buckeye
2008-09-26 11:18:39 UTC
When there is no separation of church and state
http://www.onlineopinion.com.au/view.asp?article=7936
By Max Wallace - posted Thursday, 25 September 2008
Michael Gawendas comment in The Age (June 26, 2008) that there is no
constitutional separation of church and state in Australia was the first
time those words have appeared in any Australian newspaper under the
by-line of a respected commentator. The former editor-in-chief of The Age
could draw this conclusion as he had been reporting from the US for many
years as a political correspondent. Living among American political culture
and looking back at Australia from that standpoint, he could see what
nearly every other Australian journalist or political commentator has
failed to see.
It is passing strange that Australia follows the United States in many
areas of policy - except its republicanism. The cornerstone of American
republicanism is separation of church and state. But this central fact
about the US has been completely omitted from the Australian debate.
In February 2006 Australians were asked in a Newspoll survey for the first
time whether they believed there was a law separating church and state in
Australia. In round figures 34 per cent did not know; 20 per cent said
there is a law; 46 per cent said there is not.
The majority, surprisingly, got it right. There is no law separating church
and state in Australia. We are, after all, a British constitutional
monarchy, not a republic.
If we were to ask the 46 per cent why they believed there was no separation
in Australia, it is very unlikely any of those surveyed would be able to
explain their response. The majoritys answers, were, I suggest, intuitive,
and spoke to their concerns about the developing influence of religion on
our politics.
But there is no problem with religious figures and lobbyists trying to
influence politics. In a free society, that is a right. The majoritys
answer could be interpreted to mean they were uncomfortable with the
perceived effects of that lobbying and influence.
Be that as it may, the majoritys answer stands paradoxically opposed to
the views of the current and the previous prime ministers. When asked by a
lone, Associated Press journalist for his view on the matter, John Howard,
on March 2, 2006, said that what the separation of church and state means
in this country is that there is no established church we dont have the
Anglican church as the official state religion, thats what it means.
On October 4, 2006 on Radio Nationals Religion Report Kevin Rudd also
equated the lack of an established church in Australia with separation of
church and state. He added he was a lifelong defender of separation of
church and state.
What John Howard said was an eloquent lawyers definition of the meaning of
establishment. It was not a definition of separation.
In 1897 Australias first prime minister, Edmund Barton, had said something
similar. During the Constitutional Convention in Adelaide he said that
unless a state has an established church, the state is secular.
But that was before the religion section, s.116, was made part of the 1901
constitution, and before its meaning was finally clarified in the Defence
of Government Schools High Court case in 1981 as Michael Gawenda noted.
Before recalling what the High Court found, its important to understand
what s.116 says and what inspired it. In plain English s.116 says:
1. there cannot be one official religion in Australia as in England,
as John Howard said. There, the Church of England is identified with the
state by an act of parliament. There is no constitutional separation and
Anglican bishops are appointed to the House of Lords;
2. the state cannot oblige us to attend any religious event;
3. you can believe whatever you like and practice your belief (so long
as that practice does not contravene any law);
4. all public positions in Australia are up for grabs and your religion
or lack of it shall never be a consideration in your right to stand or
apply for them.
S.116 was clearly based on the First Amendment to the United States
Constitution. It states that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.
In 1947 in the Everson case, the First Amendment was interpreted to mean
that there is a wall of separation between church and state in the United
States. The key words were spoken by Justice Hugo Black. As a result of
that decision, major federal government funding of non-government schools
was denied. The decision still grates in the US.
In his Onward Christian Soldiers: the growing political power of Catholics
and Evangelicals in the United States, published this year, Dr Deal W.
Hudson, self-described as a former member of the National Republican
Committee and a Bush White House intimate, said that a strong animus was
in play in the writing of the Everson decision. Hudson claims that Justice
Black was in the 1920s a member of the Robert E. Lee Klan No.1 cell of the
Klu Klux Klan in Birmingham, Alabama and that anti-Catholicism and
anti-Semitism were KKK specialties in addition to racism.
That is quite a swipe. Even if is true, it is hardly fair to mount a
personal attack like this rather than a reasoned critique of the courts
decision.
