By Professor Denise Meyerson. This article is part of our February 2013 focus on Religion and Human Rights.
There are a variety of constitutional models governing the relations between the state and religion. These range from atheist states at one end of the spectrum to outright theocracies at the other. In between the two extremes, the extent of the contact between government and religious organisations is a matter of degree. So far as Australia’s arrangements are concerned, the relevant provision is section 116 of the Australian Constitution, which states that the Commonwealth “shall not make any law for establishing any religion”. There is no such restriction on the legislative power of the States and Territories.
There is an obvious similarity between section 116 and the First Amendment to the United States Constitution, which states that Congress “shall make no law respecting an establishment of religion”. But what is meant by “establishing religion”? The two countries have a very different understanding of the meaning of “establishment” and, by implication, of the extent to which religion and state have to be kept separate as a legal matter.
In the United States, the First Amendment is understood to impose a stringent separation between religion and the state. The state is required to be “neutral” towards religion. Neutrality commands that laws must have a secular purpose: laws that have the objective of advancing or endorsing either a particular religion or religion in general will be struck down as invalid by the Supreme Court of the United States. More importantly, neutrality also demands that laws must not have the effect of assisting a particular religion or religion in general, regardless of their purpose.
Applying this approach, the US Supreme Court has disallowed religious activities in public schools, such as prayers and religious instruction. It has also disallowed state funding of religious schools. The Court reasons that even if the funds are intended for legitimate secular activities or purposes, such as the maintenance and repair of classrooms, the funds assist religious schools to advance their sectarian goals. For instance, religious classes will be held in the classrooms that the state has paid to maintain and repair. Furthermore, if the state were involved in monitoring the use of funds, to ensure that they are used only for secular purposes, such surveillance would illegitimately “entangle” the state with religion.
On this “wall of separation” view, the point of the First Amendment is not to guarantee the equal treatment of religions. The First Amendment can be breached even if a law benefits all religions equally — so-called “indiscriminate establishment”. Instead, the point of the establishment clause is to guarantee the equal treatment of believers and non-believers. The need to protect non-believers against discrimination goes very far, with the Supreme Court saying that any endorsement or sponsorship of a particular religion or religion in general sends a message of inferiority and exclusion to non-believers.
In Australia, the constitutional guarantee against “establishment” has been given a much more restricted reading. The High Court of Australia has found that the point of section 116 of the Constitution is merely to prevent the Commonwealth from passing laws that are intended and designed to establish a state religion, such as the Anglican Church in England, which has special privileges and is also subject to state control in certain matters. This interpretation led the High Court to hold in the DOGS case that public aid to religious schools does not breach section 116. The case dealt with Commonwealth statutes that granted money to the States on condition that the money was paid to non-government schools, many of them religious schools, to finance their educational programs, including the construction of buildings. The Court upheld the statutes.
It is obvious that the US insistence that laws may not be passed if they have the effect of advancing religion imposes certain disadvantages on religion that are not imposed by the Australian approach to establishment. Which approach is preferable?
Some critics of the US approach claim that the supposed “neutrality” of the state towards religion in the US is a myth. According to these critics, refusing to assist religion is anything but neutral. On the contrary, it is the equivalent of hostility to or bias against religion. Some go so far as to say that state neutrality is the “religion” or “established church” of atheists and that those who insist on neutrality are as fanatical and “fundamentalist” as those who seek to impose their religious beliefs on others.
Although there is no doubt that many people find this argument seductive, I believe that it is confused. In my view, there are strong reasons for thinking that the US approach to the separation of church and state is preferable to the Australian approach and for rejecting the accusation that state neutrality towards religion is anti-religious.
In my view, the reason why the state should be neutral on religious matters is because this is the only way to treat everyone with mutual respect given the fact, emphasised by the political philosopher John Rawls, that reasonable people disagree on matters of religion. A state that accepts the fundamental moral equality of all citizens does not takes sides on matters about which reasonable people disagree. If one accepts this view, it follows that public aid should not be given to religious schools. Of course, parents should have the option to send their children to religious schools. However, the government should not be in the business of subsidising their choices. This is because public money should not be used in a way that assists the propagation of views about whose value reasonable people disagree. To do so is an illegitimate use of governmental power.
Furthermore, contrary to the claims of the critics, state neutrality on religion is not the equivalent of the state imposing atheism. An atheist state would be biased against religion because such a state would actively support atheism and actively discourage and even attempt to eradicate religion. However, a neutral state would not do this. The neutral state is not founded on belief in the non-existence of God and it does not attack religious beliefs as false or irrational. Instead, it refrains from taking any position on religious matters, leaving people free to believe and act as they please in their private lives, provided only that they do not violate the rights of others.
The most that can perhaps be claimed is that if the state does not provide symbolic and practical support to religious organisations, this will have the effect of diminishing the attractions of religion. Perhaps state withdrawal from religion will marginalise religion and lead to the increasing secularisation of society. However, even if we assume that state neutrality will have detrimental consequences of this kind for religion, it is hard to see how this could amount to bias against religion. If religion is independently attractive, state refusal to aid it should make no difference. And if it is not independently attractive, why should it be given an artificial boost by the state? If anything, that would be biased, because it would distort independent assessment of the merits of religion and irreligion.
Although the Australian Constitution appears to entrench the principle of separation between religion and the state, the guarantee is of little practical importance, given the High Court’s view that section 116 does not prohibit the state from encouraging or giving aid to religion and that there is no constitutional obstacle to laws that indirectly assist the religious to further their religious goals. In my view, the state neutrality approach is preferable because it is of the essence of separating the state and religion that governmental acts should not serve interests whose value is evident only on the basis of personal insights and revelation. The exercise of state power should be confined to serving interests whose value can be supported by evidence and arguments that everyone can understand, regardless of their religious views.
Denise Meyerson is a Professor of Law at Macquarie University. She researches and teaches in the areas of jurisprudence, constitutional theory and comparative human rights law. Her most recent book is Jurisprudence (published by Oxford University Press, 2011).