiry; the latter an opponent of personal liberty. The more strident secularists continue to insist that religion is about personal views with private consequences. They have no place in public discourse and the church cannot legitimately propagate them in the public square. The propagation of the theory of “intelligent design” in the United States and its defence by the Bush administration illustrates their point. When a United States Federal Court judge ruled in December 2005 that “intelligent design” was a religious concept that could not be taught in science classes as an alternative to the theory of evolution, a number of Australian commentators were asked about the ruling’s implications for Australia. After claiming in his weekly newspaper column that the High Court judges in the 1981 DOGS case “made the best fist of a deficient constitutional arrangement,” Canberra journalist Crispin Hull insists that the possible inclusion of “intelligent design” in Australian school curricula was a serious issue because “we have no Bill of Rights to protect us.” He went on to argue: It is alarming stuff, because science and the scientific method are critical to democracy. After the collapse of Nazism and communism, government should no longer be done according to belief and ideology, but according to what works, what is best for the bulk of people without harming the minority… If we revert to government by belief and ideology we revert to the dangers of government by “isms” – it means repression and fear. Maybe that is why abusers of power are so opposed to science.

Hull is scare-mongering and has overreacted to a theory that most of the major Christian denominations in any event reject as an explanation of the world’s origins. Notwithstanding the equivocation of the then Minister for Education, Science and Training, Dr Brendan Nelson, the churches have taken a strong stand against the theory and given the government grounds for its exclusion from science curricula. While I am astounded by Hull’s belief in the possibility that we could 90

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ever have government without embedded “belief and ideology” of some kind, his comments do nothing to clarify the matters at issue in defining church–state relations nor do they explain where and why some separation is necessary. Regrettably, he, and many like him, only add to the public’s confusion over the force and effect of the Constitution. This uncertainty has been used to provoke entirely avoidable fear and suspicion. As this book has shown, questions arising from church–state relations are not new. Nor is there anything special about the energy being invested in recent disputes about possible answers. The difference is the changed positions and perspectives of the participants, and what each thinks it stands to gain. Within the space of several decades, the church has moved from nearer the centre of public life to the periphery. It has lost ground. Christians no longer enjoy political, social or moral ascendancy. Many clergy feel besieged or ignored. Whereas previously the church’s position meant a great deal in national affairs and Christian thinkers were accorded a prime place in the public square, Christians can no longer presume they will even be heard, let alone heeded, in an increasingly indifferent and hostile society. Christians are one among many “special interest” groups vying for influence and the crowd’s ear. For many in the church, it is now about winning a war of survival. And yet, many of the supposed tensions are more imagined than real as Christians fight battles that need not be fought, using resources more profitably deployed elsewhere. In contemporary Australia Christians have considerable scope to live their lives as they choose, free from state regulation or legal hindrance. While they might not like some of the things done by the state, such as authorising abortion or some forms of stem-cell research, the state does not prevent them from creating discrete local communities in which the peculiarities of the Christian faith are upheld. This is, however, just one element of responsible citizenship that all churches need to promote. I believe that Christians have many of the same responsibilities as non-Christians in civil society. The Christian community is drawn from the world and is cut from the same cloth. However, inasmuch as Christian lives are animated by a different spirit and the church is oriented towards a different end to the secular state and civic life, there 91

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are some things Christians cannot do, and some things Christians would do differently, and some things Christians would do, to which the rest of society remains largely indifferent. The attitude of Christians to civic life and state activity will therefore oscillate between hostility and ambivalence, ambiguity and agreement. I am certainly against withdrawal from the public square and political debate. In my view, Christians cannot enjoy the benefits of national security, material prosperity, domestic order and cultural richness without contributing to their maintenance in some way. While this contribution will have limits and be expressed according to circumstance, there will, necessarily and unavoidably, be points of intersection between Christian discipleship and responsible citizenship. Individuals must therefore exercise judgement and display prudence in all their dealings with the state and society. My own convictions tend towards a high doctrine of civil government and the church’s necessity to the state. The position I have adopted is similar to that of the theologian Frederick Denison Maurice (1805–1872) who thought that Christians ought to be active in the public square because it is also the sphere of divine activity. He also believed “the world,” as it was portrayed in the Fourth Gospel and the Epistles of St John, was equally directed at frustrating the purposes of the church and the state. It seemed clear to him from experience as well as reason, that the State is an excellent admonisher to the Church respecting her inward corruptions, because it comes in contact with those outward evils which are the fruits of them, even as the Church is a most excellent admonisher of the State respecting its sins, because their effects in destroying the nation’s heart are most evident to the spiritual man.

