Melbourne University Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Melbourne University Law Review |
|
ALEX DEAGON[*] AND BENJAMIN B SAUNDERS[†]
This article examines the historical and theological background to the recognition of God in the Preamble to the Australian Constitution and the insertion of s 116. We challenge the account of that context, and the implications for the understanding of s 116, presented in Luke Beck’s recent work Religious Freedom and the Australian Constitution: Origins and Future. We argue that the campaign for constitutional recognition was driven by deep theological convictions about the role of religion in public life, not power. Further, contemporaries did not believe in a separation of religion and state and were not, for the most part, suspicious of the influence of religion. Section 116 therefore cannot be plausibly understood as intended to establish a separation between religion and the state, or as being intended to guard against the influence of religion.
CONTENTS
At face value, the Australian Constitution imposes significant limitations on the Commonwealth’s power to legislate in relation to religious matters. Section 116 provides:
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.
The High Court has typically adopted a narrow interpretation of s 116, approaching it through the lens of federalism as a limitation on Commonwealth power, rather than as a guarantee of civil liberties.[1] Different approaches have been proposed by commentators. In 1992, Stephen McLeish challenged the High Court’s approach, proposing in its place a ‘neutrality’ theory.[2] According to McLeish:
[U]nderlying s 116 there exists a general conception of state neutrality toward religion, reflected both in the avoidance of religious preferences and in respect for the autonomy of individuals in matters of religion, especially as participants in the wider community.[3]
Most recently, Luke Beck has proposed a further alternative, which he calls the ‘safeguard against religious intolerance’ theory.[4] Beck argues that s 116 is best understood as a safeguard against religious intolerance, according to which the four clauses of s 116 exist to prevent the Commonwealth from attempting to legislate in a manner that is religiously intolerant, where religious intolerance is defined as the attempt to change or suppress religious beliefs or practices, or impose penalties for holding or following them.[5]
In articulating this view, Beck has undertaken a detailed consideration of the theological, political and legal factors at play in the Federation Conventions which eventually led to the recognition of God in the Preamble to the Constitution and the adoption of s 116 — including the theological and political views held by contemporaries regarding church, religion and state, and the reasons why church groups devoted such energies to agitating for constitutional recognition and s 116.[6] This article examines the historical and theological background to the recognition of God in the Preamble and the insertion of s 116 into the Constitution, and challenges the interpretation of that context, and the implications for s 116, presented by Beck. We express no view in regard to Beck’s claim that the historical context is necessary to understand s 116 properly.[7] We are not providing a normative argument about the importance of history or claiming that history is determinative for constitutional interpretation. Instead, we critique Beck’s specific claims about the historical context and suggest implications for how convincing his proposed theory is. We argue that Beck has misread crucial aspects of that context, which significantly weakens his proposed safeguard against religious intolerance theory. In particular, Beck’s account rests on a misunderstanding of the principles of Protestant political theology. The portrayal of the recognition campaign as unprincipled does not do justice to the real motivations of the petitioners. It ignores the principled theological reasons that formed the basis for the argument for recognition, which were consistent with standard Protestant political–theological convictions.
Secondly, broadly following the Seventh Day Adventists, the arguments made by Beck consistently conflate ‘church’ and ‘religion’, which were not, and are not, the same thing. Beck expressly characterises s 116 as a ‘separation of religion and government provision’.[8] Many aspects of his argument are consistent with this characterisation, such as his argument that the recognition debate was about church leaders seeking political power.[9] In contrast, while contemporaries consistently argued for an institutional separation of church from the institutions of government, a prevailing view was that religion and the state remained closely intertwined.[10] This is an important feature of the historical context that Beck ignores in his theory of s 116.
We outline Beck’s theory in Part II. Beck’s treatment of the historical context contains a detailed analysis of the views of the Seventh Day Adventists and briefly considers the Council of Churches. One significant omission is his failure to consider mainstream Christian perspectives on constitutional recognition and s 116 in adequate detail. Given that such perspectives are more likely to have accurately reflected broader public opinion at the time of Federation, and consequently have exerted a greater influence on the framers’ thinking than the views of the much smaller Adventists (or any other religions), these perspectives are necessary for an accurate understanding of the context. Accordingly, Part III considers Protestant theological views, and the views of the Council of Churches (the broad coalition of Protestant church groups who campaigned for constitutional recognition) together with two prominent mainstream Christian denominations (Roman Catholics and Presbyterians), regarding the relationship between church, religion and the state. Part IV draws on this analysis to argue that the campaign for constitutional recognition was based on deep principles and convictions stemming from Protestant and Roman Catholic theology, undermining Beck’s contention that recognition was principally about power, politics and expediency.
Part V considers the views of the Seventh Day Adventists and their underlying theological principles. Beck’s work demonstrates that the Adventists had an important influence in lobbying for the protection of religious freedom, and his argument is clearly sympathetic to their views.[11] However, the vast majority of the Australian people at the time of Federation did not accept the principles underlying the Adventist position. Contrary to the Adventist view, and the arguments made by Edmund Barton, the majority accepted the need for an institutional separation of church and state but rejected the idea that this required a total separation of religion and government.[12] Accordingly, although the Adventist proposal for a protection of religious liberty was ultimately adopted into the Constitution as a response to the recognition campaign, their views cannot be taken as the only reason for the incorporation of s 116 into the Constitution. In Part VI, we conclude that Beck’s failure to appreciate that the campaign for constitutional recognition was principled and not pragmatic — and his failure to consider broader aspects of the historical context — significantly weaken his proposed theory of s 116.
Beck’s proposed account of s 116 is a ‘safeguard against religious intolerance theory’.[13] Beck follows the definition of intolerance set out by Melissa Williams and Jeremy Waldron,[14] arguing that religious intolerance is to be understood as the attempt to change or suppress religious beliefs or practices, or impose penalties for holding or following them.[15] Beck’s theory explains the purpose of the four clauses of s 116. In summary, establishing a religion is intolerant ‘because it frames those who are not members of the established religion as outsiders’; imposing a religious observance amounts to ‘an attempt to change the religious practices of individuals’; prohibiting the free exercise of religion ‘is explicitly the suppression of religious practices’; and imposing a religious test for public office ‘penalises individuals who do not adhere to favoured religious beliefs ... by denying them access to public office’.[16]
Beck’s proposed theory is ‘a constitutive theory of the origins of s 116 and not a doctrinal interpretation of the constitutional provision’s legal operation and effect’.[17] That is, his theory aims to answer the question: what kind of provision is s 116? It explains the purpose or foundation of the provision, and does not explain how courts ought to interpret s 116. The theory is proposed in contrast to the neutrality theory proposed by Stephen McLeish in 1992.[18] McLeish’s neutrality theory is intended to construe s 116 as ‘a guarantee of civil liberty’ with an individual rights focus, assessing the impact of a law on individuals rather than as a limitation on federal power.[19]
Beck gives detailed reasons why the neutrality theory is wrong,[20] but devotes much less space to explaining why the safeguard against religious intolerance theory is correct.[21] Beck argues that a ‘constitutive theory of the foundations of s 116 needs to have a negative direction and be conceptually modest in terms of its substantive content’.[22] Beck points out a number of similarities or characteristics that his theory shares in common with certain features of Australian constitutionalism or the drafting history of s 116. The first is that the theory does not give conceptual primacy to rights.[23] Secondly, the principal objective of the 1897–98 Federal Convention, according to Beck, was to deny power to the Commonwealth to legislate on the subject of religion; thus, the framers intended to prevent a vice, not imbue with a virtue.[24] As a result, any constitutive theory of s 116 must have a ‘negative direction’.[25] Concern that any exercise of Commonwealth legislative power might lead to religious intolerance is consistent with this focus on preventing a vice.[26] Thirdly, the theory sits comfortably with the ‘non-theorised nature of Australian constitutionalism and its lack of concern with philosophical questions about the nature of the state’.[27] A final reason for adopting the safeguard against religious intolerance theory is the theme of pragmatism which runs through the origins of s 116.[28] This pragmatism lay behind the Seventh Day Adventist campaign for s 116 and was characteristic of the Convention’s approach.
Accordingly, Beck’s reading of the history plays a crucial role in the articulation and defence of his proposed safeguard against religious intolerance theory. Almost every reason articulated by Beck has reference in some way to the historical context of s 116. Beck critiques the neutrality theory for failing to take adequate account of ‘the broader aims of the recognition movement’ and for not explaining that ‘the campaign for recognition of God in the Constitution was part of a broader and longstanding movement by colonial church leaders for public recognition of God and religion more generally’.[29] According to Beck, the historical context requires that any convincing account of s 116 have two key features, namely ‘a substantively minimalist’ content, and a negative rather than positive direction.[30]
Beck therefore has undertaken a detailed consideration of the historical context to the inclusion of s 116 in the Constitution, including relevant aspects of the theological, political and legal factors. Prior to Beck, the major work to have examined the historical context to s 116 was that of Richard Ely.[31] While Beck challenges Ely’s earlier work in some respects, his account of the historical and theological context shares many similarities. Both scholars consider that the recognition of God in the Preamble to the Constitution was inserted at the 1897 Federal Convention largely as a result of a flood of petitions from churches and religious groups,[32] and that this campaign was inconsistent with the ‘fundamental doctrine’ of Protestantism, namely the ‘individualistic character of relations of each human soul to its creator’.[33] Having denied any possible principled basis for the campaign to recognise God in the Preamble, Beck argues that the campaign was largely political and pragmatic, originating from a desire to maintain public status and recognition.[34] This campaign was ultimately successful, and became the catalyst for the insertion of s 116 into the Constitution. The Seventh Day Adventists — a minority religious group consisting of fewer than 2,000 adherents in 1897[35] — were concerned that recognition could potentially lead to the imposition of religious observances such as mandatory Sunday closing laws.[36] Accordingly, they agitated for protection of religious liberty in the Constitution through preventing the Commonwealth from imposing religious laws.[37] Championing the Adventist viewpoint, at the 1898 Federal Convention Henry Higgins moved the insertion of what became s 116 into the Constitution in order to deny the Commonwealth power to legislate on the subject of religion.[38] Beck challenges the ‘standard account’ of Higgins’ motives, namely that s 116 was intended to prevent any potential for the Constitution to be interpreted so as to confer power on the Commonwealth to legislate with respect to religion, given the acknowledgment of God in the Preamble. Instead, Beck argues, Higgins was concerned to prevent the express heads of legislative power from being interpreted so as to inferentially confer such power on the Commonwealth.[39]
Beck employs this interpretation of the historical record, together with a number of other factors, to ground his reading of the foundations of s 116.[40] Is Beck’s reading of the history correct? In the following parts we suggest that there are serious deficiencies in his account.
