Religious Freedom in a Secular Society

Introduction

Thank you for your kind introduction.

It is a great pleasure to have been invited to speak on one my favourite topics: the importance of religious freedom.

While not being of faith myself, I believe strongly in the importance of religious freedom and the role it plays in guiding the full development of the human spirit, our morality and our respectful relationship to each other.

The importance of religious freedom

Freedom of religion is a close ally and friend of the absolute freedoms of thought and conscience. Government cannot regulate it, and nor should they. Equally, it is closely allied to freedom of expression.

But paralleling the manifestation of worship with expression doesn’t encapsulate the fullness of worship. As the Swiss-born 18th and 19th Century French politician, Benjamin Constant, outlined in his description of faith:

Whatever the cause of the emotion, it bears within it something which quickens the blood, arouses a kind of well-being, and heightens in us the sense of our existence and strengths. We become open to a generosity, a courage, and a sympathy above our everyday disposition. Even the corrupted man is better, when he is moved and as long as he stays moved.¹

Constant continued:

Man has a relationship with his creator. He constructs for himself or is given various ideas about his relationship. This system of ideas is called religion. Each person’s religion is therefore his opinion of his relationship to God. Each man’s opinion being free, he may take up or not take up such religion.²

In a more contemporary context, in his discussion of freedom of worship in his ‘Forgotten People’ speeches, Sir Robert Menzies articulated his interpretation of faith to people:

We grope out towards the light, seeing an occasional flash of beauty or of understanding, hearing occasionally the penetrating voices of reason. Civilization is in the heart and mind of man, not in the work of his hands. And in the heart of every man, whatever he may call himself, is that instinct to touch the unknown, to know what comes after, to see the invisible.³

In short, religion is about everyone’s relationship to their creator. It is more than just earthly expression. It has the potential to be the expression of an individual’s purpose based on the relationship to their creator, their capacity to fulfil that purpose and the judgment that they may receive as a consequence of their actions in a future life.

But it has earthly limits. Like expression, the manifestation of the freedom of worship is only justified to the extent that it inhibits the human rights of others.

For example, it’s uncontroversial that restrictions on the freedom of worship are justified if an ordinary crime is committed in the process.

But, even then, the nature of the human right of religion has sometimes been offered exemptions if an otherwise illegal practice is necessary to adhere to spiritual observance. It was a point I was reminded of recently that during the early 20th Century failed experiment of prohibition in the United States. In that experiment one of prescribed exemptions for purchasing alcohol was for the purpose of religious ceremonies.

Unsurprisingly there was a sudden spike in the number of religious practitioners and worshippers!

Religion in Australia

The role of religion in Australia is nuanced. The foundation of our country was not based on significant religious conviction or events, though it has never been absent from our national character.

If you want to read the diversity of views about the role of religion in Australian society I recommend consuming the Australian Human Rights Commission’s commissioned report into ‘Freedom of religion and belief in 21st Century Australia’ from 2011.⁴ It shows that diversity of views are more contrasting than ever. The diversity of views don’t just show that views are strong and deeply held, but that the entrenched positions are arguably becoming deeper, especially as a result of more religious institutions engaging in the provision of public services, such as education.

Based on the most recent census data from the Australian Bureau of Statistics, Australia is still a country where a majority have some form of faith, particularly some form of Christianity. The number of people who identify as Christian has been in decline since Federation; 96 per cent identified as Christian in 1911, but this fell to 61 per cent in 2011. Meanwhile only 7.2 per cent of the population identifies with a non-Christian faith, including Buddhism, Islam, Hinduism and Judaism. But importantly these faiths amount to 67 per cent of the population born overseas. Those with no religion total 22.3 per cent.⁵ While faith may be in decline, we are still a nation of faith.

While modern Australia technically originated from the benign theocracy of the United Kingdom, in practice we adopted an essentially Lockean approach to the role of government over religion. In his ‘A Letter Concerning Toleration’, John Locke argued:

The commonwealth seems to me to be a society of men constituted only for the procuring, preserving, and advancing their own civil interests.

Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.⁶

By comparison, Locke argued faith had a different purpose:

to be a voluntary society of men, joining themselves together of their own accord in order to the public worshipping of God in such manner as they judge acceptable to Him, and effectual to the salvation of their souls.⁷

According to Locke the role of government was not to advance religion. Though that relationship, at times, vacillated in the early colonies.

