National Day of Reason: Is Australia a secular liberal democracy?

1 05 2008

And if it isn’t, should it be?

I’ve been engaged in discussion with Ninglun over these very questions, and it seems to me that the answer lies in how Section 116 of the Australian Constitution is interpreted. The section reads:

Australian Constitution – Section 116 – Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. [Emphasis added]

Ninglun’s position is that while Australia may officially “neutral” with regard to religion, it cannot be described as “officially secular.” Mine is that Australia cannot possibly be neutral with regard to religion unless it is secular. If an Australian government takes a policy position that is based upon a religious doctrine–a policy position for which no secular, well-reasoned justification is offered–then it is effectively imposing observance of that particular religion. It is privileging one particular religious perspective over the perspectives of other religions as well as the non-religious, and would therefore be neither neutral with regard to religion, nor secular.

Why is it important that governments in liberal democracies, in pluralistic societies like ours, present to the electorate secular, well-reasoned justifications for their policy positions? Because they need to speak to us in a language that we all–not just the majority, but all of us–can understand and engage with. Barack Obama puts it much better than I ever could:

Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values. It requires that their proposals be subject to argument, and amenable to reason. I may be opposed to abortion for religious reasons, but if I seek to pass a law banning the practice, I cannot simply point to the teachings of my church or evoke God’s will. I have to explain why abortion violates some principle that is accessible to people of all faiths, including those with no faith at all.

Anything less is neither liberal nor democratic.

Another area where Ninglun and I seem to differ is over the meaning of the term “secularism.” I think the IHEU definition has it right: “A neutral attitude, especially of the State, local government and public services, in matters relating to religion; non-religious rather than anti-religious.” I have a hunch, and I am very happy to stand corrected, that Ninglun reads “secular” as “anti-religious.” There is probably a touch of the latter–what we might call “strong secularism” (by analogy with “strong atheism”)–in the French model, under which the wearing of conspicuous religious symbols in public institutions is banned. That kind of secularism is not the kind I favour–it is illiberal and it constitutes a breach of the separation of church and state–but it is important to remember that just as atheism is inclusive of but does not exclusively mean strong atheism, secularism does not exclusively imply strong secularism.

(P.S. Yes, I know the National Day of Reason is a U.S. thing, but I want this post to stand as an endorsement of it.)

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9 responses

1 05 2008
Sean the Blogonaut

I have a book on constitutional Law at home I look it up in answer to your first question.

On Secular I have always taken it to mean the neutral definition, not that I think I am necessarily right though.

1 05 2008
Kieran Bennett » Turns out there is actually no separation of church and state in Australia

[…] Turns out that AV over at Five Public Opinions and Ninglun are also debating the meaning of s.116 at this very […]

1 05 2008
Kieran Bennett

The crucial case is State Aid/DOGS, in which the High Court basically decided to narrow the definition of “establish” to exclude a strict separation of church and state. You can read it here at Austlii.

I just blogged about it, having only just found out about the issue thanks to Max Wallace’s The Purple Economy. Definitely worth a read if you’re interested in the (non)separation of church and state in Australia.

1 05 2008
Bruce

I tend to agree with you Arthur (sorry Neil).

Although, I think we need some High Court cases to sort this out. We really need an organisation with sufficient funds to go around and start some test cases.

1 05 2008
ninglun

Interesting discussion, Arthur; in your qualification here There is probably a touch of the latter–what we might call “strong secularism” (by analogy with “strong atheism”)–in the French model, under which the wearing of conspicuous religious symbols in public institutions is banned. That kind of secularism is not the kind I favour… we actually move quite close.

Australian Constitution – Section 116 – Commonwealth not to legislate in respect of religion

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Note I have removed the emphases as all four caveats have equal weight. It strikes me, to venture where I am no expert, that this is framed in the context of British history and law. Australia was definitely on the side of the disestablishmentarians, in that long and very British (and now largely forgotten) controversy, which was however very much part of the 19th century experience our constitutional framers brought to the task. It is in fact a view that pragmatically Governor Bourke had brought to bear in NSW in 1833.

I guess because of my reading in recent months — Norman Davies, Frank Welsh (Great Southern Land, and even Edmund Burke — I have become very conscious of our institutions having a very different genesis from those of countries which were profoundly affected by either the French or American Revolutions, or the 1848 risings. Essentially we were not deeply affected by them. Even our Labor movement owed as much if not more to Methodism than it did to Marx, a point Lenin made about it, and he wasn’t being flattering but neither was he entirely wrong. I think there is a background to our ideas of church and state and their relations that we as Australians could well consider: they have come from a different matrix to those of the USA or, as we both mentioned, France.

Nothing in that section of the constitution, it seems to me, would prohibit such things as state aid to church schools — or Islamic schools — so long as such aid was not seen to discriminate in favour of or against any particular religion. Nor does that section of the constitution make invalid tax breaks for religious institutions, again so long as the same breaks apply to all religious institutions. Now there are several cans of worms in there, I admit. I hasten to add I am not any kind of lawyer, let alone a constitutional one.

Guess you also read the Keiran Bennett backtrack above; I got one too and find it quite interesting.

1 05 2008
Kieran Bennett

What state aid to religious schools discriminates against is freedom from religion. The non religious subsidize religious indoctrination, thus establishing religion over non-religion.

Of course the whole point is that the High Court does not believe that s.116 establishes freedom from religion, unlike the situation in the US. Religion can be established over non religion, so long as one religion is not establish over another.

I’m glad you enjoyed my post.

1 05 2008
arthurvandelay

On state funding of public schools, I’ve stated elsewhere that I’m not opposed to it in principle–on the grounds that money spent on education is money well spent–but I am opposed to those schools being granted special exemption from anti-discrimination laws that other institutions are obliged to follow.

3 05 2008
ozatheist

Arthur, I think you may have mis-interpreted the imposing any religious observance, section. To me the word observance relates to a religious practice (eg. Catholics sometimes use the term “observing Mass” meaning they are carrying out the rituals of a Mass). Thus the Commonwealth can’t make a law to, for example, make it compulsory to say Mass at the start of your work day; or, make every student face Mecca five times a day.

So to me ( a totally unqualified perspective) Section 116 doesn’t prevent the Commonwealth from creating a law based on religious doctrine, as long as that law doesn’t impose a religious practice on anyone that doesn’t want it.

At best the Commonwealth is ambivalent when it comes to secularism.

3 05 2008
AV

Oz:

You make an interesting point, but I don’t really see the distinction between religious laws and religious practices with regard to the phrase “imposing any religious observance.” Surely both laws and practices may be “observed”: or, to put this another way, surely a religion’s laws (or doctrines) govern rituals and practices (e.g. facing Mecca, attending Mass on the Sabbath, etc.) as much as they do moral/ethical questions?

So, if you’re right about s. 116 not preventing the Commonwealth from making laws based on religious doctrines, then it follows (it seems to me) that it could not proscribe the creation of laws based on doctrines governing religious rituals such as facing Mecca five times a day, or resting on the Sabbath.

That’s scary, but fortunately I don’t think it is the case. I think the drafters of the Constitution would have been more specific if they saw a distinction between the ritual/ceremonial and moral/ethical dimensions of religious doctrine, so I think “observances” may be interpreted as canvassing both dimensions. I also think that a distinction should be made between making laws based on religious doctrine, on the one hand, and making laws that happen to be consonant with religious doctrine but which can be defended on purely secular grounds, on the other. For instance, the fact that religions have their own laws against murder does not rule out enshrining laws against murder in the state penal code.

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