TRAVELLING SECTION 116 WITH A V.S. ROAD MAP
By
CUFFORD
L.
PANNAM*
Many sections of the Australian Constitution reflect the powerful
influence of American precedent on its draftsmen. 1 None however
represents the force of that influence as clearly as does section 116
which provides as follows:
The Commonwealth shall not make any law for establishing any religion, <;>r for imposing any religious observance, or for prohibIting
free exercise of any religion, and no religious test shall be required
as a qualification for any office or public trust under the Commonwealth.
Apart from the addition of a clause prohibiting laws which impose
religious observances it mirrors the following provisions of the United
States Constitution:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.... 2
No reli~ious test shall ever be required as a qualification to any office
or pubhc trust under the United States .....
There are some slight verbal differences. As will be seen later these
may lead to different legal consequences. However the fact is that
section 116 is a fairly blatant piece of transcription.
In some provisions the use made of American precedent by the
Australian draftsmen was very discriminating, but section 116 is
certainly not an example of their discrimination. Instead it represents
the ultimate of completely senseless copying. For many years it has
been one of the forgotten sections of the Australian Constitution. It
is regarded by many as a curious historical oddity and by all as
having little practical value. The High Court has rarely been called
upon to construe its provisions, and even on those rare occasions
only one of the four separate concepts embodied in section 1 16 has
been before it. Thus the limits of the section remain obscure and its
content is ill-defined.
There have been developments however, over the last sixty years
that may lend section 116 an unforeseen importance. I refer to the
acquisition by the Commonwealth of large areas of land as Federal
territories. These territories include the Australian Capital Territory
• LL.B. (Melb.), LL.M. (Illinios), Senior Lecturer in Law in the University of
Melbourne.
1 See generally:
Hunt, American Precedent in Australian Federation (1930);
Cowen, Federal Jurisdiction in Australia (1959)'
2 U.S. Const., Amend. I.
3 U.S. Const., art. VI, §3.
41
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which houses the seat of government. The vast Northern Territory,
Papua, the Trust territory of New Guinea, Jervis Bay, and several
islands4 complete the list. If section 1 16 fetters the legislative power
of the Commonwealth in the government of these areas then it will
have a significant operation which was entirely unforeseen when
the Constitution was drafted. This question has as yet found no
authoritative answer in Australian constitutional law.
However the present writer has argued elsewhere that section 116
does apply in the territories and he is confident of the ultimate acceptance of this view. 5 The point to be made here is that section II6
has an important potential significance.
A study of the interpretation given the American provisions by
the Supreme Court of the United States might therefore be of some
value. The measure of that value will however be strictly dependent
upon a frank recognition of the many differences that exist between
the two countries. Comparative studies are of little value unless the
many legal, social, and institutional differences between the two
countries are taken into account. The American experience is not
directly transferable to Australia and in the first part of this paper
some of the reasons for this are set out. 6 With these thoughts in
mind it is the purpose of this paper to explore some of the fundamental problems involved in the interpretation of section 116.
One overriding difference between the Australian and the American provisions should be continually kept in mind throughout the
following discussion. Section II6 only applies to the Commonwealth
government and has no application to the States. On its face the
First Amendment similarly only applies to the United States Government. 1 However the Supreme Court has held that it applies to the
States as well by way of the Fourteenth Amendment. 8 There is no
4 Heard and McDonald Islands, Norfolk Island, Cocos Island, Ashmore and Cartier
Islands. The Antarctic Territory might also be mentioned.
5 Pannam, 'Section 116 and the Federal Territories' (1961) 35 Australian Law
Journal 209.
6 No attempt has been made to draw attention to the many differences between
the two Courts-the High Court of Australia and the Supreme Court of the United
States-which are responsible for the interpretation of the two provisions. There
are many articles in the periodical literature documenting the differences; e.g.
Cowen, 'A Comparison of the Constitutions of Australia and the United States'
(1955) 4 Buffalo Law Review 155; Sawer, 'The Supreme Court and the High Court
of Australia' (1957) 6 Journal of Public Law 482; Kadish, 'Judicial Review in the
High Court and the United States Supreme Court' (1959) 2 M.U.L.R. 4 and 127
(this article also appears in (1958) 37 Texas Law Review I and 133).
1 U.S. Const., Amend. I; 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ' . Author's italics.
Befor~ the passage of th~ Fourteenth Amendment the Supreme Court had held that
the First Amendment did not apply to the States; Permoli v. New Orleans (1845)
3 How. 589.
8 Th~ free e~ercise clause of the First Amendment was first held to apply to the
States In Hamtlton v. The Regents of the University of California (1934) 293 U.S.
245, and Cantwell v. Connecticut (1940) 310 U.S. 296. The establishment clause has
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116
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equivalent to the Fourteenth Amendment to the Australian Constitution. This means that in theory the Australian States are free
to establish any religion they please and to completely deny all
religious freedom." It is inconceivable, but it would not be unconstitutional.
PART I:
TWO CONTRASTS
I
In our steadfast faith in responsible government and in plenary
legislative powers distributed, but not controlled, you as Americans
may perceive nothing better than a refusal to see the light and an
obstinate adherence to heresies; but we remain impenitent. Io
Perhaps the most obvious point of difference between the Constitutions of Australia and the United States is the relative importance
given in each to formal guarantees of personal freedom. In the United
States Constitution, and the amendments to it, there is a detailed
catalogue of prohibitions attaching to the legislature, and of rights
to be enjoyed by the people. For example, the Congress is made incompetent to interfere with the freedoms of speech, press, assembly
and religion. It is forbidden the power to impose cruel or unusual
punishments. It cannot enact ex post facto laws or suspend the availability of the writ of Habeas Corpus. Trial by jury is guaranteed in
certain cases, and illegal searches and seizures are guarded against.
On the other hand, although the Australian Constitution contains
a few faint and. rather curious echoes of some of these provisions,
it can be generally said that the authority of the Commonwealth
Parliament is unfettered by such limitations.
The reasons explaining this difference are not very difficult to discover. First the Constitutions were drafted in vastly different political
atmospheres. In the eighteenth century the American Colonies
had revolted against British oppression and declared their independence. As in many revolutions an elaborate justification for this
action was found by reference to higher law principles. The doctrine
of the natural rights of man as espoused by Locke and Rousseau,
also been held to apply to the States: Everson v. Board of Education (1947) 330
U.S. I; McCollum v. Board of Education (1948) 333 U.S. 203; Zorach v. Clauson
(1952) 343 U.S. 306. Although the point seems well settled several commentators
have been extremely critical of this latter result: e.g. Snee, 'Religious Disestablishment and the Fourteenth Amendment' [1954] Washington University Law Quarterly
371; Corwin, 'The Supreme Court as National School Board' (1949) 14 Law and Contemporary Problems 3, 19·
9 The one exception to the statement is Tasmania: infra p. 56.
10 Sir Owen Dixon, Chief Justice of the High Court of Australia, in an address
at an annual dinner of the American Bar Association: (1942) 28 American Bar
Association Journal 733, 734. Sir Owen was Australian Ambassador to the United
States for a period during World War n.
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and modified to suit local conditions by Jefferson and Paine, provided
a sound philosophical basis for the revolution. It was not surprising
that in such an atmosphere men felt that the rights they had fought
to vindicate should find a place in the new Federal Constitution.
The rights of man were good against all government and not only
the British. Thomas J efferson voiced a general sentiment when he
wrote to Madison criticizing the absence of a Bill of Rights in the
Constitution as it emerged from the Convention:
I will now tell you what I do not like. First the omission of a bill of
rights, providing dearly and without aid of sophism, for freedom of
religion . . . the press, protection against standing armies, restriction
of monopolies, the eternal and unremitting force of habeas corpus
laws, and trial by jury.... Let me add, that a bill of rights is what
the people are entitled to against every government on earth, general
or particular, and what no just government should refuse or rest on
inference. l l
This omission was rectified in the very first session of the First Congress with the addition of the first ten Amendments to the Constitution.
In Australia at the end of the nineteenth century a very different
atmosphere prevailed. The lethargic movement of the Australian
Colonies towards federation was completely uninfluenced by such
philosophic speculation. Self-government had been obtained without
any great struggle against the British government. A revolution did
not have to be justified nor was there a class of leisurely gentlemen
who studied political philosophy, much less who wrote any of their
own. In Australia the only equivalent to the intellectual aristocrats
of Virginia was a 'bunyip aristocracy' as the would-be landed gentry
of New South Wales were contemptuously called. Such radicalism
as there was came from the growing trade union movement, but
even this was essentially pragmatic. It demanded restraint on the
alienation of Crown land not because this was a step towards a
socialist conception of state ownership, but because experience had
taught that free trade in land meant land monopoly. Likewise the
adoption of compulsory arbitration of labour disputes did not come as
a result of abstract theorizing, but as a practical method of ending the
barbarism of strikes or lockouts. The flavour of Australian radicalism
was captured in a phrase coined by a French visitor, and used as
the title of a book he wrote, (Le Socialisme Sans Doctrines'.12
11 Jefferson to Madison, 20 December 1787; The Writings of Thomas Jefferson
(Memorial ed. 1904) vi, 387.
12 Metin, Le Socialisme Sans Doctrines (2nd ed. 1910). Another visitor, W. P. Reeves,
said about the Australian working class movement: 'Hazy and half-inarticulate
as their speakers so often seem when groping after the general principles of policy.
crude and careless as they appear on the rare occasions they touch economics.
there is no want of distinct purpose or practical skill in their acts': Reeves. State
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Perhaps the only upsurge of theoretical speculation about the
'rights of man' in nineteenth century Australia occurred in Queensland, for a brief period in the late 1880'S and early 1890's. This came
about because of the influence of one man, William Lane. Through
the pages of the working class newspapers, the Boomerang and the
Worker, he preached his ideas about the proper ordering of society.
Although many notable people flirted with his ideas at the time I
only mention him here because of the eventual disillusionment he
found in Australia. 13 With the ruthless crushing of the 1892 strikes
in Queensland he fled to the wilds of Paraguay to found a 'New
Australia'. There he hoped to establish a community that would be
more receptive to his ideas about the rights of the individual. In
the Constitution he drafted for the 'New Australia Association' there
can be found one of the few 'bill of rights' type clauses ever formulated in Australia. It provided:
The individuality of every member in thought, religion, speech, and
leisure, and in all matters where the individuality of others is not
affected, to be held inviolable. 14
The significant thing is that it was for use in Paraguay and not in
Australia. Thinking such as this was not represented in any of the
Australian constitutional conventions and it was so far outside the
Australian tradition to ensure that it would never find a place in
the Federal Constitution.
