Same difference? A comparison of the ‘Establishment Clause’ in the Australian and United States constitutions

Meredith Doig / 18 November 2014

This article was first presented by Professor Helen Irving at the “Separating Church and State: Keeping God out of Government” national conference in Melbourne, June 2006. The conference was organised by the Australian National Secular Alliance, the Council of Australian Humanist Societies and the Rationalist Society of Australia.

THE First Amendment of the United States Constitution is best known for its protection of free speech, but it actually begins with two statements about the place of religion in American law.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …

In Article VI – that is, in the core of the Constitution – the  United States Constitution also states that ‘no religious test shall ever be required as a qualification to any office or public trust under the United States’.

The Australian Constitution includes a provision that combines these two, and is almost identical in its wording:

Section 116. 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.

This provision, as we see, not only follows the American, it also adds a prohibition against any Commonwealth law that imposes religious observance. In the words of Australia’s Chief Justice John Latham, in 1943, it thus ‘proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion’.

The similarity between the Australian and the United States constitutional provisions is not accidental. Australians in the 19th century were highly conscious of the history of religious conflict, of sectarianism, and religious oppression. The Australian context was a little different from America, where the experience of the persecution of minority religious sects had been directly relevant to the original founding, and where religious freedom, as a consequence, was already protected in several of the state constitutions, even prior to the break from Britain (some constitutions, however, included religious tests for public office). In Australia, it was sectarianism – conflict between Protestants and Catholics – that raised concerns, and provided the historical background for the framers of Australia’s Constitution.

By the time of Australia’s constitution-making in the 1890s, most of the Australian colonies had faced the sectarian issue, and in particular focused questions of state financial aid to schools. From the 1870s, when the colonial parliaments began to pass laws for compulsory education, the decision was taken in most colonies to refuse financial aid to religious or parochial schools. At the same time, state schools – free and open to all children – were to be secular.

This commitment to secularism was not necessarily high-minded or noble, any more than the American framers’ commitment to free religious exercise necessarily  was.  But, unlike in the United Kingdom where the Church of England was established, it represented a particular notion of the sphere of government that was shared more with America than with England. Church and state, the Americans and the Australians believed, belonged to separate spheres – to God and Caesar, to the private and the public. Religion was a matter of private conscience and government was a matter of public office.

In the United States, the so-called ‘wall of separation’, a term used first by Thomas Jefferson, describes the distinction  between religion and government.  This — despite everything we might think we know about American religiosity, tele-evangelists, and Presidents who proclaim that Jesus is their favourite philosopher — is still an article of faith of popular constitutionalism in the US. It is true, as many have noted, that the wall of separation is not as absolute as it once was, and expressions of concern about its erosion are growing. But, as I will explain shortly, the constitutional interpretation of the ‘establishment clause’ is still much more stringent in America than the equivalent in Australia.

Culturally, while many more Americans are openly religious than Australians, there are still surprising manifestations of official secularism. For example, America has a relative absence of public holidays for religious festivals. Christmas Day alone is a holiday. Americans work on Good Friday and Easter Monday, as they do on Passover, Ramadan, and all the rest. Instead, they celebrate a host of historical events in their public holiday calendar – Independence Day, Memorial Day, Veterans Day, Thanksgiving, Washington’s Birthday, Labor Day, Martin Luther King’s Birthday, and more – compared to Australia’s three or so historical national holidays.

One can say, with some qualifications, that there is a constitutional separation of church and state in the United States. But, despite having the same words in our Constitution, can we say the same about Australia?

The answer is complex. The simple answer is this: if we consider the constitutional position, Australia does have a separation of church and state. However, this has not been properly recognised, either by the High Court or by government, as it has in the United States. We see this in a comparative examination of the constitutional law surrounding the American establishment clause and Australia’s section 116. My view is that the Australian High Court has effectively got it wrong when it comes to interpreting the Constitution, from an originalist perspective , that is to say, if you think the Constitution should mean what the framers or founders wanted it to mean, then the High Court has been mistaken in its interpretation of this section. However, if you think that the Constitution should mean what we – the Australian people of today, and not our forefathers – want it to mean, then the answer is much more complex. But, here, I think the answer has also shifted in the last while.