Dr Hudson would no doubt be more comfortable with the Australian High
Courts 1981 decision that allowed federal funding to non-government
schools. But the price paid for this decision was the scuppering of the
principle of separation of church and state in Australia.
In reaching their decisions, Justices Wilson and Stephen explicitly denied
separation in Australia. The Chief Justice, Sir Garfield Barwick, endorsed
Wilsons view which was that s.116 cannot be viewed as the repository of
some broad statement of principle concerning separation of church and
state, from which may be distilled the detailed consequences of such
separation. Justice Stephen said of s.116 the provision cannot answer
the description of a law which guarantees within Australia the separation
of church and state.
While the Court referred to the idea that s.116 did not entail an
established church in Australia, it did not equate a lack of
establishment with separation as John Howard believes. In true black letter
legalese, the constitutional prohibition against an establishment of a
church as the official state religion in Australia does not mean separation
of church and state: it means there is a prohibition against the
establishment of an official state religion.
It would seem two Australian prime ministers do not understand this. To my
knowledge, there is no constitutional expert in this country prepared to
argue otherwise.
The wall of separation between church and state in the Republic of the
United States has been well and truly battered but its still standing.
Accordingly, the original idea for Iraq was that it would be a secular
republic.
What about Australia? How can we make the transition from constitutional
monarchy to a secular republic if we do not separate church and state as in
the US model? Australian political culture is still British albeit without
an established church. These comments also apply to New Zealand which also
has no constitutional separation.
I suggest that is no longer appropriate for a multicultural nation,
seeking, as the Prime Minister has reiterated recently, to be a closer
partner with Asia. His Mandarin is impressive and our ambassadors are
professional. But we still come across as an enclave of the former British
Empire that has not managed to remove the British flag from the corner of
our own. We share that dubious distinction with New Zealand, Fiji, and
Tuvalu.
Also, look at our parliaments. They are filled with mostly white, male,
suburban solicitors. We need a new, republican structure that encourages
diversity because we need everybodys ideas regardless of gender,
ethnicity, religion or belief.
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
http://www.onlineopinion.com.au/view.asp?article=7936
By Max Wallace - posted Thursday, 25 September 2008
Michael Gawendas comment in The Age (June 26, 2008) that there is no
constitutional separation of church and state in Australia was the first
time those words have appeared in any Australian newspaper under the
by-line of a respected commentator. The former editor-in-chief of The Age
could draw this conclusion as he had been reporting from the US for many
years as a political correspondent. Living among American political culture
and looking back at Australia from that standpoint, he could see what
nearly every other Australian journalist or political commentator has
failed to see.
It is passing strange that Australia follows the United States in many
areas of policy - except its republicanism. The cornerstone of American
republicanism is separation of church and state. But this central fact
about the US has been completely omitted from the Australian debate.
In February 2006 Australians were asked in a Newspoll survey for the first
time whether they believed there was a law separating church and state in
Australia. In round figures 34 per cent did not know; 20 per cent said
there is a law; 46 per cent said there is not.
The majority, surprisingly, got it right. There is no law separating church
and state in Australia. We are, after all, a British constitutional
monarchy, not a republic.
If we were to ask the 46 per cent why they believed there was no separation
in Australia, it is very unlikely any of those surveyed would be able to
explain their response. The majoritys answers, were, I suggest, intuitive,
and spoke to their concerns about the developing influence of religion on
our politics.
But there is no problem with religious figures and lobbyists trying to
influence politics. In a free society, that is a right. The majoritys
answer could be interpreted to mean they were uncomfortable with the
perceived effects of that lobbying and influence.
Be that as it may, the majoritys answer stands paradoxically opposed to
the views of the current and the previous prime ministers. When asked by a
lone, Associated Press journalist for his view on the matter, John Howard,
on March 2, 2006, said that what the separation of church and state means
in this country is that there is no established church we dont have the
Anglican church as the official state religion, thats what it means.
On October 4, 2006 on Radio Nationals Religion Report Kevin Rudd also
equated the lack of an established church in Australia with separation of
church and state. He added he was a lifelong defender of separation of
church and state.