Another factor that must be taken into account in any attempt
to explain the different emphasis on constitutionally guaranteed
rights in Australia and the United States is the different conception
of government reflected in the two Constitutions. In eighteenth
century America there was an essentially negative attitude towards
government. It was feared that the new Congress might develop
the tendencies of a reincarnated George III and so limits to its
authority were prescribed. The whole elaborate system of checks and
balances implicit in the United States Constitution reveals an attitude that government, like a dangerous dog, has to be muzzled.
What was needed was that men should be free to develop the country
and tap its vast resources, unfettered by legislative impediment. On
the other hand in Australia there was a contrasting positive atExperiments in Australia and New Zealand ('902) 59 If. Also Hancock, Australia
('930) 6. If.; Encel, 'The Concept of State in Australian Politics' ('960) 6 Australian
Journal ot Politics and History 62.
13 William Lane's life and work is very well described in Ross, William Lane and
the Australian Labour Movement (3rd ed. '942). It is interesting to note that Sir
Samuel Griffith, who later became the first Chief Justice of the High Court of Aus·
tralia, was influenced by Lane at this time. He went so far as to introduce into the
Queensland Legislative Assembly a remarkable Bill which purported to set out
certain 'fundamental' or 'natural' laws of property. The Bill was read only the first
time, and then lapsed. He also wrote several articles of a socialist slant for the
Boomerang.
14 Article 9. See St Ledger, Australian Socialism ('9'9) 58 If.
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[VOLUME 4
titude towards government. It was called upon to remedy abuses
and take an active part in directing the progress of the country. It
was expected to build railways, to establish postal services, to correct
social injustice, to compulsorily settle labour disputes, in a way that
was completely alien to the American tradition. 15 The struggle in
Australia therefore was to make the various Parliaments more representative by abolishing the restrictive franchise rather than to
limit their powers. Lord Bryce in 1901 pointed to this difference in
an essay on the Australian Constitution, where he said:
This diversity of attitude between the English on the one hand and
the American on the other is a curious instance of the way in which
usage and tradition mould a nation's mind. Parliament was for so
long a time the protector of Englishmen against an arbitrary Executive that they did not form the habit of taking precautions against
the abuse of the powers of the Legislature; and their struggles for a
fuller freedom took the form of making Parliament a more truly
popular and representative body, not that of restricting its authority.'6
In this passage Bryce uses the word 'English' to include Australians and to distinguish them from the Americans. This is significant.
It emphasizes the fact that Australia is a very 'English' country.
All Australian governments, Federal and State, are moulded on the
English system. The concept of Responsible Government under which
the executive are members of the legislature, and dependent for
their authority upon the control of a majority of that body, has
always been a part of the political system in Australia. 17 This is in
contrast to the United States where the separation of powers, that
Montesquieu imagined he saw in the English Constitution, has been
adopted, with the result that the President is completely divorced
from the legislature. Also deeply embedded in the tradition inherited
from England was the theory of the omnicompotence of Parliament.
This theory which would give the legislature complete power of
repeal over all legislation, and complete authority to enact whatever
laws it pleases, is completely inconsistent with notions of constitutionally guaranteed rights. Now while this theory could never be
reality in Australia, nevertheless it was part of a heritage that helped
create an atmosphere that was antagonistic to the inclusion of a bill
of rights in the Federal Constitution. IS
15 A nineteenth century New South Wales politician, W. C. Wentworth, once
described Australian governments as 'indulgent nursing fathers'. See generally Encel
op. cit.
16 Bryce, Studies in History and Jurisprudence (2nd ed. 1903) 503.
17 In the Federal Constitution drafted by the 1891 Convention there was a provision
stating that Cabinet members 'may' be members of the legislature. In the 1897-1898
Convention the word 'may' was deleted and with great patriotic flourish the word
'must' inserted. See Cowen, 'A Comparison of the Constitutions of Australia and the
United States' (1955) 4 Buffalo Law Review 155, 159.
18 It could never be reality in Australia because all governments, State and
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Bearing these factors in mind, the rather curious collection of
guaranteed rights that are included in the Australian Constitution
can be seen in proper perspective. There are four of them. The first
limits the Commonwealth's power of eminent domain by requiring
that any such acquisition must be made upon 'just terms'.19 This
was of course a copying of the Fifth Amendment's requirement
that private property shall not be taken for public use without 'just
compensation'. It was however a crude copy and one that has
brought a host of legal difficulties."o The right to a trial by jury is
given in certain cases by section 80 of the Constitution which
provides:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury.21
This provision has been successfully euthanized by the High Court
and can easily be avoided. It does not operate if the procedure of
indictment is not used, or if the offence is committed in a Federal
territory.22 Freedom of religion is guaranteed by section 116 which
is the subject of this study. And finally comes the magnificent obscurity of section 117:
A subject of the Queen, resident in any State, shall not be subject in
any other State to any disability or discrimination which would not be
equally applicable to him if he were a subject of the Queen resident
in such other State.
Three comments might be made about this provision. First no one
is sure what it actually means."3 Secondly, whatever it means the
High Court has rendered it completely ineffective by holding that
it does not prohibit discrimination on the basis of domicile. 24 Thirdly,
during the Convention of 1897 it very nearly had the innocent seeming words 'due process of law' inserted in it! 25
Federal, only have the powers vested in them by their respective Constitutions.
Lord Bryce explained the absence of constitutionally guaranteed rights as follows:
'That these restrictions are comparatively few may be partly ascribed to that aversion
which the English everywhere show to this kind of safeguard against the misuse of
the legislative power. The omnipotence of the British Parliament seems to have
fostered the notion that all Parliaments ought to be free to do wrong as well as
right'. Bryce, op. cit. 495.
19 Commonwealth Constitution S. 51 (xxxi) vests the Commonwealth Parliament
with power over 'The acquisition of property on just terms from any State or person
for any purpose in respect of which the Parliament has power to make laws'.
20 For the anatomy of melancholy consult Wynes, Legislative, Executive and
Judicial Powers in Australia (3rd ed. 1962) 459 If.
21 Ct. D.S. Const., Amends. V and VI.
22 The King v. Bernasconi (1915) 19 C.L.R. 629; The King v. Archdall and Roskruge
(1928) 41 C.L.R. 128. 'As section 80 has been interpreted there is no difficulty in
avoiding trial by jury where it does apply': The Queen v. Kirby and Others, ex
parte the Boilermakers Society of Australia (1956) 94 C.L.R. 254, 290.
23 E.g. Wynes, op. cit. 138 ff.
24 Davies and Jones v. The State of Western Australia (1905) 2 C.L.R. 29.
25 Mende1son, 'Foreign Reactions to American Experience with Due Process of
Law' (1955) 41 Virginia Law Review 493; Cowen, op. cit. 174.
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This odd assortment is the sum total of the guaranteed rights in
the Australian Constitution. 26 With the exception of the 'just terms'
provision they have played an insignificant part in the development
of Australian Federalism. Since the adoption of the Constitution
there has been only one attempt to insert additional guarantees by
referendum. The defeated post-war reconstruction referendum of
1944 included a series of constitutional amendments which would
have guaranteed certain basic rights. 27
II
The Statute book shows amply that the Church of England and
Ireland after the constitution of a legislature, never was, nor was any
other religious body, an established Church. 28
The religious freedom clauses of the First Amendment to the
United States Constitution tersely state the result of a long and
protracted struggle to end religious oppression in the American
Colonies. They embody a conception of a church-state relationship
fought for by such men as Roger Williams, William Penn, James
Madison and Thomas J efferson.
Although one of the primary motives for the colonization of
America had been a desire to escape the religious persecutions of
Europe the early immigrants proved no more tolerant of dissident
beliefs than their erstwhile persecutors had been. During the greater
part of the seventeenth and eighteenth centuries almost all of the
American Colonies had either an established church, or legislative
policies which discriminated against certain proscribed religious
faiths. The Calvinist Congregationalist Church was established by
law in New England. Indeed for a long period Massachusetts and
Connecticut were essentially theocratic States. In Virginia, and the
two Carolinas, the Church of England was established. Catholics,
Quakers and Baptists were almost uniformly subjected to repressive
penal legislation. Other varieties of dissenting religious opinion were
in an only slightly better position as taxes had to be paid for the
support of the particular established church and the right to hold
civil office was strictly reserved to its members.29
26 I put on one side s. 92 which provides that trade, commerce and intercourse
among the States shall be 'absolutely free'. This section was strictly referable to
a Federal purpose and cannot be treated, at least in origin, as an American style
guarantee of rig-hts. However it may be argued that it has become one!
27 At the State level a 'Bill of Rights' was introduced into the Queensland
Parliament in December 1959 but was not proceeded with, due to the antagonism it
aroused. For a scathing attack on this measure see Anderson, 'The Queensland
Bill of Rights' (1960) 5 Australian Political Science Association News 1.
28 Feilding v. Houison (1908) 7 C.L.R. 393, 423 per Barton J.
29 For a detailed treatment of religious intolerance in the American colonies and
the subsequent movement towards freedom, see Stokes, Church and State in the
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The great struggle that heralded the end of this situation came
only a few short years before the Federal Constitution was dra,fted.
This occurred in Virginia where the combined efforts of Madison,
Taylor and Jefferson eventually resulted in the passing of the famous
Act for Establishing Religious Freedom. It provided:
That no man shall be compelled to frequent or support any religious
worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested or burthened in his body or goods, nor shall other
wise suffer on account of his religious opinions or belief; but that all
men shall be free to profess, and by argument to maintain their
opinion in matters of religion, and that the same shall in no wise
diminish, enlarge or affect their civil capacities. 3D
The influence of this historic milestone in man's quest for religious
freedom was felt throughout the whole of the country. Many of the
other Colonies took similar action. It was not surprising therefore that
when the first Congress came to draft a Bill of Rights that the principles of the Virginia Act were included. However it should not be
imagined that religious freedom was obtained overnight. The Bill
of Rights only operated as a limitation on the powers of the Federal
government and not the State governments. In at least five States
little attempt was made to abolish their established churches until
well into the nineteenth century. Indeed it was not until 1833 that the
last vestiges of establishment were swept away in Massachusetts.
The point to be gathered from this is that the religious clauses of
the First Amendment had a very meaningful content in eighteenth
century America. They were not mere statements of abstract principle, or the result of idle speculation, but the embodiment of a conception of freedom only recently recognized, and not yet completely
attained. Very different was the background to section 116 of the Australian Constitution.
Except for a short period when New South Wales was nothing
more than an English jail in the south seas there has never been
anything resembling an established church in Australia. 31 This was
made perfectly clear by a long line of decisions holding that none of
the English statutes, or Common Law, relating to the established
United States (1950); Blau, Cornerstones ot Religious Freedom in America (1949);
Greene, Religion and The State, the Making and Testing at an American Tradition
(1941).