A couple of  years ago, I wrote  about what I saw as a worrying trend in Australian government: the increasingly open identification of senior members of government with religious organisations, and their declarations about the foundation of Australian law. The Treasurer, Peter Costello for example((This article was presented in 2006)), placed his religious speeches on his Treasurer ‘s website; and among other things, he made claims that Australia’s law was based on the Ten Commandments. The Prime Minister openly supported religious initiatives like the National Day of Thanksgiving, and declared Australia to be a Judeo-Christian country. In 2001, he appointed an archbishop of the Anglican Church as Governor­ General; he publicly expressed support for religious leaders, including on occasions when their conduct was controversial, even potentially subject to legal proceedings.

All of these actions, I believe, were contrary to the spirit of the constitution – although not, I stress, unconstitutional in a legal sense. This is because the Australian Constitution prohibits the making of laws for religion, and does not constrain executive conduct or pronouncements. Such conduct would not be unconstitutional in the United States either, but they would be considered constitutionally inappropriate, because the constitution there is understood as much more than merely the black letter words on the page. For good or evil, it has a larger life in America than here, and the separation of church and state in spirit as well as law, de facto as well as de jure, is taken seriously.

Since the time I wrote my piece, however, a small shift is discernible. It may be significant. I don’t imagine that Mr Costello or Mr Howard or other religious members of government have changed their beliefs, but they have at least had the opportunity to reflect on the value of secularism. Notably, both the Prime Minister and the Treasurer, having declared in the past that Australia was a religious country, recently stated that Australia is a secular country. Have they been reading the constitution, and finally got up to section 116? I doubt it. The context was, of course, a rejection of statements by Australian Islamic clerics publicly promoting their religion and defending sharia law, in part as a defence against the many attacks to which it has been subjected in recent times. ln an interview in February this year, Costello said: ‘l think we can offer a tolerant Australia which respects the rights and liberties of all as long as we’ve got agreement on a few key points. One is a secular  state.’

So, Australia is a secular country. I agree with the Treasurer. The framers of Australia’s Constitution intended Australia to be secular. They intended to erect a ‘wall of separation’ between church and state, following the United States example. They copied the United States Constitution in this respect, word for word. They incorporated an extended prohibition on establishing an official religion; and included a protection of freedom of religious conscience.

However, contrary to this intention, the High Court of Australia has interpreted the constitutional provision in such a way as virtually to deplete it of meaning. Unlike in the United States, we don’t have a great deal of case law in Australia concerning this section of the Constitution. Among the three or four section 116 cases that have come before the High Court, one alone has dealt with the prohibition on the establishment of religion. This is the Defence of Government Schools (DOGS) case of 1981 – in which the High Court, reaching a diametrically opposed conclusion from the position taken in the United States at the time – found that government funding of religious school was not unconstitutional. I will come to this shortly.

First,I turn to the framers of the Australian Constitution. They wrote the section prohibiting the establishment of a religion and protecting religious worship or absence of religion. Since the Constitution was written over many years, painstakingly, with close attention to, and much debate about each section, we can assume that they meant something by it.

In tracing the provenance and evolution of this provision in the Federal Conventions, we need to note that section 116 was incorporated into the Constitution in two phases:at the first Federal Convention in 1891 and at the second in  1897-98. It was finally included at the second Federal Convention, that is, the Convention where the Constitution was completed, prior to being approved both at a referendum by the Australian people, and in the colonial parliaments, and then enacted by the Imperial Parliament.