Beck’s work proceeds from the assumption that the historical context is necessary to understand s 116. However, his work gives prominence to the views of the Seventh Day Adventists, who were a tiny minority in the 1890s,[41] and gives limited attention to more mainstream views.[42] We argue that it is also necessary to understand the views of more mainstream Christian traditions. The population in the 1890s was overwhelmingly Christian, and ‘increasingly Protestant in religious affiliation’;[43] indeed, the Federation period represented the peak of Protestant influence in Australia.[44] Roman Catholics were also a sizeable minority.[45] The views of these groups were therefore more likely to have accurately reflected public opinion at the time and have exerted an influence on the views of the framers. This part explores the principles of Protestant political theology and the views of the Council of Churches, the Roman Catholics and the Presbyterians. The Council of Churches consisted of representatives from the largest Protestant denominations and therefore represented a broad spectrum of religious views in the late 19th century. The Presbyterians have been chosen because they were the influential mainstream denomination that initiated the Council of Churches,[46] furnished the largest number of signatures in the recognition campaign,[47] and their proposed wording for the constitutional recognition of God was almost identical to that ultimately adopted in the Preamble.[48] The Roman Catholic Church had an important impact on the success of Federation through the influence of Cardinal Patrick Moran, the Archbishop of Sydney and most prominent Roman Catholic leader of the 1890s,[49] who is credited with having proposed the idea for constitutional recognition.[50]
The 1880s and ’90s are often considered to mark the commencement of the modern Catholic tradition of social teaching, with the publication of important encyclicals by Pope Leo XIII that outlined the relationship between church, religion and the state.[51] Cardinal Moran was a faithful disciple of Pope Leo XIII: these encyclicals were known to Moran and shaped his views.[52] A number of elements of Roman Catholic social teaching are relevant to the issues discussed in relation to Australian Federation. Roman Catholics recognised no separation between ‘sacred’ and ‘secular’; rather, religion was (or ought to be) woven throughout the fabric of society, constituting the bond that united communities, renewing and energising social institutions.[53] According to Pope Leo XIII, true authority proceeded from God, who alone could ‘commit power to a man over his fellow men’;[54] further, civil laws must be consistent with the natural law.[55] A government that sought only ‘external advantages’ such as peace and economic prosperity neglects its true office; a community that ignores God is only ‘the deceitful imitation or appearance of a society’.[56] The secularists’ aim of banishing religion from the family, schools and legislation was fundamentally inconsistent with man’s religious nature.[57] Catholic teaching saw the Church playing a key role in remedying important social questions; for instance, the respective rights and duties of labour and capital, a critical question during the 1890s, were considered legitimate targets for instruction by the Church.[58] Indeed, they believed that such issues could not be resolved without the mediating influence of religion.
Although Roman Catholics believed that religion should be present through society as a whole, there was a distinction between ecclesiastical and civil powers.[59] The Church’s role was to aim at ‘the eternal end of man, his salvation’, and likewise the function of the state was the ‘temporal end of man, his common good, his political, economic, and cultural welfare’.[60] Both powers had a legitimate function and were supreme within that sphere.[61] While the Roman Catholic view distinguished between the roles of church and state, it did not recognise a separation between sacred and secular.[62] However, the Roman Catholic view was generally not favourable to freedom of religion and speech. The ruler had a duty to favour and protect religion — being, of course, the ‘true faith’ (that is, the Roman Catholic faith) — and so should not permit citizens to publish false doctrines or follow their own personal views about religion and worship.[63] Indeed, true freedom did not consist ‘in every man doing what he pleases’, for this would lead to anarchy, but rather the conformity of the civil law with the prescriptions of natural law.[64] It is in this theological context that Cardinal Moran wished the Preamble to the Constitution to state that ‘[r]eligion is the basis of our Commonwealth and of its laws’, while including statements affirming a ‘genuine liberty of conscience’ and the ‘free exercise of Divine worship ... consistent with public order and public morality’.[65]
As Beck outlines, the (New South Wales) Council of Churches was originally formed to campaign for the maintenance and imposition of Sunday observance laws.[66] It was an initiative of the Presbyterian General Assembly and represented the main Protestant denominations in the colony, including the Presbyterian, Anglican, Wesleyan, Primitive Methodist, Congregationalist and Baptist denominations.[67] Similar councils were subsequently established in the other colonies.[68] As Federation materialised, the Council of Churches focused its efforts on arguing for a recognition of God in the Preamble to the Constitution of the Commonwealth of Australia, which was being framed at the time.[69] Adopting a proposal which appears to have originated from Cardinal Moran,[70] they resolved that it was of ‘utmost importance’ that ‘there should be a recognition of God as the Supreme Ruler’, and they resolved to organise petitions to be sent to the Federal Convention to this effect.[71] These were enthusiastically supported by the Councils in other colonies.[72]
As will also be discussed in Part IV, Beck relies on the writings of Andrew Inglis Clark, Tasmanian delegate to the 1891 Federal Convention, to argue that the campaign for constitutional recognition by the Protestant churches was inconsistent with the true principles of Protestantism and therefore devoid of principle.[73] Given that Clark was not an orthodox Protestant,[74] it is unclear why Beck relies on his views as accurately expressing the principles of Protestantism. Clark considered that the ‘fundamental doctrine of Protestantism is the essentially and absolutely individualistic character of relations of each human soul to its creator’ (reflecting the Protestant emphasis on the importance of individual conscience); accordingly, no human institution had power to impose any religious doctrine or belief on a portion of the community.[75] Clark argued that, in contrast to Roman Catholicism,
Protestantism does not recognize any corporate righteousness whereby any man shall be accepted by God in consequence of inclusion in any church or other community or organization of men, and it therefore does not recognize any power or authority in any majority of men to impose any confession or declaration of religious doctrine or belief upon a minority of the same nation or community.[76]
According to this perspective, a constitutional recognition of God involves a corporate confession of faith, which imposes a particular version of faith on the rest of the population and is therefore a denial of the core principle of Protestantism.[77]
This argument significantly misrepresents and misunderstands accepted Protestant principles. Contrary to Clark’s view, the Protestant tradition has consistently held that a corporate confession of religion is necessary and desirable. Virtually every significant Protestant theologian from the Reformation and post-Reformation period affirmed a role for the ‘civil magistrate’ — the civil ruler — which went well beyond the corporate confession of religion; most believed that the civil ruler had a duty to defend true religion, punish heretics, maintain pure worship and promote the kingdom of God, and that this was not inconsistent with the principle of conscience. Leading Protestant theologians from the Reformation period who contributed to the formulation and systematisation of Protestant theology and who held to such a view include Martin Luther,[78] Philip Melanchthon,[79] Ulrich Zwingli,[80] Heinrich Bullinger,[81] John Calvin,[82] Peter Martyr Vermigli,[83] Wolfgang Musculus,[84] Theodore Beza,[85] Martin Bucer,[86] Richard Hooker[87] and Francis Turretin.[88] Such powers were also explicitly affirmed in the major Protestant confessional statements from the Reformation and post-Reformation period, including the Belgic Confession,[89] Scots Confession,[90] Second Helvetic Confession,[91] Thirty-Nine Articles[92] and the Westminster Confession of Faith (‘Westminster Confession’).[93] This principle can also be seen in operation in Protestant states throughout history. In 1555, ‘the Peace of Augsburg legally ratified the confessional divisions of the empire’ by establishing the principle that the religion of a particular state was to be determined by the religion of the ruler of that state.[94] Roman Catholic, Lutheran and Calvinist territories all gave effect to this principle.[95]
Later Protestant thinkers have typically affirmed a less extensive role for the civil magistrate in relation to religion.[96] Nevertheless, many continued to believe that religion ought to play an important public role in society and the state, and that the institutions of government should explicitly acknowledge the lordship of Christ and enforce a mandatory Christian sabbath, all the while recognising a distinction between church and state. Such theologians include Abraham Kuyper,[97] Charles Hodge,[98] AA Hodge,[99] Robert Dabney,[100] James Henly Thornwell[101] and Charles H Spurgeon.[102] The fact that leading Protestant theologians from the Reformation period as well as those writing in later centuries held to such a position significantly weakens Clark’s argument that a corporate confession of religion is inconsistent with the principles of Protestantism.
Underlying Clark’s view is a failure to appreciate the ‘two kingdoms’ principle, and a failure to understand the nature of the power that Protestant theologians have ascribed to the civil magistrate. The two kingdoms doctrine was famously outlined by Martin Luther and has had a profound impact on Protestant political theology.[103] In his tract The Freedom of a Christian, Luther wrote these profound and paradoxical words:
A Christian is a perfectly free lord of all, subject to none.