30 Henning, Law ot Virginia (1875) xii, 85.
31 In the earliest days of the colony'S history from 1788 until 1828 the Church
of England held a favoured place because of its position as the prison chaplain,
as it were. The English government paid the salaries of the Anglican ministers to
attend to the prisoners' religious needs and to build churches. The convicts were
compelled to go to the Church of England services even though they may have belonged to other religious faiths. However, as the number of free settlers increased, this
preferred position quickly came to an end. Bergman, 'Religion in Australia' in
Australia (Grattan ed. 1947); Feilding v. Houison (1908) 7 C.L.R. 393, 402 ff. per
Griffith C.]., 423 ff. per Barton J.
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Anglican Church could apply in the Australian Colonies. The reception statute only continued English law in force, 'sO' far as the
same can be applied', and the basis of these holdings was that such
laws could not be applied because there was no established church."2
In 1861 Dickinson C.J. of the Supreme Court of New South Wales
stated the position in the following words:
The Christians in this colony, who were or would be members of
the Established Church in the United Kingdom, have never in any
statute been recognized as being members of a church established
here by law, any more than members of the Roman Catholic, Presbyterian, Independent, Unitarian or Jewish congregations have been .
. . The colonial Legislature ... has in no instance given precedence
to the Church of England over other collections of Christians. 33
Throughout the whole period of Australian history prior to the
adoption of the Federal Constitution there is little evidence of official
religious intolerance or discrimination. None of the penal and disabling legacies of the Reformation ever found their way into Australian
laW. 34 The only conflict that developed between the governments of
the Australian Colonies and the various churches was in regard to
education. In the period before 1870 public funds had been made
available to help church schools meet the cost of providing education.
This relationship proved to be unsatisfactory and beginning first in
Victoria, and shortly afterwards in Queensland, an attempt was
made to' terminate this financial aid to church schools. The catch
phrase of the day that education should be, 'free, secular and compulsory' met with such support that by 1890 no Australian government provided State aid to church schools.
In view of this mild background of church-State relationships in
Australia the inclusion of section 116 in the Federal Constitution
becomes all the more surprising. It did not reflect the culmination
of a long struggle for religious freedom as did its American counterpart. Nor did it fit into an elaborate statement of basic individual
liberties. The principles it embodied had never been contested in
Australia nor was there any apprehended danger that they might.
How then did it get into the ConstitutiO'n?
32 9 Geo. IV c. 83. s. 24. Such cases were: In the Will of Philip Purcell (1895) 21
V.L.R. 249; Re Hartnett (1907) 7 S.R. (N.S.W.) 463; Nelan v. Downes (1917) 23 C.L.R.
546. These three cases held that the Statute of Chantries (I Edw. VI c. 14) prohibit~ng gifts for the purpose of saying masses for the repose of the soul did not apply
III Australia. In Ex Parte Ryan (1855) 2 Legge 876 (Supreme Court of New South
Wales) it was held that the Church Holidays Act (5 & 6 Edw. VI c. 3) did not
apply. Numerous cases have established that no part of the ecclesiastical law of
England was ever in force in Australia: e.g. Re Bishop of Natal (1864) I I Moore
(N.S.) lIS (Privy Council); Ex Parte King (1861) 2 Legge 1307; Ex Parte Hay (1897)
18 N.S.W.L.R. (L.) 206.
33 Ex Parte King (1861) 2 Legge '307, 13'4.
• 34 For a brief. t.reatment of the gradual repeal of the repressive English legislatIOn see The BrItIsh Commonwealth (Keeton ed. 1955) i, 66 If.
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The draft Commonwealth Bill that emerged from the first Federal
Convention held in Sydney in 1890 contained a clause that provided:
A State shall not make any law prohibiting the free exercise of any
religion. 35
There is not a single reference to this clause in the printed Convention debates and, as Sir John Quick and'Sir Robert Garran have
pointed out, how it crept into the draft Bill is difficult to conjecture. a6
The interesting point about the clause is that it only limits the
powers of a State government and does not refer to the Commonwealth government. In this regard it was the precise opposite of
section 116 as it eventually appeared in the Constitution. My guess
is that the origin of this clause is to be found in the provisions of a
model constitution drafted by Andrew Inglis Clarke. Clarke was at
this time the Attorney General of Tasmania and the leader of that
Colony's delegation to the Convention. He was an ardent admirer of
American constitutional law. 37 Indeed it has been said of Clarke
that America was his spiritual home. 38
At any rate Clarke drafted a model Constitution which he circulated amongst the other delegates to the Convention. In it were the
following provisions:
The Federal Parliament shall not make any law for the establishment or support of any religion, or for the purpose of giving any
preferential recognition to any religion, or for prohibiting the free
exercise of any religion .... No province shall make any law prohibiting the free exercise of any religion. 39
It would be convenient if these clauses could be explained as part
of a plan to write an American style bill of rights into the Constitution. However the trouble with such an explanation is that these
two clauses are the only protection of individual freedom to be found
in Clarke's draft. Why he chose to include these, and not the other
Cl. 15, Ch. 5.
Quick and Garran, An Annotated Constitution of the Australian Commonwealth
(19 01 ) 953·
37 A contemporary wrote of him: 'No one in Australia, not even excepting Sir
Samuel Griffith, had Mr Clarke's knowledge of the constitutional history of the
United States . . . . That our Constitution so closely resembles that of the United
States is due in a very large degree to the influence of Mr A. I. Clarke.' Wise,
The Making of the Australian Commonwealth (1913) 75. Clarke's book, Studies in
Australian Constitutional Law (1902), reveals his lively awareness of many facets
of American constitutional law.
38 'His interests centred on the United States, a country to which in spirit he
belonged, whose Constitution he revered and whose great men he idolized.' Deakin,
The Federal Story (1944) 30. Clarke made three trips to the United States, in 1890,
in 1897'1898 and again in 1902-1903. He met and became friendly with Holmes J.
after whom he named one of his sons. See Reynolds, 'A. I. Clarke's American
Sympathies and his Influence on Australian Federation' (1958) 32 Australian Law
Journal 62.
39 Ss 46 and 81 respectively. The only published copy of Clarke's Constitution is
that printed as an appendix to Reynolds' article op. cit.
35
36
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First Amendment freedoms with which he was thoroughly conversant, is shrouded in mystery. What we do know however is why the
limitation on the Federal Parliament did not find its way into the
1891 draft Bill. In the course of debate in the 1898 Federal Convention, Edmund Barton explained why it was not adopted:
The reason why the prohibition in the first draft of the Bill which was
prepared in 1891 was confined to the States was that it could not, by
any possibility, be concluded that it was necessary to extend such a
provision to the Commonwealth, because no power was given to the
Commonwealth to deal with the matter of religion. 40
As Barton was a member of the drafting committee of the 1891
Convention his views may be taken as reliable. 41 The similarity between Clarke's clause, dealing with the free exercise of religion in a
'Province', and the clause in the draft Bill as it emerged from the
1891 Convention, makes it likely that his draft Constitution acted
as the precedent. 42 What is not clear, and what is indeed a matter of
the profoundest obscurity, is why the Convention ever included it in
the Bill. The 1891 Bill was not a very generous document in the
powers it gave to the Federal government because of very strong
'States' rights' feeling. Why this limitation on State sovereignty
was ever inserted must remain a mystery. However, to use the words
of Alice, the story soon became 'curious er and curiouser'.
For various reasons the federation movement in Australia lost its
momentum after 1890 and it was not until 1897 that it picked up
again. 43 A second Federal Convention met during 1897-1898 and
from it emerged what was eventually to become the Australian
Constitution Act. After a week of general debate a select committee
of the Convention framed a draft Constitution and all the following
deliberations took place using this draft as a basis. Clause 109 of the
draft Constitution reproduced the prohibition upon State interference
with the free exercise of religion that had appeared in the 1891 Bill.
The first time the clause was debated a Victorian delegate, Henry
Bournes Higgins, moved the following amendment to it:
Australian Federal Convention: Debates (3rd Sess. Melbourne 1898) i, 661.
Barton was knighted for the leading part he played in the Australian Federal
movement. He became the first Prime Minister of the new Commonwealth, a position from which he resigned in 1903 to become a Justice of the newly created
High Court of Australia. See Reynolds, Edmund Barton (1948).
42 Support for the view that the drafting committee of the 1891 Convention relied
a good deal on Clarke's constitution can be found in some remarks of Sir Samuel
Griffith, who is generally acknowledged to be the 1891 Bill's chief architect. He
said at a meeting of the Federal Council of Australasia: 'The Bill was not the work
of anyone man. It was the work of many men in consultation with one another. The
original groundwork was a draft submitted by the then Attorney General of Tasmania, Mr Clarke, which was taken as the basis of our labours.' Federal Council
of Australasia 1893, Proceedings and Debates 7.
43 For a history of the Federal movement in Australia see Quick and Garran,
op. cit. 79 If.
40
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A state shall not, nor shall the Commonwealth, make any law prohibiting the free exercise of any religion, or for the establishing of
any religion, or imposing any religious observance. 44
In support of this amendment Riggins developed a very strange
argument. Re pointed out that it had been decided to insert some
reference to the existence of God in the Preamble to the Constitution. The phrase was that the people of Australia, humbly relying on
the blessing of Almighty God, had agreed to unite in a federation.
This, Riggins claimed, would inferentially give the Commonwealth
government power to regulate religion. To support this statement
he referred to a decision of the Supreme Court of the United States
in I892 which, he claimed, held that America was a Christian
country. Riggins alleged that on the basis of this decision Congress
had legislated to close the famous Columbean Exhibition on Sundays.
If a mere statement by the Supreme Court could give Congress this
power how very much clearer it was in the Australian Constitution
where, unlike that of the United States, God was expressly mentioned.
Therefore it was necessary, in his view, to make it quite clear that
the Commonwealth Government had no such power. This could be
done by adopting the protective clauses of the First Amendment
together with an additional restraint on laws imposing religious observance in order to cover the I892 decision. 45
Although not identified Riggins clearly had in mind the Supreme
Court's decision in The Church of the Holy Trinity v. United States. 46
That case involved the interpretation of a Federal statute making it
an offence to prepay the importation of any alien into the United
States to perform any work. A church had been prosecuted for paying the passage of a minister from England. It seems the purpose of
the statute was to prevent the importation of cheap manual labour
into the country at a time of great unemployment and economic
distress. Unfortunately the language of the measure was so all embracing as to include the clergyman in question. Brewer J. delivering
the opinion of the Court held, by dint of a heroic interpretation of
the statute, that the clergyman did not really come within its terms
at all. One of the many reasons given for this conclusion was that
an anti-religious intention could not be imputed to Congress. The
learned judge gathered together an odd assortment of historical
44 Australian Federal Convention: Debates (3rd Sess. Melbourne IS9S) i, 654.
Higgins was a leading Victorian barrister who later became a member of the High
Court of Australia and President of the Federal Arbitration Court. See Palmer,
Henry Bournes Higgins: A Memoir (1931). He made two visits to the United States,
in 1914 and in 1924, where he became friendly with the now Mr Justice Frankfurter:
Dixon, 'Mr Justice Frankfurter: A Tribute From Australia' (1957) 67 Yale Law
Journal 179, ISO.