As outlined by Stephen McLeish in his 1992 article in the Monash University Law Review on religion and the Australian Constitution, religion has always had an intertwined relationship with government.⁸

The early colony of New South Wales compelled locals to attend Anglican services and funded the salaries of priests in a limited capacity. In my home State of Victoria, government aid was provided to Christian churches until 1870 when State funding for religious education ended to ensure the State was neutral in religious matters. Similar efforts were achieved a decade earlier in Queensland.

Obviously that was reversed by the Menzies government’s funding of independent schools in 1963.

Yet, despite the vacillating relationship between religion and government, legislative limits to regulate faith was one of the few efforts to establish protections of rights in the Australian Constitution. During the drafting process, restrictions on the Commonwealth to legislate on religion were proposed, rejected and proposed again before being adopted.

In his speech to the 1897 Constitutional Convention, future Prime Minister, Edmund Barton, encapsulated the view of the role of government over religion at the time:

The whole mode of government, the whole province of the State, is secular ... The whole duty is to render unto Caesar the things that are Caesar’s, and unto God the things that are God’s. That is the line of division maintained in every State in which there is not a predominant church government which dictates to all civil institutions ... The best plan which can be adopted as to a proposal of this kind, which is so likely to create dissension foreign to the objects of the any church, or any Christian community, is that secular expressions should be left to secular matters while prayer should be left to its proper place.⁹

There are four essential points about keeping the State separate to religion.

First, it ensures a secular State and alleviates tensions that can arise between different faiths by not fuelling religious sectarianism and factions.

Second, it limits the risk that the State can intrude between an individual and their God.

Third, it does not create barriers for individuals that have no faith.

Fourth, it protects faiths from the intrusion of government into its activities. Both ultimately advance the interests of religion. Again, quoting Benjamin Constant:

Government does no less harm and is no less impotent when, in the context of sceptical age, it wants to re-establish religion. Religion must be restored on its own according to man’s need for it. When you disturb him with alien considerations, you prevent him from feeling the full force of this need.¹⁰

This is a theme touched upon more recently by Harvard historian, Niall Ferguson. In many of his works he has outlined that one of the reasons for the ongoing survival of the church in the United States has been the role of competition. Whereas in his native England, the church is essentially a State monopoly, by comparison, in the United States competition continues to drive the expansion of people to sit on pews.

I would argue that the role of religious institutions in a modern democracy is incredibly important in providing a counter balance to the power of government.

The Constitution also determines the relationship between the State and religion in Australia. On the matter of government involvement in religion there are strong parallels between the drafting of the Australian and United States Constitution. But the interpretation has been very different. In the context of the United States, the prohibition has been defined broadly and acted as restriction of any religious advancement by government. By comparison, the Australian High Court has interpreted this section narrowly and ‘does not guarantee an area of individual immunity from governmental interference in religion’.¹¹

As identified by UNSW’s Professor of Constitutional Law, George Williams:

The narrow meaning of ‘establishing’ a religion given in the DOGS Case [the case that upheld the Commonwealth’s capacity to fund religious schools] means that s 116 provides a much less robust level of rights protection than the First Amendment to the United States Constitution, which has been understood to prohibit government from appearing to take a position on questions of religious belief or making adherence to religion relevant to a person’s political standing.¹²

So while the Constitution requires the Commonwealth government to stay out of religion, in practice the limitations on government are relatively narrow and focus primarily on the establishment of religion.

In Australia the role of government is to be secular. But that is not the nature of Australian society. We are not a secular society, we are a pluralist society. That means everyone is entitled to their faith, and to express it so long as they do no harm to others.

But pluralism means more than just faith. It also means pluralism for people based on other factors, such as ethnicity, gender or sexual orientation. To have a pluralist society we have to have laws that respect everyone’s individuality and accommodate for everyone’s unique needs, this is especially true for religion.

Preserving religious freedom is an issue that is regularly raised with me, from ensuring that religious schools are free to choose their teachers through to preserving religious freedom should the law change around marriage.

Ensuring religious freedom is preserved requires active engagement from religious communities in any process of reform. I believe that the Marriage Act should change. I also strongly believe religious communities should not be forced to act against their conscience.

Both can be achieved if we act mindfully of the need to address both the principle of equality before the law and religious freedom.

But that requires engagement on any proposal for change, not opposition to change. And understanding that in a free society the role of government is to be secular so that society can live up to its pluralist ambitions.



Thank you.