A Christian is a perfectly dutiful servant of all, subject to all.[104]
The first of these statements expresses the truth that salvation is only possible by faith alone, which comes through the Word of God, unmediated by any human authority or institution. By faith, the Christian is completely free, and has confidence of acceptance with God. As such, ‘no external thing has any influence in producing Christian righteousness or freedom’.[105] Having experienced this freedom, Christians willingly subject themselves, serving their neighbours and acting for the common good rather than in their own interests.[106] They become ‘dutiful servant[s] of all’. Luther’s two statements correspond to the twofold nature of man and the twofold government instituted to rule those natures.[107] For Luther, the spiritual realm pertains to the inner person — the conscience — which is ruled exclusively by the Holy Spirit, without law.[108] This spiritual government is a voluntary rule which cannot be imposed by force.[109] By contrast, the ‘outer realm’ pertains to temporal matters, which for Luther had a broad compass, referring to everything outside of a Christian’s relationship with God. In contrast to the government of the word, the temporal government of the sword is a coercive power that exists to maintain order and peace.[110]
The two kingdoms principle explains why Protestant theologians did not consider that the powers ascribed to the civil magistrate in relation to religion violated the principle of conscience. Luther’s emphasis on the inner realm freed the individual conscience from the intermediation of the Church, thereby implying ‘the dispensability of the Church considered only as a visible and hierarchical structure’.[111] But a less often understood implication of Luther’s doctrine is that it leads to a surprisingly robust acceptance of ‘intrusions’ in the external realm. The two kingdoms principle radically relativises all attachments and loyalties given that no Christian ought to invest any earthly authority — whether church or state — with ultimate significance.[112] If no external thing can have any influence in producing righteousness, it is equally true that no external thing can hinder such righteousness. Reflecting the distinction between the inner realm and the outer realm, the magistrate’s powers could only ever remain ‘outward, coercive, and temporal’, and could not ‘enter into the conscience’.[113] Any compulsion levelled at ‘religious minorities’ — such as blasphemers or heretics — was directed ‘purely at the body physical and did not infringe upon their “freedom of conscience’’’, because external compulsion could not interfere with the freedom that a Christian possesses.[114] Accordingly, many in the Protestant tradition have considered that merely being required by law to do something did not amount to an infringement of conscience. As John Calvin put it, ‘outward subjection does not prevent us from having within us a conscience free in the sight of God’.[115]
Clark also conflates the distinction between membership in the state and membership in the kingdom of God. As already noted, Clark considered that imposing a confession of religious belief on a religious minority was tantamount to recognising a ‘corporate righteousness whereby any man shall be accepted by God in consequence of inclusion in any church or other community or organization of men’.[116] Protestants certainly held that the attainment of salvation was only possible by faith, and that true faith is not susceptible of being coerced.[117] And yet many Protestant states throughout history have made national confessions of faith, in the desire to establish the fundamental character of the state along Christian lines.[118] Rather than these being inconsistent, Protestants recognised that the national enforcement of a confession of religious belief is not the same thing as being ‘accepted by God’. Such confessions reflected a particular view of the nature of civil society, presupposing a unified Christian society corporately confessing the same faith.[119] ‘Spiritual crimes’ such as blasphemy and heresy should be punished because they constituted an attack both on the Church and the foundation of the state.[120]
Accordingly, Clark wrongly characterises a national confession of faith as being inconsistent with the principles of Protestantism. Historically, many Protestants have held that such a confession is consistent with Protestant political principles.[121] Clark erred by failing to appreciate the distinction between the two kingdoms that was so central to Protestant thought, and by conflating ‘acceptance with God’ with ‘membership in the civil realm’.
In Australia in the 19th century, it was widely believed that Christian teachings ought to permeate society and be recognised in public life; indeed, Christianity was considered to furnish the foundations of civilisation and morality.[122] Notwithstanding the cessation of state aid to the churches, Australia was widely considered to be a Christian nation: the ‘idea of a “Christian Commonwealth” as both ideal and possibility runs through Australia’s religious history’.[123] Protestants were ‘committed to nation-building on Christian foundations’, understood in terms of common cultural ties as well as guarding and preserving moral order.[124] At the Convention Debates, Sir John Downer asserted that ‘the Commonwealth will be from its first stage a Christian Commonwealth’.[125] The debates over abolition of the Church Acts[126] and the role of religion in the education system forged a distinctive Australian view of religion and the state by the Federation period, which was non-establishment but also non-secular, namely ‘that the state should not be godless, and yet that it should not privilege one Christian church over others’.[127] Indeed, Sunday trading laws were premised on Australia being a Christian country: the view that the ‘right observance of the Christian Sabbath is the bulwark of religion in the land’.[128]
In some churches towards the end of the 19th century, there was a decline in belief in traditional doctrine, but there was at the same time an increased emphasis on the moral outworking of Christianity.[129] Many began to reinterpret Christianity in moral and social terms, shifting away from its supernatural elements,[130] and giving greater emphasis to ‘active concern for the common good’ and transformed engagement throughout society.[131] As such, the Australian churches began to assume ‘a more vivid sense of their responsibility’ for dealing with the evils around them and ameliorating human suffering.[132] In 1895, the Reverend WJL Closs exhorted the Congregational Union of New South Wales to ‘[c]arry our Christianity into the State’ and ‘insist upon the controlling power of God being recognised’.[133] Noteworthy manifestations of this desire included the formation of many benevolent institutions, involvement in social reform, the desire for social improvement, and the removal of ‘public maladies’ such as drunkenness.[134] Indeed, the list of religiously inspired campaigns for moral and social reform is a long one. In New South Wales, an early view that the churches should avoid ‘strictly political questions’ was relaxed in favour of a broader conception of Christian social duty, which saw the state as an agent in social amelioration.[135] According to the Protestant view, the ‘root of good government’ was ‘righteousness’.[136]
Christian influence on social and political questions was welcomed by many contemporaries. In 1890, The Sydney Morning Herald exhorted the churches to exercise ‘a vital influence’ on the pressing social questions of the day and to have ‘a practical and direct relation to contemporary conditions’.[137] One politician, James Blanksby MLC, argued that ‘[i]t was the work of the Church to say what reforms are necessary, and the business of the legislator to carry them out’.[138] Contemporaries thus saw the Church and state working in partnership to improve society. Of course, this was not universal. Edmund Barton, for instance, considered:
The whole mode of government, the whole province of the State, is secular. The whole business that is transacted by any community — however deeply Christian, unless it has an established church, unless religion is interwoven expressly and professedly with all its actions — is secular business as distinguished from religious business.[139]
Statements such as these were, however, the exception rather than the norm, given that many in the late nineteenth century did believe that ‘religion is interwoven expressly and professedly’ throughout society.
The Presbyterian tradition exemplifies the broader Protestant tradition of political theology, but with some distinctive views. Presbyterians emphasise the independent spiritual jurisdiction of the Church, distinct from the power of the ‘civil magistrate’ (that is, the secular ruler).[140] The Westminster Confession, the doctrinal standard of the Presbyterian Church, provides that ‘[t]he Lord Jesus, as King and Head of His Church, hath therein appointed a government, in the hand of Church officers, distinct from the civil magistrate.’[141] This, however, did not prevent the civil magistrate from performing important roles in relation to religion. Indeed, the Westminster Confession, while denying to the civil magistrate ‘the administration of the Word and sacraments’,[142] and ‘the power of the keys of the kingdom of heaven’,[143] namely discipline and excommunication, provides that the magistrate
hath authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and observed.[144]
While in later centuries Presbyterians accepted a more limited role for the civil government,[145] they continued to believe that religion should play an important role throughout public life and society more generally.[146]
Accordingly, mainstream Christian denominations in the Federation era strongly affirmed the important role of religion in politics for the good and blessing of the nation, while at the same time maintaining a structural distinction between the institutions of the Church and the state in the spirit of the two kingdoms doctrine. Importantly for present purposes, these views had a basis in theological principle rather than mere pragmatism, and they were consistent with mainstream Protestant views about the proper relationship between religion and the state. These considerations are relevant in challenging Beck’s characterisation of the recognition campaign.[147]
The Council of Churches agitated for the new Constitution to contain ‘a formal and public recognition by the state of the authority of God’.[148] Beck, drawing on the earlier work of Richard Ely, presents the campaign for recognition as principally about power, politics and expediency.[149] Some contemporaries made similar claims. The Adventists asserted that the Council of Churches had adopted a Roman Catholic approach to the question of constitutional recognition. The Roman Catholics signed the same petitions as the Council of Churches and agreed on the wording of the ‘religious clause’.[150] Hence, according to the Adventists, the Council had ‘yielded the very principles which gave rise to Protestantism. They have abandoned Protestantism, and taken their stand on papal ground.’[151] Part III also considered Andrew Inglis Clark’s view that the desire for constitutional recognition was inconsistent with the true principles of Protestantism.
Beck considers that the campaign for constitutional recognition was a form of ‘civic Protestantism’, defined somewhat imprecisely as the idea that ‘the marriage of law and morality was made in heaven’, and which found expression in seeking the outworking of Christian principles throughout society and public life.[152] As an example of ‘civic Protestantism’, Beck argues that the campaign for recognition was inconsistent with the true principles of Protestantism, based on Clark’s characterisation of Protestantism and the recognition campaign.[153] He cynically concludes: ‘What Clark’s analysis confirms is that the constitutional recognition of God campaign was not the result of any deep theological convictions or deep intellectual thought. The campaign was about politics, status and power’.[154]
This argument is deeply flawed. Even if Clark was correct that the campaigners’ views were inconsistent with the principles of Protestantism, this in and of itself is not sufficient to demonstrate that they were unprincipled: it demonstrates only that those principles were theologically inconsistent. In addition, if churchmen were primarily concerned about public status, merely inserting the words ‘humbly relying on the blessing of Almighty God’[155] would seem a remarkably ineffective method of achieving that status. Beck himself demonstrates that the Preamble had no legal consequence.[156]
Perhaps more fundamentally, the examination in Part III demonstrates that many Protestant political theologians have advocated for a positive relationship between religion and state throughout history. Clark and Beck make no reference to these historic Protestant theological principles. While Protestantism certainly emphasised the importance of conscience, its approach to matters of church and state was much more nuanced than Clark’s and Beck’s arguments suggest.[157] A more accurate understanding of the political and theological views held by mainstream Christian traditions at the time of Federation illuminates the reasons why such leaders sought recognition of God in the Constitution. Leaders sought constitutional recognition not primarily for political reasons or in order to seek greater prominence for themselves, but as a result of deeply held principles regarding the connection between God and nation. Whether or not ‘civic Protestantism’ is an apt label for the constitutional recognition campaign,[158] there is no theological inconsistency in that campaign. In light of the analysis in Part III, Protestant arguments for recognition are a straightforward application of Protestant theological principles. Mainstream Christian views of the 1890s considered that religion underlay all institutions, and indeed society as a whole — the separation of church and state did not mean a removal of religion from public life. This desire can also be seen within the context of the link between religion and nationalism that characterised the Federation movement, whereby Federation was understood as ‘a sacred cause’, as John Hirst has ably documented.[159] Part of the driving force for Federation was a spirit of nationalism ubiquitous throughout Europe in the 19th century, and this nationalism was often deeply religious.[160]
Prominent Protestants of the Federation era viewed constitutional recognition as an acknowledgement of God and religious tradition to receive his blessing on the federating nation.[161] One Anglican church leader in Sydney, Archdeacon Langley, argued that the foundation and prosperity of the nation was dependent on, or at least related to, ‘the recognition of God and true religion’.[162] Many religious persons believed that the acknowledgement of God would result in blessing.[163] In 1897, Andrew Harper, Professor of Hebrew and Old Testament at the Presbyterian Theological Hall, Ormond College, gave an address exhorting the churches to lobby for an acknowledgement of God in the Constitution.[164] Although more a call to arms than a detailed articulation of the rationale underlying constitutional recognition, the address included some important statements of principle. Harper argued that constitutional recognition would be to give due acknowledgment to God as the ‘supernatural supreme factor in human affairs’, which was true in any case, regardless of whether any declaration was made or not.[165] Recognition would be to establish the new Australian nation upon a proper basis, and would constitute an important declaration of the intended character of the nation.[166] Indeed, there could be no ‘neutrality’: the only alternative would be to found the Constitution upon the negation of God, which would inevitably lead to Australia’s progressive degeneration.[167] Harper contended that the ‘Gospel of Christ necessarily has large social and political implications’, leading to the transformation of society and social change; to deny the existence of God would therefore be to remove an important spur to social and moral transformation.[168] Congregationalist James Jefferis believed that Christians should take ‘the deepest interest in the work of government’[169] and considered Federation to be ‘a step towards the creation of the Kingdom of God on earth, to a new heaven and a new earth, to a life of Christian humanity’.[170] Henry Montgomery, Bishop of Tasmania, saw Federation as a profoundly religious matter, expressing the brotherhood of man and the unity of the Anglo-Saxon race.[171]
Leaders such as these had strong convictions on the need for recognition to acknowledge God’s sovereignty and obtain his blessing, and the Council of Churches in general had deeply entrenched convictions about the importance of the nation’s Christian nature and the need for days of national worship, prayer and fasting, and for maintaining Sunday observance.[172] Indeed, the history of Australian society in the late 19th century offers many examples of how religious ideals, and particularly cultural Protestantism, influenced public culture, social policy and civic rituals. The nation itself took on sacred forms, and the link between religion and public and private morality was part of the common cultural sense of a time when it was almost universally accepted that Australia was a Christian nation.[173] Therefore if, as conceded by Beck, arguments against recognition (in particular, those made by the Adventists) could be based on firm theological convictions,[174] then arguments for recognition could equally have resulted from theological principle.