The section was adopted following the Convention’s decision to include certain words in the Constitution’s preamble that are entirely absent from the United States Constitution. These words are: ‘humbly relying on the blessing of Almighty God’. The Constitution ‘s preamble states that the people of the Australian colonies have agreed to unite in one indissoluble federal Commonwealth ‘humbly relying on the blessing of Almighty God’. It is sometimes suggested that section 116 was only included because the Convention had agreed to this statement of pious hope, and that some feared at the time that this might lead to an association between the new Commonwealth of Australia and an official religion.

It is true that section 116 was finally adopted at the second Convention, following the decision to include these words in the preamble. However, the anti-establishment provision had been proposed at the first Federal Convention, in 1891, and adopted in the first draft of the Constitution. It was not, in other words, merely a provision for mitigating the effect of recognising God in the preamble.

The words in the preamble were moved at the first session of the second Convention, at Adelaide in 1897, by one of the few Catholic delegates at the Federal Convention, Patrick Glynn from South Australia. Glynn spoke to his motion very movingly; importantly, for our understanding of what the framers of the Constitution intended, he spoke in an ecumenical spirit, not only with regard to Christian denominations, but regarding all religions. He, and the supporters of his motion, emphasised that it was intended to speak to all religious persons, and to be expressive of hope rather than substantive practice or law.

However, even with such a reassurance, the proposition to incorporate a reference to God in the preamble was defeated when it was first moved. The arguments against such a reference were equally powerful.

Note, in particular, the words of Edmund Barton, leader of the Convention, first Prime Minister, and one of the first Justices of the High Court of Australia. Barton was a socially conservative and religious man. Yet he was firmly of the view that there was a conceptual distinction between religion and politics:

The whole mode of government, the whole province of the State, is secular … In these colonies, where State aid to religion has long been abolished, this line of demarcation is most definitely observed, and there is no justification for inserting into your secular documents of State provisions or expressions which refer to matters best dealt with by the churches.

The motion to insert a reference to God in the preamble was initially defeated, but it was proposed again at a later session of the Convention. This followed a barrage of petitions from churches and religious organisations asking for a recognition of God in the Constitution, as well as many similar motions coming from the colonial legislatures.

Patrick Glynn again moved the motion, emphasising that the words were not intended to be specifically denominational: ‘The words I wish to insert are simple and unsectarian. They are expressive of our ultimate hope of the final end of all our aspirations, of the great elemental truth upon which all our creeds are based, and towards which the lines of our faiths converge.’ One supporter, John Quick of Victoria, added that ‘these words could be subscribed to not only by Roman Catholics and Protestants, but also by Jews, Gentiles, and even by Mahomedans.’ Therefore, although this does not dispose of the claim that Australian law is based in religion, it does challenge claims like those of the Treasurer, that it is based specifically in the Christian religion.

Edmund Barton again opposed the motion, reminding the Convention of the danger, as he saw it, that such words might serve sources of power, as authorising religious laws by the Commonwealth. But the motion this time was successful. Its passage led quickly to a proposal by Victorian delegate, Henry Higgins, to include the provision which is now section 116.

Higgins, a committed secularist and a public campaigner against compulsory religious education in state schools, was suspicious of the motives of those who proposed the words in the preamble. Their motives, he believed, were political. They aimed at religious laws, and effectively sought the entrenchment of laws supporting Christian worship. He was adamant that such a section was needed as a protection against both religious intolerance, and against government interference in matters which concerned individual, private affairs.

Barton was more circumspect with respect to the proposed section 116. He worried, he said, about ‘loading’ the Constitution with prohibitions against dangers that were ‘practically non-existent’. He reminded them that the 1891 version of this section constrained the states, prohibiting the states from passing  religious laws, and that it had been dropped at the start of the Second Convention because the delegates were convinced that, even if the states were free to establish a religion, they never would. This was in keeping with the Australian framers’ general opposition to erecting constitutional barriers against what they regarded to be imaginary dangers.

