The Wall of Separation: Section 116, The First Amendment and Constitutional Religious Guarantees
| Author | Joshua Puls |
| DOI | 10.22145/flr.26.1.6 |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
| Subject Matter | Article |
THE WALL OF SEPARATION: SECTION 116, THE FIRST
AMENDMENT
AND
CONSTITUTIONAL RELIGIOUS
GUARANTEES
Joshua Puls*
INTRODUCTION
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 aqualification for
any
office
or
public
trust
under
the
Commonwealth.
Constitution
of
the
Commonwealth
of
Australia
l
Congress
shall
make
no
law
respecting
an
establishment
of religion,
or
prohibiting
the
free exercise
thereof
...
[N]o religious
Test
shall
ever
be
required
as aQualification to
any
Office
or
public
Trust
under
the
United
States.
Constitution
of
the
United
States
of
America
2
The
Australian Constitution expressly guarantees very few
individual
rights.3
One
of
its rights-conferring provisions is s116. Incongruously situated
in
the
Chapter
dealing
with
the States, s116 prohibits the Commonwealth from,
amongst
other things,
legislating against the free exercise of religion or for the establishment of
any
religion.
The
United
States Constitution,
by
contrast, includes acomprehensive Bill of Rights
which
includes asimilar,
though
not
identical, religious guarantee.
In
very
different
contexts therefore
both
the
High
Court
of Australia
and
the
Supreme
Court
of the
United
States of America
have
adjudicated
upon
asimilar constitutional provision.
The courts of Australia
and
the
United
States have been,
and
will continue to be,
required
to
address
several
important
issues relating to these provisions. Courts
need
to decide
how
far the religious guarantees extend. The resolution of this question
depends
primarily
on
the definition of religion
adopted
by
the courts. This is of course
atask
laden
with
value
judgments,
but
atask which
cannot
be avoided. The extent to
which
the state
may
legitimately interfere
with
aperson's religious beliefs
and
practices
must
therefore
be
identified. Conversely there
must
be
clear guidelines as to
just
how
*
1
2
3
BA (Hons)
LLB
(Hons) (Melb). Tutor,
Newman
College,
The
UniversitY of Melbourne.
Section 116.
First
Amendment
and
ArticleVI, c13, respectively.
There
is
debate
about
quite
how
many
rights
are
expressly
guaranteed
by
the
Constitution
and
about
the
extent
to
which
implied
rights
reside
in
the
Constitution.
140
Federal
Law
Review
Volume
26
far the state
can
go to protect the religious beliefs of some people before
it
infringes
on
the rights of others
who
wish to be free from religion. This requires adelicate balance
to
be
adopted
by
the state
and
principally by the courts,
who
are charged
with
supervising
that
balance.
HISTORICAL
PROVISIONS
BACKGROUND
TO
THE
CONSTITUTION
AL
Australia
-section 116
and
its
history
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 aqualification for
any
office
or
public
trust
under
the
Commonwealth.
4
The late nineteenth century
in
Australia
was
characterised
by
an
"anti-sectarian
endorsement
of religion".5 Aclimate of tolerance prevailed
throughout
the Australian
colonies,
based
principally
on
aconcern for the advancement of religion generally.6 For
many
years state
aid
was
provided
to the major Christian religions, only to be
discontinued later
due
to practical difficulties
and
some controversy
surrounding
its
distribution.7
It
was
in
that
context
that
the religion clause
in
the Australian Constitution
was
drafted.
During
the 1897 Convention amovement emerged to
have
some recognition of
the providence of
God
in
the Constitution.
Edmund
Barton
and
Henry
Higgins,
particularly Higgins,
were
concerned to ensure
that
areference to
God
did
not
indicate
an
implicit federal
power
to make laws
with
respect to religion, believing
that
such
a
power
was
the rightful preserve of the States,
and
proposed
asafeguard clause to
prevent
this occurring.8
At
first neither the motion for recognition
nor
the
safeguard
was
passed.
Amotion to include in the Preamble the
words
"humbly relying
on
the blessing of
Almighty God"
was
later successful. It seems
that
this inclusion
was
an
exercise
in
politics,
rather
than
religion. Patrick Glynn,
who
proposed
the motion,
said
that
this
inclusion
would
"recommend the Constitution to thousands to
whom
the rest of its
provisions
may
for ever be asealed book".9
In
response Higgins was again concerned to ensure protection from federal
interference
with
religion.
He
proposed
aclause in the following form:
4
5
6
7
8
9
Constitution, s116.
SMcLeish, "Making Sense
of
Religion
and
the
Constitution: A
Fresh
Start
for Section 116"
(1992) 18 MonULR 207
at
217.
Ibid.
Note
of
course
that
colonial Australia
would
have
been
most
concerned
with
the
advancement
of
Christian
religion.
Ibid.
J
Quick
and
R
Garran,
The
Annotated Constitution
of
the
Australian Commonwealth (1901)
at
951. See also SMcLeish, above n 5
at
219-220. The original
safeguard
clause
was
to
bind
the
States
and
the
Commonwealth,
hence
the
somewhat
anomalous
appearance
of s116,
which
binds
only
the
Commonwealth,
in
the
Constitution's
Chapter
on
the
States.
Official
Record
of
the
Debates
of
the
Australasian
Federal
Convention (rep 1986), Vol V
at
1732.
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