Furthermore, it is problematic to draw a sharp distinction between political motivations and theological convictions. The churches had deep theological convictions that they should be involved with and influence the Constitution and the nation’s policy directions in accordance with Protestant views; this necessarily committed them to the political engagement required to achieve those ends.[175] The Adventists were deeply committed to precisely the opposite theological conviction, namely that the Church should have no involvement with the state — which, ironically, secured their intense political engagement with the Federation process.[176] In their recent extensive historical study, Chavura, Gascoigne and Tregenza warn that
it is probably wise to be wary of any analysis that reads the federal movement in strictly utilitarian terms, seeing it as merely a series of practical problems to be solved. This might have some appeal for later, more overtly ‘secular’ times such as our own, but it all too conveniently ignores the deep and widely held nineteenth-century conviction that the creation of the nation was nothing short of a work of providence. The churches and religious communities might have played an important role in the federal movement, but it was the nation itself that was increasingly assuming sacred qualities.[177]
Beck considers that the campaign for recognition of God in the Constitution is an important feature of the historical context to Federation for which any adequate theory of the foundation of s 116 must account.[178] However, Beck’s characterisation of the recognition campaign as principally political and expedient, rather than as the result of theological conviction, is reductionist, and fails to understand the theological principles held by those arguing for recognition. It is misguided to dismiss the possibility that theological convictions were a major contributing factor in the constitutional recognition campaign, and to do so does not appreciate the sacral–secular nature of thought about the nation that prevailed throughout the 19th century. A more likely explanation is that there were a variety of perspectives undergirding both sides of the recognition campaign, and many advocates for recognition believed deeply in the sacred quality of the nation and the need for acknowledgement of God in its supreme legal text.
This part discusses conceptions of the separation of religion and state and its implications for the position of religion under the Constitution. Parts III and IV considered the principles that animated the campaign for constitutional recognition by mainstream Christian groups. This campaign was strongly opposed by the Seventh Day Adventists, who argued that recognition would lead to the denial of religious liberty by conferring power on the Commonwealth to mandate religious observances such as compulsory Sunday closing laws.[179] The Adventists strongly believed that religion and the state should be firmly separated.[180] In this part, we explore the reasoning underlying the Seventh Day Adventist position and argue that their views cannot be taken as accurately stating the proper relationship between religion and the Constitution. While contemporaries considered that an institutional separation of church and state was desirable, the vast majority did not hold that there should be a removal of religion from the state. In the 1890s, religion was considered to be the essential foundation for morality, and people were comfortable with religion influencing many aspects of public life and politics.[181] Thus, it is unlikely that s 116 can be understood as requiring the separation of religion and the state, or the removal of religion from public life, as the Seventh Day Adventists intended it to.
The Adventists claimed that the Council of Churches was using recognition of God in the Preamble as a vehicle for uniting church and state to enforce Sunday observance laws.[182] The Adventists were of the view that nominal recognition of God in the Preamble would enable the passing of religious laws on the basis that Australia was a ‘Christian nation’.[183] A concise explanation of their argument is as follows:
To incorporate in the Constitution of a civil government a recognition of God, or a declaration of faith, is to insert a religious clause.
To insert a religious clause in the Constitution is to give the government a religious basis.
A religious basis confers power for religious legislation.
Power to legislate on matters of religion implies power to execute religious laws.
Power to execute religious laws means compulsion in matters of religion.[184]
It is evident that their concern was with the enforcement of religious laws by the government,[185] especially the enforcement of Sunday observance.[186] The Adventists also pointed to Council petitions that argued for constitutional recognition that made provision ‘for such acts of common worship as should be deemed suitable for a legislative body’ and ‘[t]hat the Governor-General be empowered to appoint days of national thanksgiving and humiliation’.[187]
Underlying these arguments was a distinctive conception of the relationship between church, religion and state. It is important to unpack the elements of this theological and political framework. The general principle was that the state is responsible for temporal matters and the Church for spiritual matters: ‘they are ordained for entirely separate lines of work; that each has its particular sphere; and that the realm of one is in no sense the realm of the other’.[188] In the Gospel of St Matthew 22:21, Christ famously said: ‘Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s.’ The Adventists claimed that, by these words, ‘Christ forever separated religion from the things of Caesar, or civil government. They are not to be confounded nor united.’[189] They said:
It is therefore evident that religion and civil government occupy two separate and distinct realms; that civil government exists and is necessary because of sin; that in proportion as men are genuinely converted, civil governments have less to do; and that finally, in the redeemed state, there will be no civil governments at all.[190]
It follows from this that the Church is a completely separate sphere from politics, as consisting of people that are literally ‘called out’ from the world. The role of the Church is to preach the gospel and attend to spiritual matters. Its methods are faith and persuasion, not the sword of the state or the ballot box. True religion must be voluntary rather than compelled.[191] A healthy citizenry will result from the preaching of the gospel and inward heart change rather than ‘through the mediumship of politics’.[192]
Therefore, according to the Seventh Day Adventists, society will benefit the most if the Church keeps to its divine calling, which is to influence the heart of man from within, and avoid entanglement with civil government, which regulates the behaviour of man from without.[193] People may vote in accordance with their convictions, but the Church should not enter the field of politics as that is not its arena.[194] The Church is not a political organisation, and if the Church enters politics, it must by necessity either attach itself to a political party or become a new political party.[195] It will then demand the enforcement of its religious beliefs and practices through human law, and this means ‘trouble and persecution’.[196] This strict separation of religion and politics extended to clergy holding political office. The Seventh Day Adventists expressed reservations about the potential election of Cardinal Moran due to the ‘suspicion [that] religion and religious controversy would ... be introduced into politics’, rather than his efforts being confined to ‘civil matters’.[197]
Constitutional recognition was a denial of the true nature of religion: ‘true recognition of God’ is ‘personal faith in Him and obedience to His just requirements’, and ‘to recognise the sacred rights ... conferred upon men’, particularly in relation to freedom of religion and conscience and freedom from religion imposed by the state.[198] The Adventists were concerned that the Council of Churches were ‘turn[ing] the churches into political machines’;[199] the Council were acting like they believed that the ‘eternal salvation’ of people was dependent on recognition, and the purpose of the state was to ‘declare a faith, and convert men to it’.[200] Fundamentally, the Adventist objection to constitutional recognition was because of their belief that any legal connection between religion and the state is contrary to Scripture and injurious to both religion and state.[201] In particular:
A national constitution is the basis of national laws. Laws are made in pursuance of constitutions. The subjects treated of in a constitution, if proper there, are proper subjects for subsequent legislation. If, therefore, the framers of the Federal Constitution have a right to make a declaration of religious faith in that, then the Federal legislators will have a right to make laws defining, supporting, and enforcing this faith.[202]
The Seventh Day Adventist arguments are certainly not without resonances in more modern mainstream Christian views. Rendering ‘unto Caesar [what is] Caesar’s, and unto God [what is] God’s’[203] has been recognised to establish ‘a clear distinction between spiritual and civil government’,[204] thereby requiring some degree of separation between church and state, religion and government.[205] Christ’s kingdom is ‘not of this world’ and is not instituted through arms or political power.[206] Genuine religion must be voluntary rather than imposed through legal violence,[207] and so the Adventists were correct to say that religion should not be enforced by law.[208] However, most contemporaries did not share the Adventist perspective on separation. This is apparent from the theological views of mainstream Christian denominations discussed in Part III. Those traditions considered that religion should be woven throughout society, and these views informed their campaign for constitutional recognition of God. An example is the motion submitted by Alexander Gosman, the Victorian Congregationalist leader, to the Bathurst’s People Convention in November 1896, which he argued should be incorporated as part of the Convention’s opening formalities.[209] This motion acknowledged the supreme rule and authority of God and sought his blessing.[210] Gosman justified this by distinguishing between an established church on one hand, and atheistic secular separationism on the other. He argued that the state should interact with religion in a mutually beneficial way, and that the churches should be involved in politics.[211] Thus, Gosman, while acknowledging that there should not be an established church in the sense of no separation between church and state, also contended that this did not mean there must be a separation between religion and the state. A state that is non-religious is actually an irreligious or atheistic state.[212]
A commitment to the separation of church and state did not entail a complete separation between religion and the government. ‘Church’ and ‘religion’ are not synonyms, and politics is broader than the ‘state’. It is entirely possible to have a relationship between religion and government without conflating church and state.[213] There is no principled reason why religion cannot contribute to politics as part of the normal democratic participatory process.[214] Indeed, there is no truly ‘secular’ or ‘liberal’ state that enshrines a complete separation between religion and politics.[215] Religious people and groups form part of the democratic state and therefore it is incongruent that religion should be separate from politics in any strict sense. It is consistent with at least some strands of Protestant theology and political theory that a liberal, democratic state can countenance religious contributions to public policy and religious arguments for political views.[216]
This has important implications for s 116. First, s 116 cannot be seen as a provision establishing a secular separation of religion and state, or separation of religion and government. Secondly, s 116 cannot plausibly be understood as having originated from the perspective of hostility to religion, with an intention to guard against its influence. Both of these mistaken views are evident to a greater or lesser extent in Beck’s narrative.