45 Australian Federal Convention: Debates (3rd Sess. Melbourne IS9S) i, 654-656.
46 (1892) 143 U.S. 457.
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documents ranging from the commission given to Christopher Col umbus by Ferdinand and Isabella, to various old colonial charters, and
distilled from them a:
... universal language ... having one meaning; they affirm and reaffirm that this is a religious nation ... they are organic utterances;
they speak the voice of the entire peopleY
Whatever the merit of this rather suspicious interpretive technique
it certainly affords no foundation whatever for Higgins' argument
that the Supreme Court by suggesting America to be a Christian
country implied an extension to constitutional power. This is a
fantastic construction of the case. Even more fantastic is Higgins'
reference to Congress's alleged action as a result of this case. He
claimed that because of the power given Congress by the decision
legislation was passed closing the Columbean Exhibition on a Sunday.
Now it is true that six months after the Holy Trinity decision was
handed down, Congress passed legislation appropriating money to
pay for the Exhibition to be held in Chicago, celebrating the 400th
anniversary of the discovery of America by Columbus. In that legislation was the following provision:
All appropriations made to the Columbean Exhibition are made upon
the condition that the said Exhibition shall not be opened to the
public on the first day of the week, commonly called Sunday.48
This provision was never tested in the courts and if it had been its
validity seems clear.49 There is absolutely no evidence to link it to
the Holy Trinity decision which can have only the flimsiest reference
to the constitutional issues that might be involved in it.
It was upon this shaky basis that section I 16 of the Australian
Constitution was built. However for the moment Higgins was defeated and clause 109 was deleted from the draft. Its reference to the
States was found obnoxious to almost all the members of the Convention. They regarded it as being unnecessary because religious
freedom had always been respected in the colonies and, at any rate,
it was an unwarranted invasion on the legislative powers of the
future States. As far as it referred to the Commonwealth it was rejected as being 'an anachronism' applying 'to a state of things that can
never arise in these days'.50 Higgins' constitutional argument was
scoffed at and the whole clause struck out.51
47Jbid. 470. Author's italics. It should be noted that Riggins claimed that the
Court had held that it was a Christian country. A 'religious country' was the phrase
used by the Court, and it was the flimsiest piece of obiter imaginable!
48 27 Stat. Ch. 381 (1892) s. 4.
49 Infra p. 86ft
50 Dr Cockburn (South Australia): Australian Federal Convention: Debates (3rd
Sess. Melbourne 1898) i, 660. The South Australian Attorney General Sir Josiah
Symon, said: 'We are living in a very advanced age, not in mediaeval times, and
there is no necessity for a provision of this kind.' Ibid. 659.
51 The leader of the Convention, Sir Edmund Barton, said: 'I can scarcely con-
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Not to be so easily defeated Higgins moved to introduce the following clause into the Constitution at a later stage of the Convention:
The Commonwealth shall not make any law prohibiting the free exercise of any religion, or for the establishment of any religion, or imposing any religious observance, and no religious test shall be required
as a qualIfication for any office or position of public trust under the
Commonwealth. 52
It will be noticed that this clause quite unlike the earlier one only
applies to the Commonwealth and, further, that it adds a prohibition on religious tests for Federal office. Higgins repeated his fears
about the word 'God' in the Preamble and again referred to the position as he understood it in the United States. The foundation of his
argument was that unless such a provision was inserted the Commonwealth government could prescribe rules of Sunday observance which
would apply all over Australia. 53 The fear such an argument provoked
in the minds of many delegates was enough to have it passed over the
criticism of the many able lawyers in the Convention. Almost none
of the debate centred around the free exercise or establishment
clauses but the whole provision was taken as being necessary to
prevent the 'insidious threat' that the Commonwealth might have
power to pass Sunday observance legislation. 54
By a vote of 25 to 16 this clause became section 116 of the Australian Constitution. It was an historical accident based on an incredible legal analysis by a man who was later to become a justice
of the High Court of Australia. 55 During the debate at the Convention
the only part of the section that could conceivably have been relevant
to the Australian situation-the prohibition on religious tests for
ceive it possible that the insertion of such a provision in the preamble acknowledging the existence of the power of the Deity could ever induce the High Court or
the Court of Appeal in the Old Country to hold that it imported a power to make
laws regarding religion.' Ibid, 660-661.
52 Ibid. 1769.
53 'Each State at present has the power to impose religious laws. I want to leave
that power with the States; I will not disturb that power; but I object to giving
to the Federation of Australia a tyrannous and overriding power over the whole
people of Australia as to what day they will observe for religious reasons and what
day they will not observe for that purpose.' Ibid. 1735.
54 In the course of some remarks designed to stir up this fear Bernhardt Wise
pictured for the Victorian delegates (who came from an anti-Sunday-newspaper
State) what might happen: 'Mr Wise: Suppose the Federal Parliament passes a law
allowing Sunday newspapers, would the Victorians like that?
Mr Isaacs: They would have no jurisdiction.
Mr Wise : Yes, they would if this is struck out.
Mr Isaacs: Under what clause?
Mr Wise: Under the same clause as in America.'
Ibid. 1775. Where the power to regulate Sunday newspapers is in the United States
Constitution Mr Wise did not venture to say!
55 The one thing that can be said in Higgins' defence is that he was using this as
a weapon with which to get the words 'humbly relying on the blessings of Almighty
God' taken out of the preamble. This is borne out by the fact that a petition of
38,000 signatories from his home State, Victoria, was presented to the Convention,
urging that the words be struck out.
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Federal office-was endeavoured to be detached from the rest, but
to no avail. Section I 16 now takes its uneasy place in Chapter V of
the Constitution, entitled 'The States', although it is a prohibition
directed to the Commonwealth. Its very position in the Constitution
thus points to its incongruousness.
The only other guarantee of religious freedom in Australian constitutional instruments is to be found in the Tasmanian Constitution Act of 1934. It provides:
46. (I) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every
citizen.
(2) No person shall be subject to any disability or be required to
take an oath on account of his religion or religIOUS beliefs and no
religious test shall be imposed in respect of the appointment to or
holding of any public office. 56
This provision has almost as curious a history as section I 16, but it
will not be traced here. 57
PART II:
THE FREE EXERCISE CLAUSE
The Commonwealth shall not make any law ... prohibiting the free
exercise of any religion.
Congress shall make no law.
[that is, of religion].
. prohibiting the free exercise thereof
I
Both the American and Australian provlSlons proscribe the
making of laws which would prohibit the free exercise of religion.
The only difference in the verbal formulation of that conception is the insertion of the word 'any' before 'religion' in the
Australian version. Some writers have argued that this change has
resulted in significant legal differences between the two provisions.
But in order to appreciate that argument it must be related to the
broader inquiry of what is meant by the term 'religion'. Such an
inquiry is of fundamental significance because both provisions revolve about its meaning.
The first, and obvious, point to be made is that 'religion' is one
of those words which convey an air of elusive certainty. It has seemConstitution Act 1934 (Tas.).
The section crept into the Tasmanian Constitution without debate during a
general consolidation of legislation in 1934. From a marginal note in the text it seems
that it purports to state the effect of the British Roman Catholic Act 1829, which
was extended to the colony by 10 Geo. IV c. 5 (1830). However it is a matter of
the greatest doubt whether that act could ever have applied in the colony in view
of there being no established church. See Gleeson v. Phelan (1914) IS S.R. (N.S.W.)
30. It may further be noted that even if it did it is doubtful whether this section
adequately states its effect.
56
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ingly a sharp connotation which camouflages a complete inner
vagueness. Many people, as a result, tend to be very dogmatic about
any definition they give it. Of course another reason for this dogmatism is the natural inclination of most people to inject their own
beliefs and prejudices into the process of definition. 'Religion' is a
highly emotive word and this will be a serious obstacle in any attempt to discover its meaning. Some judges and legal writers have
suggested certain limitations that they consider ought to be placed
on the meaning of the word. It may be a useful approach to the
problem if we begin by considering these limitations.
A.
Theistic
Perhaps the classic definition of religion in American constitutionallaw was that given by Field J. in Davis v. Beason. 58 There he
stated that:
The term "religion" has reference to one's views of his relations to his
Creator, and to the obligations they impose of reverence for his being
and character, and of obedience to his will. 59
Many courts, both Federal and State, have cited this passage with
approvapo Other Supreme Court Justices have formulated the same
fundamental idea in slightly different ways. For example, Hughes J.
once said:
The essence of religion is belief in a relation to God involving duties
superior to those arising from any human relation.... One cannot
speak of religious liberty, with proper appreciation of its essential and
historic significance, without assuming the existence of a belief in a
supreme allegiance to the will of God. 6I
It is apparent that both these formulations are founded upon a
Judaeo-Christian conception of religion. The references to 'Creator',
'God', and 'being', all convey this flavour. However many systems
of belief, ordinarily regarded as being religious, completely reject
such conceptions. The great faiths founded by Buddha and Confucius, for example, are not concerned with the idea of a personal
God of any kind. 62 Similarly the many humanistic and ethical faiths,
(1889) 133 U.S. 333.
Ibid. 34 2 •
60 E.g. George v. United States (1952) 196 F. 2d 445, 451; Berman v. United States
(1946) 156 F. 2d 377> Cert. denied (~946) 329 U.S. 795; In re Opinion of the Justices
(1941) 34 N.E. 2d 431; People v. Deutsche Evangelisch Lutherische (1911) 94 N.E. 162.
61 United States v. MacIntosh (1931) 283 U.S. 605, 633. Dissenting opinion.
62 'We must always remember that one of the chief religions of the world, Buddhism, has risen to great moral and intellectual heights without using the concept
of God at all.' Murray, Five Stages ot Greek Religion (1930) 16. On theistic and
non-theistic religions generally, see Burtt, Man Seeks the Divine (1958); Archer,
Faiths Men Live By (2nd ed. 1942) 120-138, 254-313; Encyclopaedia Britannica
(1957) iv, 325-327.