Maurice goes on to differentiate their respective roles. We believe that God has appointed one body, the State, as his minister for dealing with the outward formal, visible conduct of men, and another minister, the Church, for dealing with the inward spiritual invisible origin of that conduct. Abolish the distinction, confound acts with principles, and of necessity you merge the one in the other. 92

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Therefore, a cooperative partnership is the outworking of Maurice’s account of church and state. But here I part company with him. Because he believed national societies were part of the divine purpose, Maurice was also committed to national churches. I am not convinced that nationality can or should be justified in religious or ethical terms or that divine purposes are normally construed to fit national boundaries. Nor can I accept Maurice’s line of argument that the Old Testament union of sacred and secular in Israel’s experience is a prototype of human society. Nations are a sign of disunity rather than unity and a manifestation of disintegration rather than oneness. They are also capable of the most monstrous prejudice and conceit. But I do believe that institutional churches with a global membership, an expansive polity and an inclusive outlook, rather than established churches or “independent” congregations like Sydney’s Hillsong Church, can contribute to a broader vision of human destiny and foster community cohesion. The capacity of institutional churches to make these kinds of contributions is a purely practical consideration but it is no less important for being so. Furthermore, there is ample evidence to show that churches are more likely to thrive spiritually and materially without the aid of establishment or Christianity being formally recognised. In taking an economic approach to religious freedom, Michael McConnell and Richard Posner argue that the non-establishment principle in the US First Amendment: can be understood as positing that the “market” – the realm of private choice – will reach the “best” religious results; or, more accurately, that the government has no authority to alter such results… Freedom of religion can be understood as a constitutionally proscribed free market for religious belief.

If one contrasts the level of public support for churches and participation in religious services in both Europe and the United States, it is clear that non-establishment has better served the church’s health and well-being. Put simply: Christianity does not need political goodwill or financial support to survive or fulfil its mission. Influence and agency are the preferred modes of Christian interaction with the 93

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world. The church is more authentic and true to its message when it is politically marginalised and dwelling on the fringe of society with those excluded from its centre. Here we have another argument for the church keeping a prudent and respectful distance from the state. Thankfully, the Australian Constitution has contributed usefully to the conduct of church–state relations. While the High Court does not believe the drafters of the document intended to create a “wall of separation,” the court’s judgments have distinguished between the kinds of interactions that are consistent with section 116 and those that either constitute establishment or infringe on the free exercise of religion. The Constitution has preserved the religious diversity that prevailed when the document was drafted more than a century ago and left sufficient room for religion to play a part in the nation’s life. I am generally content with the existing recognition clause (I actually prefer it to the replacement proposed in the 1999 referendum) and the scope of section 116. If pressed, I would not be concerned if any replacement preamble did not contain a recognition clause. It is unnecessary for good public administration and a token gesture towards religious sensibilities at best. If the Constitution were to be amended (and there is no realistic prospect of this occurring in respect of God, religion or the churches), the priority ought to be on better protecting religious freedoms by seeking to extend the operation of section 116 to state and territory legislation (the Hawke Labor government tried to alter the Constitution to this effect and to extend the reach of section 116 from law to executive action in 1988 but the referendum question failed to gain majority support), and by seeking to ensure that the operation of church-based charities, schools, colleges, universities, hospitals and retirement villages are also placed within the operation of section 116. Where do we go from here? There is no future prospect of a religious establishment in Australia and none should be encouraged. There will continue to be interactions between church and state and these will be regulated by both the Constitution and administrative law. The nature and character of these interactions will be contested from time to time. Such a situation is to be expected in an open and democratic society which values the free flow and exchange of ideas and opinions. But if some of the present unhelpful tensions are to be eased, Christians must take the initiative in reducing suspicion by declaring their support 94