‘If I thought,’ said Barton, ‘there was any, the least, probability or possibility, taking into consideration the advancement of liberal and tolerant ideas that is constantly going on [of interference in religion] … I might be [for the motion]’. But if, he continued:

as this progress goes on, the rights of citizenship are more respected; if the divorce between Church and State becomes more pronounced; if we have no fear of a recurrence of [religious persecution] … then I do suggest that in framing a Constitution for the Commonwealth of Australia, which we expect to make at least as enlightened, and which we expect to be administered with as much intellectuality as any of the other Constitutions, we are not going to entertain fears in respect of the Commonwealth which we will not attempt to entertain with respect to any one of the states.

George Reid, Premier of New South Wales, then put it to Barton: ‘I suppose that [public] money could not be paid to any church under this Constitution?’ And Barton replied, ‘No; you have only two powers of spending money, and a church could not receive the funds of the Commonwealth under either of them.’

Other delegates were not, however, so sanguine. Bernhard Wise of NSW warned against the possibility of a recrudescence of religious persecution:

What I fear is that we have not yet any sufficient security against a revival of the feeling which has existed for centuries … [and) which I believe, still exists in the hearts of hundreds and thousands of men only waiting for an opportunity to assert itself.

If we put in Mr Higgins’ amendment we shall remove those fears and establish a sound principle, and … commend the Constitution to a very large number of those who at present are doubtful as to its effects.

Here, he also drew attention to the large number of signatures on petitions received by the Convention since the adoption of the recognition of God in the constitution’s preamble opposing their inclusion.

The debate concluded with the adoption of section 116 by a majority of 25 to 16. It is important not to suggest that the delegates had a single or uniform position on this question. Some favoured the provision because they feared the revival of religious persecution. Others voted against the provision because they believed that such a fear was unfounded, even outrageous. Some supported the provision because they thought it inappropriate for the new nation to contemplate laws that made a show of its faith; others opposed it because they feared it would prevent the Commonwealth from passing laws prohibiting barbaric religious practices (like the Hindu suttee). But none of the delegates who supported the religious reference in the preamble or who opposed section 116 did so because they openly wanted an established church or favoured laws mandating religious practice or observance. No one among them said, as our Treasurer has done, that Australia ‘s law was founded on the Ten Commandments. Those who wanted a religious reference spoke of their desire to elevate the spirit behind their work – not of any intention to encourage or even permit state support for religious practice or worship.

Whatever their particular motives, it is clear that the framers of Australia’s Constitution did not contemplate the mingling of church and state. In taking this position they drew much, both positively and negatively, from the United States constitutional example. From there, however, Australia has largely departed from this example.

It is one thing to prohibit the establishment of a religion, it is another thing to know exactly what laws establishing a religion might look like. Let us look first at the American view.

The First Amendment establishment clause was not originally held to rule out a range of things that would be prohibited today, for example, the proclamation of a national day of prayer and thanksgiving. President Washington made such a proclamation soon after the constitution had taken effect. Federal funds were allocated to pay a chaplain to serve Congress. In the 1890s, the Supreme Court was to declare that the United States was a Christian nation, and to make exceptions in labour laws for Christian ministers, or to permit state religiously-motivated laws, such as the Illinois law that forced the Chicago World Fair to close on Sundays. The Australians were well aware of this example and debated it at length.

lt was not until the mid-20th century that cases concerning the Establishment Clause really started to come before the United States Supreme Court (we should note that none of the provisions of the Bill of Rights received much attention before in the 19th century, even indeed well into the 20th). In 1947, in Everson v Board of Education, the Supreme Court stated that the establishment clause meant that:

neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither … can, openly or secretly, participate in the affairs of any religious organisations or groups and vice versa.

ln the 1960s, a ‘deluge’ of challenges began, and the Supreme Court started to apply a so-called ‘strict separationist’ approach to interpreting the establishment clause. It developed the so-called ‘Lemon’ test, named from the leading case in 1971, under which a law would be unconstitutional if its ‘purpose’ or ‘principal or primary effect’ was  to promote religion, or if it promoted excessive ‘entanglement’ between church and state.