What John Howard said was an eloquent lawyers definition of the meaning of
establishment. It was not a definition of separation.
In 1897 Australias first prime minister, Edmund Barton, had said something
similar. During the Constitutional Convention in Adelaide he said that
unless a state has an established church, the state is secular.
But that was before the religion section, s.116, was made part of the 1901
constitution, and before its meaning was finally clarified in the Defence
of Government Schools High Court case in 1981 as Michael Gawenda noted.
Before recalling what the High Court found, its important to understand
what s.116 says and what inspired it. In plain English s.116 says:
1. there cannot be one official religion in Australia as in England,
as John Howard said. There, the Church of England is identified with the
state by an act of parliament. There is no constitutional separation and
Anglican bishops are appointed to the House of Lords;
2. the state cannot oblige us to attend any religious event;
3. you can believe whatever you like and practice your belief (so long
as that practice does not contravene any law);
4. all public positions in Australia are up for grabs and your religion
or lack of it shall never be a consideration in your right to stand or
apply for them.
S.116 was clearly based on the First Amendment to the United States
Constitution. It states that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.
In 1947 in the Everson case, the First Amendment was interpreted to mean
that there is a wall of separation between church and state in the United
States. The key words were spoken by Justice Hugo Black. As a result of
that decision, major federal government funding of non-government schools
was denied. The decision still grates in the US.
In his Onward Christian Soldiers: the growing political power of Catholics
and Evangelicals in the United States, published this year, Dr Deal W.
Hudson, self-described as a former member of the National Republican
Committee and a Bush White House intimate, said that a strong animus was
in play in the writing of the Everson decision. Hudson claims that Justice
Black was in the 1920s a member of the Robert E. Lee Klan No.1 cell of the
Klu Klux Klan in Birmingham, Alabama and that anti-Catholicism and
anti-Semitism were KKK specialties in addition to racism.
That is quite a swipe. Even if is true, it is hardly fair to mount a
personal attack like this rather than a reasoned critique of the courts
decision.
Dr Hudson would no doubt be more comfortable with the Australian High
Courts 1981 decision that allowed federal funding to non-government
schools. But the price paid for this decision was the scuppering of the
principle of separation of church and state in Australia.
In reaching their decisions, Justices Wilson and Stephen explicitly denied
separation in Australia. The Chief Justice, Sir Garfield Barwick, endorsed
Wilsons view which was that s.116 cannot be viewed as the repository of
some broad statement of principle concerning separation of church and
state, from which may be distilled the detailed consequences of such
separation. Justice Stephen said of s.116 the provision cannot answer
the description of a law which guarantees within Australia the separation
of church and state.
While the Court referred to the idea that s.116 did not entail an
established church in Australia, it did not equate a lack of
establishment with separation as John Howard believes. In true black letter
legalese, the constitutional prohibition against an establishment of a
church as the official state religion in Australia does not mean separation
of church and state: it means there is a prohibition against the
establishment of an official state religion.
It would seem two Australian prime ministers do not understand this. To my
knowledge, there is no constitutional expert in this country prepared to
argue otherwise.
The wall of separation between church and state in the Republic of the
United States has been well and truly battered but its still standing.
Accordingly, the original idea for Iraq was that it would be a secular
republic.
What about Australia? How can we make the transition from constitutional
monarchy to a secular republic if we do not separate church and state as in
the US model? Australian political culture is still British albeit without
an established church. These comments also apply to New Zealand which also
has no constitutional separation.
I suggest that is no longer appropriate for a multicultural nation,
seeking, as the Prime Minister has reiterated recently, to be a closer
partner with Asia. His Mandarin is impressive and our ambassadors are
professional. But we still come across as an enclave of the former British
Empire that has not managed to remove the British flag from the corner of
our own. We share that dubious distinction with New Zealand, Fiji, and
Tuvalu.
Also, look at our parliaments. They are filled with mostly white, male,
suburban solicitors. We need a new, republican structure that encourages
diversity because we need everybodys ideas regardless of gender,
ethnicity, religion or belief.
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Historical Reality SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
***************************************************************
. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************