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for religious diversity, acknowledging the separation of church and state implied in the Constitution, and their willingness to use spiritual and pastoral rather than political and polemical means to achieve their objectives. This country might have a “Christian heritage” but it is in no one’s interests for those who do not share Christian beliefs to be subjected to discrimination, repression or coercion. The burden for observing a proper separation between church and state is thus placed squarely on the shoulders and consciences of those professing religious beliefs. This burden should be readily accepted as a means of avoiding the compromises and opportunism that have been associated with most Christian quests for political authority and temporal power in recent times. The state is no longer in need of protection from religious incursion, while the church no longer lives in fear of rampant secularism. Both church and state have distinct callings which are usually recognised and mostly respected. New laws will not assist recognition or promote respect. Unlike the United States, Australia does not need a wall of separation between church and state, and none will be needed in the near future if the recent past is any guide. While there are areas of unproductive posturing, we are presently witnessing the negotiation of a new relationship that will be healthier and more conducive to the flourishing of both church and state. This new relationship is not the result of a wholesale shift in Australian politics towards the right or the product of greater theological liberalism within the churches. It has to do with the emergence of a broader and more mature outlook on public life and willingness on both sides to co-exist at the very least, and to collaborate whenever possible. The absence of any wall points to the sophistication of Australia’s public life and the quality of its democracy. It also reflects a commitment to shared values and common aspirations that are just as important to those with religious beliefs as to those with none. While parts of the world descend into religious fanaticism and sectarian violence, there is no serious prospect of Australia taking this path. The nation’s ability to tolerate difference and to embrace diversity in religious matters will remain one of Australia’s greatest achievements, and something for which all its citizens can give thanks.

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Further reading The legal status of the Anglican Church in Australia is dealt with in Ross Borders’ Church and State in Australia 1788–1872: A Constitutional Study of the Church of England in Australia (SPCK, 1962) and R. A. Giles’ Constitutional History of the Australian Church (1928). Richard Ely produced the pioneering study of the Constitutional Preamble and section 116 in Unto God and Caesar: Religious Issues in the Emerging Commonwealth, 1891–1906 (Melbourne University Press, 1976). Although I do not share many of her interpretations or conclusions, Marion Maddox has also tackled some of these matters in For God and Country: Religious Dynamics in Australian Federal Politics (Federal Parliamentary Library, 2001) and God Under Howard: the Rise of the Religious Right in Australian Politics (Allen & Unwin, 2005). See also “The Church and Federation in 1901” by former South Australian Premier John Bannon in Spirit of Australia: Religion in Citizenship and National Life (ATF, 2001); J. S. Gregory in Church and State: Changing Government Policies Towards Religion in Australia with Particular Reference to Victoria since Separation (Cassell, 1973); and Michael Hogan’s The Sectarian Strand: Religion in Australian History (Penguin, 1987). The force and effect of the Australian Constitution is dealt with by Michael Hogan, “Separation of Church and State: Section 116 of the Australia Constitution,” Australian Quarterly, 52(2) 1981; Stephen McLeish, “Making Sense of Religion and the Constitution: A Fresh Start for Section 116,” Monash University Law Review, no. 18, 1992; and, Joshua Puls, “The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees,” Federal Law Review, 26(1), 1998. Broader issues relating to constitutional protection of religious freedom are covered by Rex Ahdar, “A Christian State,” Journal of Law and Religion, 13, 1998–99, and “Endorsement, Neutrality or Suppression: What is the Best Government Policy for Christianity?” in The Future of Christianity edited by John Stenhouse and Brett Knowles (ATF Press, 2004); Michael McConnell and Richard Posner, “An Economic Approach to Issues of Religious Freedom,” University of Chicago Law Review, 1, 56, 1989; Max Charlesworth in Church, State and Conscience (University of Queensland Press, 1973), especially chapter 2; Samuel Gregg, “Rendering unto Caesar: New Challenges for Church and State,” Fourth Annual Acton Lecture, Centre for Independent Studies, 2004.

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BRIEFINGS

BRIEFINGS CHURCH AND STATE

Historian and writer Tom Frame is the Anglican Bishop to the Australian Defence Force. His daily work puts him at the centre of the issues and tensions highlighted in this book. He left a military career in the navy to train for the Anglican priesthood, then took on a unique role as spiritual leader to the men and women who serve in the Australian Defence Force.

According to Tom Frame, few Australians realise that the Australian constitution does not formally separate church and state. He argues that some contact between the two spheres is both inevitable and, in some circumstances, desirable. But there are continuing and unnecessary tensions, for which Christians are largely responsible. This book explores the nature of the tensions: how some can be resolved and others must be accommodated as a permanent feature of political life in a land without walls.

TOM FRAME

In this book he probes the complex relationship between church and state, which has resurfaced as a controversial issue in Australia. From the appointment of an archbishop as governorgeneral to churches tendering to provide government services, the influence of religious organisations on government activity has raised again the question of whether a wall of separation should exist between organised religion and government.

UNSW PRESS ISBN 0-86840-916-2

BRIEFINGS A series of short, topical books exploring social, political and cultural issues in contemporary Australia, published in association with Australian Policy Online, www.apo.org.au

9 780868 409160

UNSW PRESS

Church and State Australia’s Imaginary Wall Tom Frame