First, Beck seems to consider that s 116 establishes a separation of religion and government. He approvingly references La Nauze’s blunt claim that, in the campaign for recognition, ‘the Convention was being blackmailed into making a gesture that was none of its proper business’.[217] He observes that
[i]t was the New South Wales Council of Churches that was ultimately responsible for the successful campaign to have God recognised in the Constitution and which in turn prompted the successful campaign for a provision separating religion and government.[218]
He also describes s 116 as ‘the separation of religion and government provision of the Australian Constitution’[219] and considers that s 116 ‘appears to be a secular separation of religion and state constitutional provision’.[220] This is a questionable characterisation of s 116. Section 116 does not separate religion and government in any absolute, direct sense — and does not separate religion and government at the state level in any way. As Beck himself acknowledges, s 116 is ‘rather more limited and focused in its terms than a simple denial of power in respect of religion’,[221] preventing the Commonwealth (and not the states) from passing laws that establish a religion, impose religious observance, prohibit the free exercise of religion, or make a religious test a qualification for public office. Section 116 does not, for example, prevent religion contributing to politics and public policy, or prevent the election of religious ministers as politicians, and it does not contain an absolute prohibition on the Commonwealth passing laws that relate to religion.[222] The argument that constitutional recognition of God was not the proper business of the Convention is only plausible on the basis of anachronistic assumptions about the respective roles of religion and the state, assumptions which, as we have suggested above, most people in the 1890s did not share. At Federation, there was no widely held view that religion and the state should be hermetically separate spheres.[223]
Secondly, Beck’s narrative is suspicious of religion and deeply cynical of the motives of religious leaders. As noted, Beck considers that the religious leaders who argued for constitutional recognition were devoid of principle, acting inconsistently with the tenets of their religion and purely for pragmatic political reasons.[224] Beck expresses concern that the Council of Churches was craving the ‘formal and public recognition ... of God’ and seeking public status and power.[225] This, in Beck’s view, stemmed from a concern about the Council of Churches’ declining influence over public morality and a ‘widening gap between a secular society and socially conservative religious establishments’.[226] Above, we challenged the claim that the Council of Churches pursued constitutional recognition purely for political reasons.[227] Further, Beck’s suspicion of religion and religious leaders was not a suspicion shared by many contemporaries, who, by and large, believed that religion should exercise a benevolent influence throughout society.[228]
Chavura, Gascoigne and Tregenza note that arguments for (and against) the recognition of God ‘came about through religious engagement with the federation movement’ and were infused with various theological frameworks.[229] The popular sentiment that undergirded the campaign for constitutional recognition belies Beck’s characterisation of the motives of religious leaders. Chavura, Gascoigne and Tregenza explain that the push for recognition of God was ‘largely grassroots’ on the part of the churches, but it was ‘taken seriously by most delegates as a sincere national expression of religiosity’.[230] As Glynn argued during the Convention Debates:
[W]e cannot ignore the evidence afforded by the petitions of a widespread desire that the spirit of the [recognition] proposal should be accepted; we cannot pass over in silence the almost unanimous request of the members of so many creeds, of one aim and hope, that the supremacy of God should be recognised, and His blessing invoked, in the opening lines of our Constitution.[231]
Hence, there was a ‘strong popular sentiment’ in favour of the recognition of God, and as a result it was supported by a large number of the Convention delegates.[232] Zimmermann observes that the insertion of an acknowledgement of God occurred in response to overwhelming public support, and it actually received ‘the strongest popular support of any part of the nation’s foundational document’.[233] Therefore, the Preamble ‘exemplifies the nation’s religious, and specifically Christian, heritage’, and the Judeo-Christian values strongly embedded in the community.[234] This is an important feature of the historical context for which Beck does not adequately account.[235]
Given the history of the Constitution, particularly the prevailing views regarding religion and the state when it was drafted, we conclude that s 116 cannot be plausibly understood as intended to establish a separation between religion and government, and did not arise from suspicion of religion or religious leaders.
This article has challenged Luke Beck’s account of the theological and historical context relating to the recognition of God in the Preamble of the Constitution and the subsequent inclusion of s 116. Beck relies on a narrow range of sources, failing to analyse the views of mainstream Christian traditions on their own terms, and omitting to consult the leading works of history that have analysed religion and religious views in Australia in the late 19th century. As a result, he misunderstands mainstream Protestant views as well as widely held views in society regarding religion and the state. We have shown that the campaign for constitutional recognition was driven by deep theological convictions about the role of religion in public life, reflecting a sincere expression of national religious sentiment, and was not primarily pragmatic and driven by considerations of power. Contemporaries did not believe in a separation of religion and government and were not, for the most part, suspicious of the influence of religion.
This presents a significant challenge to Beck’s proposed ‘safeguard against religious intolerance’ theory. As noted earlier, Beck presents two principal reasons for accepting this theory, namely that any theory of s 116 must have a negative direction and must be conceptually modest. These features, according to Beck, are demanded by the history leading to the incorporation of s 116 in the Constitution, including the pragmatic and unprincipled nature of the campaign for recognition of God in the Constitution, and the pragmatic way the Federal Convention went about the task of drafting s 116. That is, Beck’s reading of the history undergirds his articulation and defence of his theory. Given that there are significant weaknesses in Beck’s account of the history, the main support for that theory is correspondingly weakened.
Section 116 cannot be plausibly understood as intended to establish a strict separation between religion and the state, or as being intended to guard against the influence of religion. Recognising this opens the possibility for further exploration regarding the purpose, design and proper interpretation of s 116, which can occupy future research in the area. If history is relied on to ground a particular reading of s 116, that reading should be accompanied by a more nuanced and careful explanation of the historical context.
[*] Senior Lecturer, Faculty of Law, Queensland University of Technology.
[†] Senior Lecturer, Deakin Law School, Deakin University.
Many thanks to Steven Chavura, Simon Kennedy, Brad Littlejohn and the anonymous reviewers for helpful comments on an earlier draft of this article. We also particularly wish to thank Luke Beck for providing valuable comments on an earlier draft. Finally, we thank the Editors for their diligence and thorough preparation of this article for publication.
[1] A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 605, 609 (Stephen J), 615–16 (Mason J), 652–3 (Wilson J) (‘DOGS Case’). This narrow approach has been well documented: see, eg, Reid Mortensen, ‘The Unfinished Experiment: A Report on Religious Freedom in Australia’ (2007) 21(1) Emory International Law Review 167, 167–77; Carolyn Evans, ‘Religion as Politics Not Law: The Religion Clauses in the Australian Constitution’ (2008) 36(3) Religion, State and Society 283; Luke Beck, ‘The Case against Improper Purpose as the Touchstone for Invalidity under Section 116 of the Australian Constitution’ (2016) 44(3) Federal Law Review 505, 505–14; Alex Deagon, ‘Defining the Interface of Freedom and Discrimination: Exercising Religion, Democracy and Same-Sex Marriage’ (2017) 20 International Trade and Business Law Review 239, 239–51 (‘Defining the Interface of Freedom and Discrimination’); Paul Babie, ‘National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update’ (2017) 45(3) Federal Law Review 351, 351–8, 366–8; Alex Deagon, ‘Liberal Assumptions in Section 116 Cases and Implications for Religious Freedom’ (2018) 46(1) Federal Law Review 113; Carolyn Evans, ‘Religion’ in Cheryl Saunders and Adrienne Stone (eds), The Oxford Handbook of the Australian Constitution (Oxford University Press, 2018) 1033.
[2] Stephen McLeish, ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’ [1992] MonashULawRw 10; (1992) 18(2) Monash University Law Review 207.
[3] Ibid 223. A subsequent article by Puls largely accepts this account in the context of a discussion about the definition of religion: Joshua Puls, ‘The Wall of Separation: Section 116, the First Amendment and Constitutional Religious Guarantees’ [1998] FedLawRw 6; (1998) 26(1) Federal Law Review 139, 150–1.
[4] Luke Beck, Religious Freedom and the Australian Constitution: Origins and Future (Routledge, 2018) 118–29 (‘Religious Freedom and the Australian Constitution’).
[5] Ibid 118–19.
[6] Beck, Religious Freedom and the Australian Constitution (n 4). See also Luke Beck, ‘The Theological Underpinnings of Australia’s Constitutional Separation of Church and State Provision’ (2018) 64(1) Australian Journal of Politics and History 1 (‘Theological Underpinnings’).
[7] Beck, Religious Freedom and the Australian Constitution (n 4) 126–7.
[8] Ibid 4.
[9] Ibid 16–17.
[10] Andrew Harper, Australia without God: An Appeal to the Churches of Australia to Secure an Acknowledgement of God in the Australian Constitution (ML Hutchinson, 1897) 12–13.
[11] See Beck, ‘Theological Underpinnings’ (n 6) 3–10.
[12] Cf ibid 13–15.
[13] Beck, Religious Freedom and the Australian Constitution (n 4) ch 9.
[14] Jeremy Waldron and Melissa S Williams, ‘Introduction’ in Melissa S Williams and Jeremy Waldron (eds), Toleration and Its Limits (New York University Press, 2008) 1, 4.
[15] Beck, Religious Freedom and the Australian Constitution (n 4) 119.
[16] Ibid.
[17] Ibid.
[19] Ibid 210.