58
59
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that have seen such a rapid growth in the twentieth century, reject
the idea. If the Field-Hughes view were to control the meaning of
religion in the First Amendment then all of the non-theistic faiths
would lack constitutional protection. Such a result would seem to be
quite fantastic. 63 Freedom of religion would be freedom for the
Judaeo-Christian religions and for no others.
This question has never been decided authoritatively by the
Supreme Court, but it is suggested that the Field-Hughes view will
be rejected. 64 To read a theistic limitation into the meaning of religion would be to ridicule the very ideal which the granted freedom
endeavours to attain. It must mean freedom for all religions and not
only for some. 6S The word must have a flexible content which can
vary from individual to individual. As Latham C.J. has said:
Indeed, it is not an exaggeration to say that each person chooses the
content of his own religion. It is not for a court, upon some a priori
basis, to disqualify certain beliefs as incapable of being religious in
character. 66
B.
Reasonable
There is a very great temptation for a judge when confronted by
religious views he cannot understand, or considers ridiculous, to say
that they are not religions at all. In this way a limitation can be
easily read into the religious freedom guarantee requiring a belief
to be reasonable. It is a danger that is difficult to avoid, but one that
must be guarded against. However on some occasions courts in both
Australia and the United States have been oblivious to the dangers
inherent in such an approach.
The decision of the High Court of Australia in Krygger v. Williams 67 is a good example. In that case the question was whether
compulsory military training could be required of a religious objector in peace time. The Chief Justice, Sir Samuel Griffith, was ob63 This indeed has been suggested in one decision: 'It would be quite ridiculous
to argue that the use of the word "religion" [in section I of the First Amendment]
could have been understood by the authors of this part of our national charter ...
as meaning to be inclusive of morals or of devotion to human welfare ... without
the concept of deity.' Berman v. United States (1946) 156 F. 2d 377, 380.
64 Some support for this view can be found in Black }.'s opinion for the Court
in Torcaso v. Watkins (1961) 367 U.S. 488, 495-496.
65 This view finds support in recent decisions of lower United States Federal and
State courts in cases concerning the scope of tax exemptions to 'religious societies'.
It has been held that the non·theistic faiths are 'religious' and therefore can claim
the exemption. The argument denying the exemption was pitched squarely on the
Field-Hughes view. See Washington Ethical Society v. District of Columbia (1957)
249 F. 2d 127; Fellowship of Humanity v. County of Almeida (1957) 315 P. 2d 394;
Note, 'Belief in a Supreme Being Not Required For Religious Tax Exemption'
(1958) 58 Columbia Law Review 417.
66 Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943)
67 C.L.R. 11 6, 124.
67 (1912) 15 C.L.R. 366.
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viously outraged at the suggestion that section 116 supported the
view that training could not be required of such an objector. He
pointed out that the relevant legislation allowed religious objectors
to be assigned to non-combat duties, such as first aid. This he said
enabled the saving, rather than the taking, of life. To him any person
who suggested that his religion forbade the saving of life was being
ridiculous in the extreme. In an opinion distinguished more by its
emotion, than by its logic he said:
All our laws, I think, where there is any ground for thinking that real
conscientious objection may exist, make careful provisions for the protection of people's consciences, as does this act. But to base a refusal
to be trained in non-combatant duties upon conscientious grounds is
absurd. G8
I
The clear implicationl of this passage is that Griffith C.J. was passing
judgment on the merit and honesty of the defendant's beliefs. Barton
J. shared these views. He said:
I
As to the constitutidnal objection, the Defence Act is not a law prohibiting the free ex~rcise of the appellant's religion, nor is there any
attempt to show anything so absurd as that the appellant could not
exercise his religion freely if he did the necessary drill. I think that
the objection is as tJhin as anything of the kind that has come before
us. G9
I
However, in fact the only testimony before the Court showed quite
clearly that the appe~lant held to the beliefs that both Griffith C.J.
and Barton J. considlred 'absurd'.70 Of course it does not follow that
if the Court had accepted the appellant's beliefs as being religious,
automatically section I 16 would have enabled him to avoid military
training. That .is a 9.~estion quite different, and one that is irrelevant
to our present mqmrrIn a similar fashion the United States Supreme Court in Mormon
Church v. The United States 71 denied that a Mormon belief in
polygamy was capable of being religious. Bradley J. commented:
One pretence for this obstinate course is, that their belief in the practice of polygamy, or in the right to indulge in it, is a religious belief
and therefore under the constitutional guarantee of religious freedom.
This is altogether a sophisticated plea . . . . No doubt the Thugs of
India imagined that their belief in the right of assassination was a
religious belief; but their thinking so did not make it SO.72
Ibid. 370-371. Author's italics.
69 Ibid. 372. Author's italics.
at drill is against my conscience and the word of God . . . . I put
military training on the same footing as gambling. To me it is as much a sin in
the sight of God as gambling, racing, or any other sin . . . . I have been thoroughly
taught, to go forth and do the same works as Jesus did-destroy the works of
the devil, not with armies and nayies, but with the power of the Word.' Ibid. 367.
71 (1889) 136 U.S. I.
72 Ibid. 49. In Davis v. Beason Field J. said much the same thing: 'Few crimes
are more pernicious to the best interests of society and receive more general or
G8
70 'Attendance
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It is suggested that, despite these remarks of Bradley J., thinking
did make it so. One cannot on the basis of naked religious prejudice
disqualify certain beliefs as inherently incapable of being religious.
All that the passage tells us is that Bradley J. did not consider a
belief in polygamy to be religious. But that is irrelevant. The question
is not what Bradley J. considered, but what the Mormons believed.
Their belief may be unreasonable to another person. That again is
irrelevant. The First Amendment and section I 16 do not guarantee
the free exercise of any reasonable religion but of any religion that
is in fact believed. It would be a rather cramped conception if a
requirement of reasonability were injected into it.
This view has been adopted by the United States Supreme Court
in United States v. Ballard.13 That case involved a Federal mail
fraud prosecution of the founders and leaders of a religious cult
known as the 'I am'. The cult, which entertained some quite exotic
beliefs, had been using the mails to solicit funds for its activities. 74
In order to make out the argument of fraud the government sought
to rely on the ridiculous character of the accused's beliefs. It further
argued that the jury could find as a fact whether the beliefs were
true or false. The trial judge refused to accept these arguments. He
decided that the only question for the jury was the good faith with
which the beliefs were held without regard for their truth or falsity.
On appeal the Supreme Court affirmed this decision. Douglas J.
speaking for the majority, stressed that religion:
embraces the right to maintain theories of life and death and of the
hereafter which are rank heresy to followers of the orthodox faiths.
Heresy trials are foreign to our Constitution. Men may believe what
they cannot prove. They may not be put to the proof of their religious
doctrines or beliefs. Religious experiences which are as real as life to
some may be inconmprehensible to others. Yet the fact that they may
be beyond the ken of mortals does not mean that they can be made
suspect before the law!5
C.
Organized
Two Australian legal commentators have made the startling suggestion that the addition of the word 'any' before 'religion' in section
I 16 has drastically limited its meaning. The late Professor CumbraeStewart claimed that:
more deserved punishment. To extend exemption from punishment of such a crime
would be to shock the moral judgment of the community. To call their advocacy a
tenet Of religion is to offend the common sense of mankind! (1889) 133 U.S. 333,
341. Author's italics.
13 (1944) 322 U.S. 78.
14 The beliefs of the cult are set out in Fellman, The Limits of Freedom (1959)
14 fI.
15 United States v. Ballard (1944) 322 U.S. 78, 86.
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"any religion" is, however, something more definite than "religion"
simpliciter. It is any organized system of religion. 76
He also contended that decisions of the United States Supreme Court
are of little or no value in defining what the phrase 'any religion'
means. 77 These views could be treated as aberrational were it not
for the fact that they have been repeated by Dr Anstey Wynes in
his leading text-book on Australian constitutional law. 78 If such a
limitation is read into section 116 it would have the effect of extending freedom to only organized religions. 79 What is clear though is that
it would exclude any purely individual religious belief.80 Such a
result would be grotesque. It would mean that section 116 was some
kind of bad joke.
With all due respect to Professor Cumbrae-Stewart and to Dr
Wynes such an interpretation of section 116 completely lacks any
foundation. I would have thought that, if anything, the word 'any'
individualized rather than collectivized the concept of religion. It
is not only what is regarded as 'religion' in general which is protected
but it is 'any religion'. The clear meaning of the phrase is that a
silent 'whatsoever' is to be read in, making it 'any religion whatsoever'. 'Any' is a word of emphasis in section I I6, not one of qualification. An attempt to cripple section I I6 in the manner suggested can
be explained only on the basis of an attempt to read it out of the
Constitution. It may well be a unique provision, and one that seems
out of step with the Australian legal tradition, but nevertheless it
ought not to be distorted by pedantic casuistry.
The analysis so far has been in negative terms. It has been suggested that religion need not be theistic, reasonable, or organized.
However the question still remains as to what it is. In what way,
for example, does it differ from politics or from philosophy? It is
clear that the First Amendment and section I I6 do not guarantee
the free exercise of political and philosophical views which are not religious. 81 And yet it is far from clear what the lines of distinction
between them really are. It would be comforting to say that the
meaning of religion defies capture in a verbal formula. In a sense it
does. But unfortunately a court cannot escape by that route. It may
be possible for the Supreme Court to take it. This is so because of
the many other complementary guarantees of personal freedom contained in the First Amendment and elsewhere. The rights of free
76 Cumbrae-Stewart, 'Section II6 of the Constitution' (1946) 20 Australian Law
Journal 207.
77 Ibid. 208.
78 Wynes, op. cit. 173, 176.
79 Would, for example, the beliefs of the aboriginal tribes of Australia and New
Guinea be 'organized'? Or does it mean 'organized' in the sense of church?
80 And yet what if an individual's beliefs are an amalgam of all sorts of 'organized'
religious systems? Or must one be a member of one organization?
81 I only here refer of course to the religious freedom aspect of the First Amendment.
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speech and of a free press for example would protect the expression
of political and philosophical views. It matters little therefore into
which exact category of First Amendment freedoms an expression
comes. In Australia it is different. There is only one freedom guaranteed by the Constitution and that is freedom of religion. The problem
of meaning therefore is crucial in a way that it is not for the United
States.
While recognizing the dogmatism and difficulty which must attend any attempt at definition, it is suggested that there is one characteristic that distinguishes a religious belief from all others. Such a
belief involves man's relationship with a force greater than himself.
It involves a striving to understand the meaning of life by reference
to some irrational cohesive power. Irrational, because man's reason
cannot comprehend it. And yet its authority is acknowledged because man feels he must. It is a recognition that man is not an end
in himself, but that he exists only as part of some ultimate value.