The case, Lemon v Kurtzman, concerned laws in Pennsylvania and Rhode Island that, respectively, gave financial support for teaching secular subjects, and paid salary supplements to teachers in private schools. These funds, although designated for secular purposes, were held to foster an ‘excessive entanglement’ between state and religion, because ‘continuing state surveillance’ would be necessary to enforce the specific provisions of the law, including the requirement that the funds be used for secular purposes.

Under the Lemon test, a range of state laws were struck down, including a Kentucky law requiring the display of the Ten Commandments on the wall of public school classrooms. The ‘high tide’ of this approach came in the mid- 1980s, when a ‘moment of silence’ for meditation or voluntary prayer at the  start  of  the  school  day was a regarded as a law manifesting the ‘purpose’ of promoting  religion.

Our main concern here, in terms of an Australian comparison, is the question of public funding for religious schools. Public benefits,  including indirect funding and tax exemptions for religious organisations, have historically been common in the United States and have been tolerated by the Supreme Court. But the big and highly controversial issue was direct funding, specifically to religious (parochial) schools. Numerous state programs of financial support for parochial schools have been struck down in the United States.

It was during this strict separationist period that the one Australian case on the establishment clause of section 116 was heard – the DOGS case. In a ‘relator’ case (ex rel), that is, acting with the support of the Attorney-General of Victoria, the DOGS association brought a challenge against Commonwealth funding for private schools, the majority of which are religious schools, on the grounds that it was prohibited  by the Constitution. The case drew heavily on United States examples. With one dissent, however, the High Court dismissed this challenge. The majority held that ‘establishment’ of a religion, in the words of Justice Wilson, ‘involves the deliberate selection of one [church] to be preferred from among others, resulting in a reciprocal relationship between church and state which confers and imposes rights and duties upon both parties.’ By establishment, (then) Justice Mason added, ‘the concession to one church of favours, titles and advantages must be of so special a kind that it enables us to say that by virtue of the concession the religion has become established as a national institution.’

Chief Justice Barwick balanced his particular conclusion on the head of a pin; he drew attention to the difference in language between the United States and the Australian establishment clauses. The former says ‘respecting’ a religion, and the latter says ‘for’ a religion. The word ‘for’ in the opinion of the Chief Justice, set down a much narrower, more stringent test for violation of the provision: in the Australian case, the establishment of a religion must be the purpose or single objective of the law – a law for establishing – whereas ‘respecting’ does not require a single purpose. ‘In my opinion’, Barwick said, ‘a law which establishes a religion will inevitably do so expressly and directly and not, as it were, constructively.’

The one dissent was that of Justice Lionel Murphy, who drew heavily on the United States case law, as the plaintiffs had invited the Court to do. Murphy J dismissed the distinction between the words ‘for’ and ‘respecting’, pointing to an Oxford Dictionary definition of the former in which the latter was embraced or included, and drawing attention to the marginal note in the Constitution itself – a type of sub-heading – which refers to the prohibition on laws ‘with respect to’ religion. But, even if ‘for ‘ was as narrow as Barwick suggested, Murphy said, the meaning of establishment itself was broad enough to include funding to religious schools. It also encompassed giving preference, by sponsorship or support to any religion over others.

Section 116 contained a great right, and ‘great rights’, Murphy stated (quoting himself from an earlier case) ‘are often expressed in simple phrases. It would detract greatly from the freedom of and from religion guaranteed by those clauses if they were to be read narrowly. ‘ To interpret this section as prohibiting only the establishment of a single religion is to misread it: the section refers to the establishment of any religion. It works thus as a guarantee of freedom from religion, as well as of religion.

To conclude that the provision prohibits more  than just the official identification of a single church as an integral part of the state – and that Australia has, whether it recognises it or not, a constitutionally mandated separation of church and state – is not necessarily to reach the conclusion that government financial support for religious schools should, or would be struck down as in breach of this prohibition.