[20] Beck, Religious Freedom and the Australian Constitution (n 4) 123–8.
[21] Ibid 128–9. See also at 123–4, 127.
[22] Ibid 128.
[23] Ibid 125.
[24] Ibid 122–3.
[25] Ibid 123–4.
[26] Ibid 128. Beck does not state whose concern is relevant.
[27] Ibid.
[28] Ibid 128–9.
[29] Ibid 127.
[30] Ibid 123–4.
[31] Richard Ely, Unto God and Caesar: Religious Issues in the Emerging Commonwealth, 1891–1906 (Melbourne University Press, 1976) (‘Unto God and Caesar’).
[32] See generally Beck, Religious Freedom and the Australian Constitution (n 4) ch 2; ibid ch 1.
[33] Beck, Religious Freedom and the Australian Constitution (n 4) 15, citing Richard Ely, ‘Andrew Inglis Clark on the Preamble of the Australian Constitution’ (2001) 75(1) Australian Law Journal 36.
[34] Beck, Religious Freedom and the Australian Constitution (n 4) 17.
[35] Beck, ‘Theological Underpinnings’ (n 6) 3.
[36] Ely, Unto God and Caesar (n 31) 27. See ‘Petitions! Petitions! Petitions!’ (1897) 12(13) Bible Echo 104.
[37] Beck, Religious Freedom and the Australian Constitution (n 4) 20–31; Beck, ‘Theological Underpinnings’ (n 6).
[38] Beck, Religious Freedom and the Australian Constitution (n 4) 78, 88–97.
[39] Ibid ch 6.
[40] Ibid 128–9. Beck critiques the neutrality theory at 123–7.
[41] By 1897, the Seventh Day Adventists had fewer than 2,000 adherents out of a total population of about 3.6 million: ibid 20, citing Australian Bureau of Statistics, Australian Historical Population Statistics 2014 (Catalogue No 3105.0.65.001, 18 September 2014).
[42] See Beck, ‘Theological Underpinnings’ (n 6); Beck, Religious Freedom and the Australian Constitution (n 4) chs 2–3.
[43] JD Bollen, Protestantism and Social Reform in New South Wales 1890–1910 (Melbourne University Press, 1972) 4; Beck, ‘Theological Underpinnings’ (n 6) 3.
[44] Stuart Piggin, Spirit of a Nation: The Story of Australia’s Christian Heritage (Strand Publishing, 2004) 49.
[45] Bollen (n 43) 183; Beck, ‘Theological Underpinnings’ (n 6) 4.
[46] Beck, Religious Freedom and the Australian Constitution (n 4) 12.
[47] AE Cahill, ‘Catholics and Australian Federation’ (2001) 22 Journal of the Australian Catholic Historical Society 9, 17.
[48] Beck, Religious Freedom and the Australian Constitution (n 4) 36.
[49] See generally AE Cahill, ‘Cardinal Moran and Australian Federation’ (2001) 78(1) Australasian Catholic Record 3.
[50] Patrick Francis Moran, ‘The Cardinal and Federation: Address to the Electors’, The Freeman’s Journal (Sydney, 20 February 1897) 17.
[51] See, eg, Pope Leo XIII, ‘Immortale Dei: Encyclical of Pope Leo XIII on the Christian Constitution of States’ in Claudia Carlen Ihm, The Papal Encyclicals: 1878–1903 (Pierian Press, 1990) 107 (‘Immortale Dei’); Pope Leo XIII, ‘Sapientiae Christianae: Encyclical of Pope Leo XIII on Christians as Citizens’ in Claudia Carlen Ihm, The Papal Encyclicals: 1878–1903 (Pierian Press, 1990) 211 (‘Sapientiae Christianae’).
[52] Cardinal Archbishop of Sydney, Lecture on the Rights and Duties of Labour (Finn Brothers & Co, 1891) 3–4; Cardinal Moran, The Catholic Church in the Nineteenth Century: Inaugural Discourse (F Cunninghame & Co, 1900) 7–9.
[53] See Pope Leo XIII, ‘Immortale Dei’ (n 51) 108 [3].
[54] Pope Leo XIII, ‘Sapientiae Christianae’ (n 51) 213 [8].
[55] Ibid 213 [10].
[56] Ibid 211 [2].
[57] Cardinal Archbishop of Sydney, The Reunion of Christendom (F Cunninghame & Co, 1895) 10.
[58] Pope Leo XIII, ‘Rerum Novarum: Encyclical of Pope Leo XIII on Capital and Labor’ in Jordan J Ballor (ed), Makers of Modern Christian Social Thought: Leo XIII and Abraham Kuyper on the Social Question (Acton Institute, 2016) 3; Cardinal Archbishop of Sydney, Lecture on the Rights and Duties of Labour (n 52).
[59] This reflects the ‘two swords’ doctrine famously laid out by Pope Gelasius I in AD 494: ‘Two there are, august Emperor, by which this world is ruled: the consecrated authority of priests and the royal power’: Pope Gelasius I, ‘Letter to Emperor Anastasius’ in Oliver O’Donovan and Joan Lockwood O’Donovan (eds), From Irenaeus to Grotius: A Sourcebook in Christian Political Thought, 100–1625 (William B Eerdmans Publishing, 1999) 179, 179.
[60] Thomas T Love, ‘The Two Principles of Roman Catholic Church–State Relations’ (1965) 76(1) Ethics 57, 57.
[61] Pope Leo XIII, ‘Immortale Dei’ (n 51) 110 [13]; Pope Leo XIII, ‘Sapientiae Christianae’ (n 51) 218 [30].
[62] See, eg, Pope Leo XIII, ‘Sapientae Christianae’ (n 51) 218 [30].
[63] Pope Leo XIII, ‘Immortale Dei’ (n 51) 108–9 [6], 114 [34]; Pope Leo XIII, ‘Libertas: Encyclical of Pope Leo XIII on the Nature of Human Liberty’ in Claudia Carlen Ihm, The Papal Encyclicals: 1878–1903 (Pierian Press, 1990) 169, 180 [42] (‘Libertas’).
[64] Pope Leo XIII, ‘Libertas’ (n 63) 172 [10]. For a critique of this encyclical, see Frederick E Ellis, ‘The Concept of Liberty in the Papal Encyclical: Libertas Praestantissimum’ (1952) 2(4) Educational Theory 247, 251–5.
[66] Beck, Religious Freedom and the Australian Constitution (n 4) 12.
[67] Ibid.
[68] Ibid.
[69] Beck, ‘Theological Underpinnings’ (n 6) 1.
[70] Beck, Religious Freedom and the Australian Constitution (n 4) 14–15.
[71] Beck, ‘Theological Underpinnings’ (n 6) 5, quoting Ely, Unto God and Caesar (n 31) 22.
[72] Beck, Religious Freedom and the Australian Constitution (n 4) 13.
[73] See ibid 15–17.
[74] Ely, ‘Andrew Inglis Clark on the Preamble of the Australian Constitution’ (n 33) 40–1.
[75] Ibid 38. Clark’s original essay, titled ‘The Preamble to the Constitution of the Commonwealth of Australia’, is unpublished.
[76] Ibid.
[77] Beck, Religious Freedom and the Australian Constitution (n 4) 29.
[78] WDJ Cargill Thompson, The Political Thought of Martin Luther, ed Philip Broadhead (Harvester Press, 1984) 107–8, 150–4; David M Whitford, ‘Cura Religionis or Two Kingdoms: The Late Luther on Religion and the State in the Lectures on Genesis’ (2004) 73(1) Church History 41.
[79] John Witte Jr, Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge University Press, 2002) 129–32.
[80] J Wayne Baker, ‘Church, State, and Dissent: The Crisis of the Swiss Reformation, 1531–1536’ (1988) 57(2) Church History 135, 135–6.
[81] Thomas Harding (ed), The Decades of Henry Bullinger, Minister of the Church of Zurich, tr HI (Cambridge University Press, 1849) 323–44. See also Torrance Kirby, ‘The Civil Magistrate and the “Cura Religionis”: Heinrich Bullinger’s Prophetical Office and the English Reformation’ (2004) 9 Animus 25.
[82] John Calvin, Institutes of the Christian Religion, ed John T McNeill, tr Ford Lewis Battles (SCM Press, 1960) vol 2, 1495–7.
[83] Torrance Kirby, ‘“The Charge of Religion Belongeth unto Princes”’: Peter Martyr Vermigli on the Unity of Civil and Ecclesiastical Jurisdiction’ (2003) 94 Archiv für Reformationsgeschichte 161.
[84] Jordan J Ballor, Covenant, Causality, and Law: A Study in the Theology of Wolfgang Musculus (Vandenhoeck & Ruprecht, 2012) 183–94, 228–9.
[85] Theodore Beza, De Haereticis a Civili Magistratu Puniendis Libellus, adversus Martini Bellii Farraginem, et Novorum Academicorum Sectam (Oliva Roberti Stephani, 1554); Tadataka Maruyama, The Ecclesiology of Theodore Beza: The Reform of the True Church (Librairie Droz, 1978) 240.
[86] Martin Bucer, ‘De Regno Christi’ in Wilhelm Pauck (ed), Melanchthon and Bucer (SCM Press, 1969) 155, 266–7.
[87] Daniel Eppley, ‘Royal Supremacy’ in Torrance Kirby (ed), A Companion to Richard Hooker (Brill, 2008) 503; WDJ Cargill Thompson, Studies in the Reformation: Luther to Hooker, ed CW Dugmore (Athlone Press, 1980) 189.
[88] Francis Turretin, Institutes of Elenctic Theology, ed James T Dennison Jr, tr George Musgrave Giger (P&R Publishing, 1997) vol 3, 316–36.
[89] ‘The Belgic Confession of Faith, 1561’ in Arthur C Cochrane (ed), Reformed Confessions of the Sixteenth Century (Westminster John Knox Press, 2003) 185, 217 art XXXVI: the civil magistrate’s office is ‘not only to have regard unto and watch for the welfare of the civil state, but also that they protect the sacred ministry, and thus may remove and prevent all idolatry and false worship’.
[90] ‘The Scottish Confession of Faith, 1560’ in Arthur C Cochrane (ed), Reformed Confessions of the Sixteenth Century (Westminster John Knox Press, 2003) 159, 183 ch XXIV: ‘[W]e state that the preservation and purification of religion is particularly the duty of kings, princes, rulers, and magistrates. They are not only appointed for civil government but also to maintain true religion and to suppress all idolatry and superstition.’