Judge Augustus Hand has put it far more eloquently:
Religious belief arises from a sense of the inadequacy of reason as a
means of relating the individual to his universe-a sense common to
men in the most primitive and in the most highly civilized societies.
It accepts the aid of logic but refuses to be limited by it. It is a
belief finding expression in a conscience which categorically requires
the believer to disregard elementary self-interest, and to accept martyrdom in preference to transgressing its tenets. 82
Any system of belief which does not have these characteristics ought
not to be treated as religion. It is realized that such a limitation is
arbitrary but then so are all attempts at definition. A line must be
drawn somewhere however, and this seems as reasonable a place as
any.
Of course this does not mean that other beliefs may not enjoy
the protection of section I 16 or the First Amendment. The right, for
example, to follow no religion, as will be seen later, is guaranteed.
But it is not guaranteed because non-religion is a religion. Black
cannot be white. It is guaranteed because freedom of religion also
embraces freedom from religion. The definition only becomes important when a religious belief is relied upon as a constitutional
defence to a prosecution of some kind. Then a court would be
squarely faced with the question of whether a given belief is religious
or not.
Jeremy Bentham once wrote that to give religious belief precedence over the legislative authority of a state would be to arm every
fanatic against all governmental control. He suggested that this was
so because:
82
United States v. Kauten (1943) 133 F. zd 703, 708.
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In the immense variety of ideas respecting natural and Divine law,
cannot some reason be found for resisting all human laws? Is there
a single state which can maintain itself a day, if each individual
holds himself bound in conscience to resist the laws, whenever they
are not conformed to his particular ideas of natural or Divine law?83
Bentham's two rather rhetorical questions tend to raise a doubt as to
whether the First Amendment and section 116 really mean what they
seem to' say. 'No law shall be passed prohibiting the free exercise O'f
any religion'. If every individual could exercise his religion completely free of all legal impediment then anarchy would be with us.
Rape, human sacrifice, suicide, incest, theft and arson, would all
become legal if sanctioned by religious belief. One wO'uld not need
the assistance O'f an oracle in order to foresee a staggering increase
in the number and variety of commands prO'ceeding from polygot
gods I Obviously the freedom cannO't be absolute. It has to be far less
than that. And yet exactly how far less is the problem.
In his famous Letter Concerning Toleration John Locke has left
us a statement of what he cO'nsidered to be the proper limits of religious freedom. His conception of the measure of that freedom is
important because it has become the philosophical foundation for
almO'st all of the decisions of the United States Supreme Court on
the question. 84 Locke suggested that:
Whatsoever is lawful in the commonwealth cannot be prohibited by
the ma~strate in the church. Whatsoever is permitted unto any of
his subjects for their ordinary use, neither can nor ought td be forbidden by him to any sect of people for their religious uses. 85 '
This seems to have a sound commonsense ring about it. I~ a man
can normally drink wine, kill animals, wear curious clothes, then
he can do the same things in the exercise of his religion. Or to' put
it another way there can be no punishment of an act merelyibecause
it is dO'ne in the exercise of a religion. On the other hand! if a religious belief, for example cO'mpels a man to kill his second born
child then he can be punished because:
These things are not lawful in the ordinary course of life, nor in any
private hO'use; and therefore neither are they so in the worship of God,
O'r in any religious meeting.... Only it is to be observed that, in this
case, the law IS not made about a religious but a political matter. 8S
The unsolved dilemma in this passage is of course who is tp decide
whether a law is abO'ut a religious or a political matter. Locl~e's tacit
answer is that it is for the political association to decide this 9uestion.
But surely the problem is not as simple as this. Freedom of: religion
83 Bentham, Theory of Legislation (2nd ed. 1871) 86.
84 See Horn, Groups and the Constitution (1958) 24.
85
86
Locke, A Letter Concerning Toleration (Gough ed. 1958) 143Ibid. 144.
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would be utterly dependent upon governmental whim so long as
legislation was framed in general terms and avoided discrimination
against any, or all, religion. However the Supreme Court entertained
the opinion that the problem was almost as simple as this in the
famous Mormon Church decisions.
In the latter half of the nineteenth century the United States Congress conducted a full scale persecution of the Mormon Church because of its advocacy of polygamy as a religious duty. Legislation was
passed making the practice of polygamy a crime in the territories,87
refusing the Mormons the right to vote, and formally dissolving
the church and taking over all its funds. The validity of this legislation was unsuccessfully attacked in the Supreme Court.
The first case, Reynolds v. The United States, presented the question
of whether the statute making polygamy a crime could be validly
applied to a Mormon without violating the First Amendment. 88
Waite C.J. gave the judgment of the Court in an opinion studded
with question-begging, generality and rhetorical fervour. The heart
of his reasoning ran thus:
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may WIth practices. . .. Can a man excuse his practices ... because of his religious
belief? To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself. Government could exist
only in name under such circumstances. 89
Waite C.J. himself spoke of his opinion in this case as a sermon,
and it certainly reads like one. 90 But that is not our present interest.
It is as an interpretation of the meaning of religious freedom that
it concerns us here. The distinction which Waite C.J. drew between
'belief' and 'action' has come to be regarded by the American courts
as a sort of Open Sesame. Its mere invocation has often been regarded
as unlocking the meaning of the First Amendment in this area. What
Waite C.}. is saying in this passage is that only freedom of belief is
absolute. When belief is translated into action however it automatically becomes subject to governmental regulation. In one of the later
Mormon Church cases Field J. restated this distinction. He said that:
87 The Mormons had fled to Utah which was then a Federal territory. For a
study of the Mormon persecution see Brodie, No Man Knows My History: The Life
of Joseph Smith (1945); Shook, The True Origin Of Mormon Polygamy (1914).
88 Reynolds, the defendant in this case, was Brigham Young's private secretary.
After Joseph Smith was lynched in Illinois, Young became the leader of the
Church.
89 (1878) 98 U.S. 146, 166-167.
90 'I send you enclosed my sermon on the religion of polygamy. . . . I hope you
will not find it poisoned with heterodoxy.' Extract from a letter sent by Waite to the
Rev. D. Walbridge, 20 January 1879. Trimble, Chief Justice Waite: Defender of
Public Interest (1938) 244.
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it was never intended or supposed that the [First] Amendment could
be invoked as a protection against legislation for the punishment of
acts inimical to the peace, good order and morals of society.... However free the exercise of religion may be, it must be subordinate to
the criminal laws of the country passed with reference to actions
regarded by general consent as properly the subjects of punitive
legislation. 91
Fifty years later in Cantwell v. Connecticut Roberts ]. drew precisely the same distinction in language that has become classic.92
The idea thus seems to be deeply embedded in American law. Not
irretrievably calcified, but nevertheless embedded. It is an almost complete adoption of John Locke's thesis. 93
There are very many difficulties in the easy acceptance of this
belief-action dichotomy. In the first place it seems to overlook the
wording of section 116 and the First Amendment. Those provisions
do not state that freedom of religious belief is guaranteed. They
direct that the 'free exercise' of religion is not to be prohibited. The
word 'exercise' envisages that actions will be taken as a result of religious belief. And it is those actions which are guaranteed protection. 94 This was pointed out by Latham C.]. in the leading Australian
decision in this area. He stated that:
the section [116] refers in express terms to the exercise of religion, and
therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus
the section goes far beyond protecting liberty of opinion. It protects
also acts done in pursuance of religious belief as part of religion. 95
In so far as the belief-action dichotomy rejects the clear meaning of
the word 'exercise' it is misleading. The protection of religion does
not end at the church door, or with the transition of thought to
action. Indeed if that was all section 116 and the First Amendment
meant they would be almost without meaning. The oldest formula
for persecution never had prejudice for an ingredient. It is always
91 Davis v. Beason (1889) 133 V.S. 333, 342-343. Author's italics.
92 'The Amendment embraces two concepts-freedom to believe and freedom to
act. The first is absolute but, in the nature of things, the second cannot be. Conduct
remains subject to regulation for the protection of society.' (1940) 310 V.S. 296,
303. This passage has been cited in countless Federal and State court opinions.
93 Locke entered the Supreme Court via Thomas Jefferson. In formulating the
distinction between action and belief, Waite C.J. put great reliance on Jefferson's
Bill Establishing Freedom and his Danbury Baptist letter. In the Danbury letter
Jefferson said: 'the legislative powers of the government reach actions only and
not opinions.' And in the famous Bill he stated: 'it is time enough for the rightful
purposes of civil government . . . to interfere when principles break out into overt
acts against peace and good order.' Reynolds v. United States (1878) 98 V.S. 145,
162- 163.
94 One writer has sarcastically stated: 'it is unthinkable that the framers of the
First Amendment intended to safeguard only cloistered contemplatives.' Antieu,
'The Limitation of Religious Liberty' (1949) 18 Fordham Law Review 221, 227.
95 Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943)
67 C.L.R. 1I6, 124.
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'but they violated the laws'.96 Cotton Mather, for example, justified
puritan persecution of dissenters by saying:
To persecute is to punish an innocent, but a heretic is a culpable and
damnable person. 97
Whilst the belief-action dichotomy is mischievous in that it leaves
the regulation of all action to legislative fiat it nevertheless contains
an element of truth. Actions taken as a result of religious belief can
never be given as absolute a freedom as can the belief itself. Bentham,
as we have already seen, has told us why this must be so. Where the
dichotomy produces inaccuracy however is in the suggestion it carries
that any societal interest at all justifies the regulation of action
motivated by religious belief.98 This suggestion has been acted upon
by almost every court in the United States. Only in a very few cases
has the defence of religious freedom ever succeeded. 99 This is in
spite of the fact that the defence has been made in hundreds of
cases in both Federal and State courts. The defence is usually disposed of with a terse reference to one of the formulations of the
belief-action dichotomy and a statement that some societal interest
justifies the regulation. To catalogue all these cases would be as
wearisome as it would be pointless. However some examples might
be useful.
Legislation has been upheld which prohibits the use of rattle snakes
in church services/ provides for fluoridation of the water supply,2
compels vaccination,3 penalizes parental failure to obtain medical
attention for their children,4 limits the consumption of sacramental
wine,5 and forbids commercial fortune telling by members of the
96 Myers,
A History of Bigotry in the United States (1941) 6.
The Bloudy Tenet Washed and' Made' White (1658) clxv.
98 Field J. has said that any 'acts inimical to the peace, good order and morals
of society' can be regulated. Davis v. Beason (1889) 133 V.S. 333, 342. This is vague
enough to cover almost anything.