Even in the United States, the absolute ban on funding of parochial schools has been modified in recent years. A governmental scheme for funding school children through vouchers that could be used at either parochial or secular private school (if parents chose not to send their children to a public school) was upheld by the Supreme Court in 2002. Although it was argued that this scheme encouraged attendance at parochial schools and therefore promoted religion (and effectively coerced tax-payers to subsidise religious instruction) the Supreme Court (albeit  by a narrow majority) emphasised the ‘neutrality’ of the voucher program. The vouchers could be cashed in at secular schools, as well as religious schools. They did not promote religion, but, the Court said, facilitated, ‘the genuine and independent choices of private individuals.’

Maybe. But regardless of this, we need to understand that no constitutional right or freedom is absolute; there are always legitimate exceptions. The public funding of religious schools might be regarded as one of these legitimate exceptions, so long as there is genuine universality and neutrality. It may be defensible on public policy grounds relating to the desirability of educating all children, as far as possible, equally and equitably. It is not my purpose to defend this particular argument – it goes beyond the constitutional question. My point is that, even with a clear recognition that section 116 of the Constitution mandates separation of church and state, there will still be argument about what constitutes a breach of this mandate, and, secondly, what is permissible, even where some degree of breach is established.

My conclusion, however, is that the High  Court got it wrong when they concluded that section 116 was not intended as a broad statement of separation of church and state; and they got it wrong in suggesting that ‘establishment’ was intended to have a narrow meaning. The Prime Minister and the Treasurer got it wrong in overlooking the spirit of this provision. The history of sectarianism, and religious persecution, which the framers understood well, and which served as a background to their deliberations on both the reference to God in the preamble and their inclusion of a prohibition on religious laws, suggests that they had a wide purpose and scope in mind. They appreciated the multiple dangers inherent in allowing governments to involve themselves in religious matters.

In pointing out that section 116 represents a statement of separation of church and state in Australia, I have often been met by the observation that the Constitution only prohibits the Commonwealth from establishing a religion, or requiring religious worship, etc. The states are constitutionally free to interfere in religious matters – and this, opponents will argue, suggests that the framers of the Constitution did not have separation of church and state in mind.

There are several responses to this. First, as I mentioned, the original version of section 116 expressly prohibited the states from passing religious laws.  It was dropped, not because the framers wanted the states to pass such laws, but because they considered this to be a matter for the states, and furthermore, something that the states would be so unlikely to engage in, that it needed no prohibition. The colonies – about to be transformed into states -had, indeed, shown their determination to keep church and state separate, in refusing to fund religious schools and in disallowing religious worship in state schools.

The establishment clause in the United States Constitution is, similarly, directed at Congress – that is, the federal legislature. It was only in the second half of the 19th and into the 20th century, that all of the amendments that make up the Bill of Rights were regarded as constraining the states as well as federal government.

The establishment of a religion, or tests for public office and so on, at the national level is precisely the sort of extreme that the framers feared – where religious pluralism and, indeed, freedom from religion – are smothered. The framers of Australia’s Constitution worked with the knowledge and historical memory of religious conflict and religious persecution. Even the most devout among them acknowledged that religion and government occupied separate spheres. The historically well-educated also understood the dangers of ‘entanglement’ between religion and state.

We are, I think, beginning to understand this again in the 20th century, at least with respect to other countries. We may yet want to reconsider our own constitutional protection against such entanglement, and may find ourselves grateful for the foresight of our founders.

Prof Helen IrvingHelen Irving teaches Australian, comparative, and United States constitutional law. She has researched and written on the making of the Australian Constitution; comparative constitutional design and gender; the use of history in constitutional interpretation; and the ‘dialogue’ model of judicial review. Her current major research, supported by a four-year ARC Discovery Grant, is on the history of constitutional citizenship and gender.



All the more reason.