[91] ‘The Second Helvetic Confession, 1566’ in Arthur C Cochrane (ed), Reformed Confessions of the Sixteenth Century (Westminster John Knox Press, 2003) 220, 299–300 ch XXX: ‘We certainly teach that the care of religion belongs especially to the holy magistrate.’
[92] The Thirty-Nine Articles: The Articles of Religion Agreed upon by the Archbishops, Bishops, and the Whole Clergy of the Provinces of Canterbury and York, London, 1562, art XXXVII (‘Thirty-Nine Articles’): ‘godly Princes’ are given the prerogative to ‘rule all estates and degrees committed to their charge by God, whether they be Ecclesiastical or Temporal’.
[93] The Confession of Faith of the Assembly of Divines at Westminster, ed SW Carruthers (Presbyterian Church of England, 1946) ch XXIII [3] (‘Westminster Confession’).
[94] Carter Lindberg, The European Reformations (Blackwell, 1996) 197.
[95] Ibid 169–97.
[96] See, eg, AA Hodge, The Confession of Faith (Banner of Truth Trust, 1958) 297–9.
[97] Abraham Kuyper, Lectures on Calvinism (Wm B Eerdmans Publishing, 1999) ch 3.
[98] Charles Hodge, Systematic Theology (Scribner, Armstrong, and Co, 1874) vol 3, 340–8.
[99] AA Hodge, Evangelical Theology: A Course of Popular Lectures (Banner of Truth Trust, 1976) 283 (‘Evangelical Theology’):
Since the kingdom of God on earth is not confined to the mere ecclesiastical sphere, but aims at absolute universality, and extends its supreme reign over every department of human life, it follows that it is the duty of every loyal subject to endeavour to bring all human society, social and political, as well as ecclesiastical, into obedience to its law of righteousness.
[100] Robert L Dabney, ‘The Christian Sabbath: Its Nature, Design and Proper Observance’ in CR Vaughan (ed), Discussions by Robert L Dabney (Presbyterian Committee of Publication, 1890) vol 1, 496, 544–50. See especially at 545: ‘The increasing disregard of the Lord’s day in the United States demands a renewed application of the authority of the civil law to support right customs.’ See also Robert L Dabney, Discussions: Evangelical and Theological (Banner of Truth Trust, 1982) vol 2, 594–617.
[101] James Henley Thornwell, ‘Relation of the State to Christ’ in John B Adger and John L Girardeau (eds), The Collected Writings of James Henley Thornwell (Presbyterian Committee of Publication, 1889) vol 4, 549. See especially at 551: ‘If, then, the State is an ordinance of God, it should acknowledge the fact.’
[102] CH Spurgeon, The Treasury of David (Passmore and Alabaster, 1871) vol 3, 318: ‘A righteous king is the patron and producer of righteous subjects.’
[103] See, eg, David VanDrunen, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought (William B Eerdmans Publishing, 2010); WJ Torrance Kirby, Richard Hooker’s Doctrine of the Royal Supremacy (EJ Brill, 1990) 41–51; Matthew J Tuininga, Calvin’s Political Theology and the Public Engagement of the Church: Christ’s Two Kingdoms (Cambridge University Press, 2017).
[104] Martin Luther, ‘The Freedom of a Christian, 1520’, tr WA Lambert in Theodore G Tappert (ed), Selected Writings of Martin Luther: 1520–1523 (Fortress Press, 2007) vol 2, 3, 20.
[105] Ibid 20–1.
[106] Ibid 42–3, 47.
[107] William J Wright, Martin Luther’s Understanding of God’s Two Kingdoms: A Response to the Challenge of Skepticism (Baker Academic, 2010) 118, 121.
[108] Martin Luther, ‘Temporal Authority: To What Extent It Should Be Obeyed, 1523’, tr JJ Schindel in Theodore G Tappert (ed), Selected Writings of Martin Luther: 1520–1523 (Fortress Press, 2007) vol 2, 265, 283 (‘Temporal Authority’).
[109] Ibid 297–8.
[110] Thompson, The Political Thought of Martin Luther (n 78) 46–8.
[111] Paul DL Avis, The Church in the Theology of the Reformers (John Knox Press, 1981) 4.
[112] W Bradford Littlejohn, The Peril and Promise of Christian Liberty: Richard Hooker, the Puritans, and Protestant Political Theology (William B Eerdmans Publishing, 2017) 261, 263.
[113] Tuininga (n 103) 286, 288.
[114] Robert von Friedeburg and Michael J Seidler, ‘The Holy Roman Empire of the German Nation’ in Howell A Lloyd, Glenn Burgess and Simon Hodson (eds), European Political Thought, 1450–1700: Religion, Law and Philosophy (Yale University Press, 2007) 102, 132–3.
[115] John Calvin, Commentary on a Harmony of the Evangelists: Matthew, Mark, and Luke, tr William Pringle (Wm B Eerdmans Publishing, 1949) vol 3, 44 (‘Commentary on a Harmony of the Evangelists’), discussing Gospel of St Matthew 22:21.
[116] Ely, ‘Andrew Inglis Clark on the Preamble of the Australian Constitution’ (n 33) 38.
[117] Luther, ‘Temporal Authority’ (n 108) 297, 304; Tuininga (n 103) 288–9, 312.
[118] See Ian Hazlett, ‘Church and Church/State Relations in the Post-Reformation Reformed Tradition’ in Ulrich L Lehner, Richard A Muller and AG Roeber (eds), The Oxford Handbook of Early Modern Theology, 1600–1800 (Oxford University Press, 2016) 242, 249–53.
[119] Tuininga (n 103) 313–14.
[120] RH Murray, The Political Consequences of the Reformation: Studies in Sixteenth-Century Thought (Ernest Benn, 1926) 183–4.
[121] See above nn 78–102 and accompanying text.
[122] Stephen A Chavura, John Gascoigne and Ian Tregenza, Reason, Religion and the Australian Polity: A Secular State? (Routledge, 2019) 131.
[123] Bruce Mansfield, ‘Thinking about Australian Religious History’ (1989) 15(3) Journal of Religious History 330, 343.
[124] Stuart Piggin and Robert D Linder, The Fountain of Public Prosperity: Evangelical Christians in Australian History, 1740–1914 (Monash University Publishing, 2018) 480.
[125] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 2 March 1898, 1741 (Sir John Downer).
[126] See Chavura, Gascoigne and Tregenza (n 122) 90–1.
[127] Ibid 126.
[128] Mansfield (n 123) 339–40, quoting Walter Philips, Defending ‘A Christian Country’: Churchmen and Society in New South Wales in the 1880s and After (University of Queensland Press, 1981) 188.
[129] Mansfield (n 123) 341. Melleuish argues that religion in Australia has evinced a general tendency to focus on moral rather than doctrinal questions: Gregory Melleuish, ‘A Secular Australia? Ideas, Politics and the Search for Moral Order in Nineteenth and Early Twentieth Century Australia’ (2014) 38(3) Journal of Religious History 398, 401.
[130] See generally Piggin and Linder (n 124) ch 16.
[131] Meredith Lake, The Bible in Australia: A Cultural History (NewSouth, 2018) 140.
[132] John Clifford, God’s Greater Britain (James Clarke & Co, 1899) 165.
[133] ‘Congregational Union of New South Wales: Annual Session’, The Sydney Morning Herald (Sydney, 23 October 1895) 8.
[135] Ibid 69, 103.
[136] Ibid 69.
[137] Editorial, The Sydney Morning Herald (Sydney, 6 March 1890) 6.
[139] Official Report of the National Australasian Convention Debates, Adelaide, 22 April 1897, 1187 (Edmund Barton) (‘Convention Debates (Adelaide)’).
[140] Westminster Confession (n 93) ch XXIII [3].
[141] Ibid ch XXX [1].
[142] Ibid ch XXIII [3].
[143] Ibid.
[144] Ibid.
[145] Cf AA Hodge, Evangelical Theology (n 99) 283–4. The Australian Presbyterian Churches in 1900 adopted a ‘declaratory statement’, titled ‘Basis of Union’, which provided that ‘liberty of opinion is allowed on matters in the subordinate standard not essential to the doctrine therein taught’, including the role of civil government, while retaining the Westminster Confession as the Churches’ doctrinal standard: Presbyterian Church of Australia Act 1900 (Vic) sch cl II.
[147] See Beck, Religious Freedom and the Australian Constitution (n 4) 127.
[148] Ibid 13.
[149] Ibid ch 2.
[150] ‘Protestants and Papists Uniting’ (1897) 12(16) Bible Echo 122.
[151] Ibid.
[152] The term ‘civic Protestantism’ was coined by Richard Ely, ‘Protestantism in Australian History: An Interpretative Sketch’ (1989) 5 Lucas 11 (‘Protestantism in Australian History’), cited in Beck, Religious Freedom and the Australian Constitution (n 4) 16.
[153] Beck, Religious Freedom and the Australian Constitution (n 4) 29–31.
[154] Ibid 17. See also Beck, ‘Theological Underpinnings’ (n 6) 15. In her recent work, Barker agrees that recognition of God in the Preamble and s 116 were included for largely political reasons, arguing that ‘[t]hey are a tangible reminders of the compromises needed to make Federation possible ... the churches were adamant that they would not support Federation if God was not recognised in the nation’s founding document’: Renae Barker, State and Religion: The Australian Story (Routledge, 2019) 68. Similarly, there were many petitions seeking to exclude God from the Constitution. ‘The solution was to both include God in the preamble and then exclude the Commonwealth from effectively doing anything about it’ through the insertion of what eventually became s 116: at 69. However, Barker’s conclusion focuses on the pragmatics of including the provisions, rather than the reasons why the churches advocated for the recognition of God in the first place. It is in the context of this latter issue where we wish to challenge Beck’s account. We do not deny that there were significant political reasons for why recognition was eventually accepted.
[155] Constitution Preamble.