99 In fact only two important decisions have ever upheld the defence. These are
West Virginia State Board of Education v. Barnette (1942) 319 V.S. 624; and Murdock
v. Pennsylvania (1942) 319 V.S. 105. I put at one side the so-called Jehovah's Witness
cases which run from Lovell v. City of Griffen (1938) 303 V.S. 444 to Fowler v.
Rhode Island (1953) 345 V.S. 67. In these cases all of the First Amendment freedoms
get quite mixed up and so detract from their value here. As well as this they are
concerned with trivia. No serious question exists as to the power of municipalities
to regulate Witnesses' activities if the regulation is at all reasonable. Professor
Freund's comment on these cases is revealing. He sarcastically suggests that the
Supreme Court has merely acted as a 'legislative drafting bureau for municipal
authorities': On Understanding the Supreme Court (1950) 23.
1 E.g. Harden v. State (1948) 216 S.W. 2d 708; Lawson v. The Commonwealth
(1942) 164 S.W. 2d 972; Hill v. State (1956) 88 So. 2d 880.
2 See cases collected in Nichols, 'Freedom of Religion and the Water Supply'
(1959) 32 Southern California Law Review 158.
3 Jacobson v. Massachusetts (1905) 197 V.S. II; Zucht v. King (1922) 260 V.S. 174.
4 See Larson, 'Child Neglect and Religious Freedom' (1954) Chicago-Kent Law
Review. 283; a note 'Medical Aid for Children Without Parental Consent' (1957) 13
Wyommg Law Journal 88.
5 Shapiro v. Lyle (1929) 30 F. 2d 971. This was during the prohibition era.
97
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Spiritualist Church. 6 Similarly admission requirements to universities
and to the Bar which violate religious beliefs have been held valid. 7
On the other hand there have been only two important cases in
which the defence of religious freedom has been upheld. In one,
Murdock v. Pennsylvania,s the Supreme Court held that a non-discriminatory licence tax upon canvassers could not be exacted from
a Jehovah's Witness engaged in the door to door sale of books. In
the other the Court invalidated a compulsory requirement that all
school children participate in a flag salute ceremony.9 It held that
Jehovah's Witness children could obey the command of Exodus
rather than a local school board. 10 However both these decisions were
not placed directly on the religious freedom guarantee of the First
Amendment. The Murdock case purported to state a rule of general
application to all of the First Amendment freedoms, and not simply
to the freedom of religion. Similarly the opinion of J ackson J. in
the Flag Salute case is not directly predicated upon freedom of religion. Indeed it is couched in terms of such majestic generality that
it is hard to know on what constitutional provision it is based. 11 This
fact makes it difficult to assess the value that these decisions might
have for the High Court of Australia. 12 There. is a far more specific
problem in Australia in that section 116 stands by itself and not as
part of a Bill of Rights.
It is difficult to avoid the conclusion that the belief-action dichotomy has resulted in a serious impairment of the meaning of religious
freedom in the United States. By allowing the specific language of
the First Amendment to be forgotten it allows any action or course of
conduct to be regulated. The slightest scintilla of societal interest is
seen as being sufficient to justify the regulation. In the only two
cases in which the Supreme Court has appeared to uphold a defence
of religious freedom other factors have been present. These were
generalized conceptions applying to the whole of the First Amendment and not merely to the free exercise of religion clause. Indeed no
case has ever been decided upholding religious freedom in the United
States expressly upon the basis of the precise language of the free
6 E.g. St Louis v. Hellscher (1922) 242 S.W. 2d 652. See generally Lake, 'Freedom
to Worship Curiously' (1948) 1 University of Florida Law Review.
7 Hamilton v. University of California (1934) 293 U.S. 245; Re Summers (1944) 325
U.S. 561.
8 (1942) 319 U.S. 105.
9 West Virginia Board of Education v. Barnette (1942) 319 U.S. 624.
10 'Thou shalt not make unto thee any graven image, or any likeness of any thing
that is in heaven above, or that is in earth beneath . . . . Thou shalt not bow down
thyself to them, nor serve them .. .' . Exodus ch. 20, vv. 4 & 5.
11 Jackson J. talks in terms of the 'Bill of Rights' and the 'First Amendment'
without ever becoming more specific.
12 It is to be doubted seriously whether the High Court would follow the conclusion of the Murdock case. The case seems to go to rather extreme lengths as
there was no allegation that the amount of the tax was burdensome.
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exercise clause. Of all the freedoms of the First Amendment it has
become something of an ugly duckling.
The interpretations of section 116 that have been given by the High
Court of Australia are somewhat confused and contradictory. In the
first case, Krygger v. Williams 13 the Court offered an extremely narrow interpretation. Sir Samuel Griffith C.]. stated that:
Section 116 of the Constitution provides . . . "the Commonwealth
shall not make any law for ... prohibiting the free exercise of any
religion"-that is, prohibiting the practice of religion. To require a
man to do a thing which has nothing at all to do with religion is
not prohibiting him from a free exercise of religion. It may be that
a law requiring a man to do an act which his religion forbIds would
be objectionable on moral grounds, but it does not come within the
prohibition of section 116. 14
Relating this statement to the facts of the case, what Griffith C.]. is
saying is that as between compulsory military training, and the free
exercise of religion which forbids it, there can be no conflict. He
reaches this result by substituting 'practice' for 'exercise' in section
116. Thus in his view, if a religious objector can still 'practise' his
religion by going to church whilst being trained then section I 16
does not apply. For Griffith C.]. the 'free practice' of any religion
merely means the freedom to attend the church of one's choice. It
has nothing to do with religiously motivated acts and begins and
ends with a church door. The only thing which could violate section
I 16 on this view would be a denial of the right to attend a religious
ceremony or attaching some penalty to the exercise of this right.
This interpretation seems to have been adopted by Dr Wynes in
his leading text-book on Australian constitutional law. He suggests
that:
Perhaps the only safe test as to whether a law is one for prohibiting
the free exercise of any religion is whether the law prohibits the
exercise of religion in its character as such. IS
Whilst this passage is not free from both vagueness and ambiguity
it appears that Dr Wynes is saying much the same as Griffith C.].
The phrase 'in its character as such' seems to have reference to a
religious ceremony as opposed to religiously motivated conduct in
general. It is suggested that both Griffith C.]. and Dr Wynes give
an unduly restrictive interpretation of section I 16. The word used
in the section is 'exercise' not 'practice', and the search should be for
a sound rather than a safe meaning.
Several years after the decision in Krygger v. Williams Higgins ].
suggested a far broader interpretation of section 116. In the course
of a judgment involving the question whether a socialist had a
13 (1912) 15 C.L.R. 366.
14
Ibid. 369.
15
Wynes, op. cit. 177.
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'valid and sufficient' reason for failing to vote at an election because
all the candidates were capitalists, he said:
I might add that, in my opinion, if abstentation from voting were
part of the elector's religious duty, as it appeared to the mind of the
elector, this would be a valid and sufficient reason for his failure to
vote (section II6 of the Constitution).I6
This comment was completely irrelevant to the question which was
before the Court but it does show that Higgins J. was prepared to
give section I I 6 a far wider meaning than was Griffith C.J.l1 He gives
the word 'exercise' its normal meaning without the artificial substitution of the word 'practice'.
The leading Australian case in this area is however Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth. I8 In that
case the validity of some wartime regulations which gave power to the
Governor-General to dissolve subversive bodies were called in question. A group of Jehovah's Witnesses was declared to be subversive
and its property seized. One of the arguments they advanced in their
defence was that section 116 gave them protection from the operation
of the regulations.
Sir John Latham C.J. was the only judge who dealt with this
argument in any detail. He made a thorough examination of the
American cases on the subject and concluded that they contained
too many difficulties to be useful. His remarks on some of these
points have already been discussed. The basis upon which he finally
decided that section 116 did not give the Jehovah's Witnesses a defence was however a root and branch repudiation of Kryggerv.
Williams. I9 Stressing the meaning of 'exercise', and the breadth of
'religion', he confessed that he found great difficulty in suggesting
any limits to the section. He was able however to state one which
decided the case against the Witnesses:
It is consistent with maintenance of religious liberty for the State to
restrain actions and courses of conduct which are inconsistent with
the maintenance of civil government or prejudicial to the continued
existence of the community. The Constitution protects religion within
a community organized under a Constitution, so that the continuance
of such protection necessarily assumes the continuance of the community so organized. This view makes it possible to reconcile religious
freedom with ordered government. It does not mean that the mere
fact that the Commonwealth Parliament passes a law in the belief
that it will promote the peace, order and good government of Australia precludes any consideration by a court of the question whether
Judd v. McKeon (1926) 38 C.L.R. 380, 387.
Higgins' statement has been vigorously criticized by Wynes, op. cit. 177. However it is suggested that Riggins' interpretation of s. 116 is far sounder than that
of Wynes.
18 (1943) 67 C.L.R. II6.
19 (1912) IS C.L.R. 366. The case indeed is studiously ignored in the judgment of
the Chief Justice.
16
17
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or not such a law infringes religious freedom. The final determination
of that question by Parliament would remove all reality from the
constitutional guarantee. 20
The preservation of the community in which the freedom of religion was guaranteed was found by Latham C.J. to be one limit
upon section I 16. It is certain that he would not suggest that it was
the only limit. This was simply the basis upon which he was able to
decide the particular case. His approach to the problem is the significant thing. It is characterized by a realization that it is not any
societal interest at all which will justify intrusion on the free exercise of religion. The interest must be approaching one fundamental
to social life. Because a legislature has passed a law which interferes
with religious freedom it does not automatically mean that the interference is provided with a social justification that transcends the
constitutional guarantee. It is for a court to scrutinize the interference
and to invalidate it unless some overwhelming justification is found.
The belief-action dichotomy that has been evolved in the American courts can thus be seen as a title for an answer rather than a
solution to a problem. It states that actions motivated by religious
belief can be regulated. However it does not go on from there and
by stopping it implies that any societal value will justify the regulation of such actions. But the question is far more difficult. The question is not whether actions, but what actions, can be regulated. No
glib formula exists which can answer this question. At most a court
faced with a problem involving the validity of a restriction on religious freedom can begin with a constitutional presumption of invalidity. In order to defeat this presumption a showing must be made
that some basic value of social life is served by the restriction. Beyond
that it is difficult to go. As Rich J. has said in relation to section I 16:
It is, I think, a mistake for the Court to lay down general or abstract
propositions as to the effect of section 116. It is typically a provision
the interpretation of which should be developed by specific decisions
applicable to the particular facts of the given cases. 21
Here as in many other areas a flight from generality may be the
beginning of reason.
Whilst both the First Amendment and section I 16 prohibit any
interference with the free exercise of religion the question arises as
to whether they similarly create a freedom for non-religion. Can, in
other words, an unbeliever be discriminated against in any way
without a violation of these provisions?