[156] Beck, Religious Freedom and the Australian Constitution (n 4) 24–8. Beck makes reference to a belief ‘that a religious preamble would have actual legal effect’ and ‘that constitutional recognition of God would authorise legislation concerning religion’, but the sources cited in support of this suggest the existence of a hope that constitutional recognition would exert moral force in preventing the secularisation of Australian laws, and do not appear to advocate the hope or belief that constitutional recognition would have substantive legal consequence: at 18–19. See also Luke Beck, ‘The Constitutional Prohibition on Imposing Religious Observances’ (2017) 41(2) Melbourne University Law Review 493, 499, where Beck claims that ‘[s]ome proponents of constitutional recognition of God believed that a religious Preamble would have actual legal effect and authorise laws concerning religion’, but only cites Richard Ely and does not refer to any specific proponents of that view.
[157] See, eg, Constance Youngwon Lee, ‘Calvinist Natural Law and Constitutionalism’ (2014) 39 Australian Journal of Legal Philosophy 1.
[158] Beck, Religious Freedom and the Australian Constitution (n 4) 16, quoting Ely, ‘Protestantism in Australian History’ (n 152) 15.
[159] John Hirst, The Sentimental Nation: The Making of the Australian Commonwealth (Oxford University Press, 2000) 15. See generally at ch 1.
[160] Ibid ch 1.
[161] Beck, Religious Freedom and the Australian Constitution (n 4) 17.
[162] Ibid.
[163] Ibid 17–18. See also Alan Atkinson, The Europeans in Australia (UNSW Press, 2014) vol 3, ch 9 for a detailed discussion.
[165] Ibid 8, 10.
[166] Ibid 6–7.
[167] Ibid 6–7, 15–18; ‘The Federal Convention’ (1897) 12(5) Presbyterian Monthly 153.
[169] Piggin and Linder (n 124) 483, quoting Walter Phillips, James Jefferis: Prophet of Federation (Australian Scholarly Publishing, 1993) 238.
[170] Piggin and Linder (n 124) 481. See also Atkinson (n 163) 275–6.
[171] Robert Withycombe, Montgomery of Tasmania: Henry and Maud Montgomery in Australasia (Acorn Press, 2009) 124–7.
[172] Beck, Religious Freedom and the Australian Constitution (n 4) 13, 17–18.
[173] Chavura, Gascoigne and Tregenza (n 122) 207. See also at 90, 104–5, 126, 183.
[174] Beck, Religious Freedom and the Australian Constitution (n 4) 31.
[175] An example is the Public Questions Committee, a committee of the Presbyterian Church of Victoria established to report on, and be involved in, public questions. To claim otherwise is a Rawlsian retrojection — namely, that religious doctrines should not influence public policy. Cf John Rawls, Political Liberalism: Expanded Edition (Columbia University Press, 2005) 458–60.
[176] The details of this theological conviction are explained in Part V below.
[177] Chavura, Gascoigne and Tregenza (n 122) 138 (citations omitted).
[178] Beck, Religious Freedom and the Australian Constitution (n 4) 127.
[179] See generally Beck, ‘Theological Underpinnings’ (n 6); ibid ch 3.
[180] ‘The “Council of Churches” Petition: Should It Be Granted?’ (1897) 12(13) Bible Echo 99 (‘The “Council of Churches” Petition’).
[181] See, eg, Piggin and Linder (n 124) ch 16. Although it was not unusual for people to argue that religion and state should be separate, by this they meant that the state should not be sectarian rather than that the state should be completely ‘secular’: see, eg, Chavura, Gascoigne and Tregenza (n 122) chs 2–3.
[182] See ‘The “Council of Churches” Petition’ (n 180) 99; ‘Petitions! Petitions! Petitions!’ (n 36) 104. See also ‘Aims of the Council of Churches’ (1897) 12(28) Bible Echo 224.
[183] ‘What Will Follow’ (1897) 12(28) Bible Echo 217.
[184] ‘Governmental Recognition of God: What Does It Mean?’ (1897) 12(28) Bible Echo 220 (‘Governmental Recognition of God’).
[185] ‘The “Council of Churches” Petition’ (n 180) 99:
This effort on the part of the churches to introduce religion into the Constitution is but the first of a series of steps. If they succeed in getting a religious clause in the Constitution, then they will demand religious laws. And having secured the religious clause in the Constitution, they will plead the Constitution as the basis for the laws demanded. Such laws will then be ‘constitutional’.
And if it is right for the government to make religious laws, it will be right for it to enforce them, and this means religious persecution to everyone who cannot subscribe to the religion required by the laws.
Such is the inevitable logic of the petition which the Council of Churches has sent to the Federal Convention.
[186] Beck, ‘Theological Underpinnings’ (n 6) 7.
[187] Ibid 5, citing Ely, Unto God and Caesar (n 31) 21–2.
[188] AG Daniells, ‘The Sentinel’ (1894) 1(1) Australian Sentinel and Herald of Liberty 1.
[189] ‘Separation of Church and State’ (1897) 12(21) Bible Echo 162.
[190] ‘Religion and the State’ (1897) 12(21) Bible Echo 162.
[191] Beck, ‘Theological Underpinnings’ (n 6) 16.
[192] ‘The “Christian Citizenship” Movement’ (1897) 12(23) Bible Echo 177.
[193] ‘Religion and the State’ (n 190) 162.
[194] ‘The “Christian Citizenship” Movement’ (n 192) 177.
[195] Ibid.
[196] Ibid.
[197] ‘Cardinal Moran’s Proposed Preamble’ (1897) 12(7) Bible Echo 51.
[198] ‘Governmental Recognition of God’ (n 184) 220. See also ‘Our Petition’ (1897) 12(16) Bible Echo 128.
[199] ‘A Movement on the Parliaments’ (1897) 12(21) Bible Echo 161.
[200] ‘A Mistaken Zeal’ (1897) 12(21) Bible Echo 161.
[201] ‘Separation of Church and State’ (1897) 12(21) Bible Echo 162.
[202] ‘Our Position’ (1897) 12(21) Bible Echo 168.
[203] Gospel of St Matthew (Oxford University Press, Authorized King James Version, 1997 ed) 22:21.
[204] Calvin, Commentary on a Harmony of the Evangelists (n 115) 44.
[205] There is considerable literature on this point: see, eg, Steven G Calabresi, ‘Render unto Caesar That Which Is Caesar’s, and unto God That Which Is God’s’ (2008) 31(2) Harvard Journal of Law and Public Policy 495; Scot McKnight and Joseph B Modica (eds), Jesus Is Lord, Caesar Is Not: Evaluating Empire in New Testament Studies (IVP Academic, 2013); Christopher Bryan, Render to Caesar: Jesus, the Early Church, and the Roman Superpower (Oxford University Press, 2005).
[206] See Gospel of St John (Oxford University Press, Authorized King James Version, 1997 ed) 18:36.
[207] See Luther, ‘Temporal Authority’ (n 108) 283, 297–8.
[208] See Beck, ‘Theological Underpinnings’ (n 6) 16. See generally Alex Deagon, From Violence to Peace: Theology, Law and Community (Hart Publishing, 2017) (‘From Violence to Peace’).
[209] Proceedings of the People’s Federal Convention, Bathurst, 16 November 1896, 20–1 (Alexander Gosman).
[210] Beck, Religious Freedom and the Australian Constitution (n 4) 9–10.
[211] Alexander Gosman, ‘Imperial Federation and Congregationalism’ in Jubilee of Congregationalism in South Australia: Report of Intercolonial Conference Held in Adelaide, September, 1887 (WK Thomas & Co, 1887) 82, 82−5.
[212] Ibid; Beck, Religious Freedom and the Australian Constitution (n 4) 10. Cf Alex Deagon, ‘Secularism as a Religion: Questioning the Future of the “Secular” State’ (2017) 8 Western Australian Jurist 31.
[213] See Deagon, From Violence to Peace (n 208); Alex Deagon, ‘Liberal Secularism and Religious Freedom in the Public Space: Reforming Political Discourse’ (2018) 41(3) Harvard Journal of Law and Public Policy 901 (‘Liberal Secularism’).
[214] See, eg, John Milbank, Beyond Secular Order: The Representation of Being and the Representation of the People (Wiley Blackwell, 2013); John Milbank and Adrian Pabst, The Politics of Virtue: Post-Liberalism and the Human Future (Rowman & Littlefield, 2016).
[215] Stanley Fish, ‘Liberalism Doesn’t Exist’ [1987] (6) Duke Law Journal 997, 1000; Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2nd ed, 2013) 17–18, 65.
[216] Deagon, ‘Liberal Secularism’ (n 213). See above Part IV.
[217] JA La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) 225, cited in Beck, Religious Freedom and the Australian Constitution (n 4) 44.
[218] Beck, Religious Freedom and the Australian Constitution (n 4) 12. Beck refers to this as ‘putting religion in the Constitution’: at 13.
[219] Ibid 4.
[220] Beck, ‘Theological Underpinnings’ (n 6) 16.
[221] Beck, Religious Freedom and the Australian Constitution (n 4) 77.
[222] See, eg, ibid 119.
[223] Chavura, Gascoigne and Tregenza (n 122) 126; Barker (n 154) 96–9.
[224] Beck, Religious Freedom and the Australian Constitution (n 4) 15–19; Beck, ‘Theological Underpinnings’ (n 6) 15.
[225] Beck, Religious Freedom and the Australian Constitution (n 4) 13. See generally at 12–19.
[226] Ibid 12, quoting Michael Hogan, The Sectarian Strand: Religion in Australian History (Penguin Books, 1987) 97.
[227] See above Part IV.
[228] As we indicate in Part III(C) above. See Deagon, ‘Defining the Interface of Freedom and Discrimination’ (n 1) 256–8. This claim is also supported by Puls (n 3) 140, citing McLeish (n 2) 217.
[229] Chavura, Gascoigne and Tregenza (n 122) 137 (emphasis in original).
[230] Ibid 126.
[231] Convention Debates (Adelaide) (n 139) 1184 (Patrick Glynn).
[232] Chavura, Gascoigne and Tregenza (n 122) 137. See also Hirst (n 159) ch 1; Atkinson (n 163) ch 9.
[233] Augusto Zimmermann, Christian Foundations of the Common Law (Connor Court Publishing, 2018) vol 3, 52 (emphasis in original). Chavura, Gascoigne and Tregenza (n 122) agree that recognition was in no insignificant part due to popular support among delegates and the community generally: at 126–7, 137.
[235] See Beck, Religious Freedom and the Australian Constitution (n 4) 12–15, 32–7.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MelbULawRw/2020/15.html