At the outset it should be noted that the answer to this question
(1943) 67 C.L.R. 116, 131-132.
Adelaide Company ot Jehovah's Witnesses Inc. v. The Commonwealth (1943)
67 C.L.R. 116, 148.
20
21
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need not depend exclusively upon an interpretation of the free exercise clause. Such discrimination might violate the command, contained in both Constitutions, forbidding the establishment of religion by law. 22 And, just as important, the inability of either the
Commonwealth or the United States governments to require religious tests as a qualification for public office might be involved. 23
However putting these to one side, and viewing the question as one
solely requiring an interpretation of the free exercise clause, the
answer seems reasonably clear. The grant of a freedom to do something, or to act in a certain way, must as a matter of logical necessity
carry with it the freedom to refrain from any action at all. To take a
somewhat rustic example: if Farmer Brown gives Joe the freedom
to hunt deer on his property then Joe may, or may not, exercise
that freedom as he chooses. It is exactly the same with a constitutional grant of religious freedom. The freedom to exercise the religion
of one's choice carries with it, of necessity, the right to have no
religion. Otherwise the freedom would be one to believe but not to
disbelieve.
Scattered throughout the Australian and American case law in
this area are judicial dicta which categorically affirm this freedom of
religious disbelief.24 Recently however the Supreme Court has specifically decided the point in Torcaso v. Watkins.25 The case involved the
validity of a Maryland requirement which conditioned the holding
of public office upon a belief in God. 26 Each office holder was compelled to sign an affidavit affirming such a belief before he could
begin working. In the Maryland Court of Appeals the constitutionality of the requirement was upheld. Judge Henderson concluded
his opinion with the following remarkable declaration:
22 The Supreme Court has held that the establishment clause requires governmental neutrality not only between the various religions but also between religion
in general and non-religion. Infra. pp. 74-76.
23 'No religious test shall [ever] be required as a qualification for [to] any office
or public trust under the Commonwealth [United States].' The text is that of
s. 1I6 and the insertions represent the slightly different language of U.S. Const.
art. VI, §3. It is an open question in the United States whether Article VI, §3
applies to the States via the due process clause. See a note (1961) 74 Harvard Law
Review 6II, 614.
24 E.g. '[The First] Amendment requires the state to be neutral in its relations
with groups of religious believers and non-believers.' Everson v. Board of Education
(1947) 330 U.S. I, 18 per Black J.; 'Section II6 proclaims not only the principle of
toleration of all religions, but also the principle of toleration of absence of religion.'
Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth (1943) 67
C.L.R. 1I6, 123 per Latham C.J.; 'This freedom plainly includes freedom from
religion with the right to believe, speak, write, publish, and advocate antireligious
programs.' McGowan v. State oflMaryland (1961) 366 U.S. 420, 564 per Douglas J.
(dissenting opinion).
!
25 (1961) 367 U.S. 488.
26 The requirement of theistic test for public office exists in five other States:
Ark. Const. art. 19, §I; Miss. ((:onst. art. 14, §265; N.C. Const. art. VI, §8; S.C.
Const. art XVII, §4; Tenn. Const, art. IX, §z. Two other State Constitutions empower
the legislature to prescribe such' tests: Pa. Const. art. I, §4; Tex. Const. art. I, §4.
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The historical record makes it clear that religious toleration, in which
this State has taken pride, was never thought to encompass the
ungodly.21
Apparently the self contradiction of this sentence was not regarded
as possessing any significance. Indeed it rather resembles a clause
of the infamous Massachusetts Charter of 1691 which provided:
Forever hereafter there shall be liberty of conscience allowed in the
worship of God to all Christians, except papists. 28
The Supreme Court unanimously reversed the Maryland decision.
Black J., who wrote the opinion, thought that the requirement was
a clear violation of the First Amendment made applicable to the
States by the Fourteenth Amendment. However his opinion is quite
vague on the question of which particular clause was violated. He
relies neither on the precise language of the free exercise, nor the
establis~ment clause. Instead he is content to talk in general terms:
We repeat and again reaffirm that neither a State nor the Federal
Government can constitutionally enforce a person "to profess a belief
or. disbelief in any religion". Neither can constitutionally pass laws
which aid all religions as against non-believers, and neither can aid
those religions based on a belief in the existence of God as against
those religions founded on different beliefs. 29
This generalized approach to the specific guarantees of religious freedoni may reflect a conclusion that both clauses have been violated.
However for the purposes of this analysis it is enough ~or us to
conclude that Torcaso v. Watkins supports the view that the free
exercise of religion also embraces the freedom of non-religion.
/PART Ill:
THE ESTABLISHMENT CLAUSE
Congress shall make no law respecting an establishment of religion.
The Commonwealrll shall not make any law for establishing any
religion.
I
The struggle for religious freedom in America during the Colonial
period was directed towards the disestablishment of the established
churches. In Virginia the efforts of Jefferson and Madison to abolish
the privileges enjoyed by the Church of England set the pace for
this movement. 30 The rationalist spirit of the eighteenth century,
Torcaso v. Watkins (1960) 16z A. zd 438, 443.
See Williams, Witchcraft (1959) z76-Z94.
29 (1961) 367 U.S. 488, 49S.
The Church of England· was also the established church. in Maryland, North
and South Carolina, and Georgia. In the New England colonies the Congregational
churches were established. Only Rhode Island, Pennsylvania and Delaware had no
established church. See Cobb, The Rise Of Religious Liberty in America (190z) 70 If.
21
28
30
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with its accent on the 'rights of man', saw tyranny in the governmental recognition of an official religion. Towards the end of the
century, pressures which had been building up for many years,
combined to destroy the various establishments. 31 Many of the Constitutions adopted after the break with England reflect the changed
attitude. For example, the North Carolina constitution of 1776
declared:
There shall be no establishment of anyone religious church of discrimination in this state, in preference to any other. 32
The inclusion of a similar guarantee in the Bill of Rights that was
attached to the Federal Constitution must be seen against this background. Many politicians however, among them James Madison, the
author of the First Amendment, thought that such a provision would
be meaningless. As the Federal Government was given no legislative power over the subject of religion they argued that a prohibition on the exercise of a non-existent power was unnecessary and even
dangerous. 33 Whatever merit these arguments might have had they
were inconsistent with the spirit of the age. It was too much to ask
of the American people that they forgo the verbal enshrinement
of the principles which, but recently, had been their battle cries.
Thus when the First Amendment was originally proposed by James
Madison in the House of Representatives it contained the following:
The civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be established, nor
shall the full and equal rights of conscience be in any manner, or on
any pretext infringed. 34
After debate and amendment in both Houses the relevant part of it
finally emerged as a prohibition restraining Congress from passing
any law 'respecting an establishment of religion'.
The clause has a curious ring about it today. This is due partly to
the fact that the word 'establishment' has a physical connotation in
its modem usage. Just as we refer to an educational establishment
or a retail establishment it seems that the First Amendment refers
31 Among these pressures were the multiplicity of religious sects, the growth in
the number of people without church affiliation, the rise of commerce, the impact
of rationalism and deism, and the unifying effect of the war with England. See
Pfeffer, Church, State and Freedom (1953) Ch. 4.
32 Art. XXXIV. Thorpe, American Charters, Constitutions and Organic Laws
(1909) v, 2793. Many other Constitutions had similar provisions.
33 Alexander Hamilton, for example, said: 'I go further and affirm that bills of
rights in the sense and to the extent to which they are contended for, are not only
unnecessary in the propClsed Constitution, but would even be dangerous. They
would contain various exceptions to powers not granted; and, on this very account,
would afford a colorable pretext to claim more than was granted. For why
declare that things shall not be done which there is no power to do?' Federalist
Papers (Modern Library ed. 1937) 559.
34 Annals of Congress i, 434. Author's italics.
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to a religious establishment-in other words, a church. The dramatic
eighteenth century implications of the word tend to be forgotten.
At that time it described a relationship and not a physical object. It
signified a position of privilege and favour which one religion enjoyed
to the exclusion of others.
The Supreme Court was not called upon to give an interpretation
of the establishment clause until 1947, or more than ISO years after
the First Amendment was adopted. In the intervening period however several leading constitutional lawyers volunteered observations
on the meaning of the clause. Joseph Story wrote that:
The real object of the amendment was, not to countenance, much
less to advance Mahometism, or Judaeism, or infidelity, by prostrating
Christianity; but to exclude all rivalry among Christian sects, and
to prevent any national ecclesiastical establishment which should give
to a hierarchy the exclusive patronage of national government. 35
Story was concerned to point out that the First Amendment had no
anti-Christian implication. Its sole purpose in his view was to prevent
government favouritism of anyone Christian sect. This did not mean
that the Federal Government was to abstain from assisting Christianity in general. Such a suggestion he thought was monstrous:
An attempt to level all religions, and to make it a matter of state
policy to hold all in utter indifference, would have created universal
disapprobation, if not universal indignation. 36
The key point of Story's analysis was that the establishment clause
only prevented discriminatory aid to a particular religion and not to
religion in general. In this he was supported by Thomas Cooley.
Cooley thought that by an establishment of religion:
is meant the setting up or recognition of a state church, or at least
the conferring upon one church of special favours and advantages which
are denied to others. It was never intended by the Constitution that
Government should be prohibited from recognizing religion where it
might be done without drawing any invidious distinctions between
different religious beliefs, organizations or sects. 31
All the establishment clause compels in this view is governmental
neutrality to religions, but not towards religion. However the United
States Supreme Court has rejected this interpretation in a series of
decisions extending from Everson v. Board of Education 38 to EngeZ v.
Story, Commentaries on the Constitution of the United States (1833) iii, 788.
Ibid. 786 .
37 Cooley, Principles of Constitutional Law (3rd ed. 1898) 224-225. He also defined
establishment in another work as a 'sect . . . favoured by the state and given an
advantage by law over other sects.' Cooley, Constitutional Limitations (2nd ed.
18 71) 469.
38 (1947) 330 U.S. I
35
36
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Vitale. 39 It has held that the clause also requires governmental neutrality between religion and non-religion. The following passage from
the opinion of Black J. in the Everson case makes this clear:
The "establishment of religion" clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set up
a church. Neither can pass laws which aid one religion over another.
Neither can force nor influence a person to go to or to remain away
from church against his will or force him to profess a disbelief in
any religion .... No tax in any amount, large or small, can be levied
to support any religious activities or institutions, whatever they may
be called, or whatever form they may adopt or practise religion . . . .
In the words of Jefferson, the clause against establishment of religion
by law was intended to erect "a wall of separation between church and
state . . . ." The wall must be kept high and impregnable. We could
not approve the slightest breach. 40
This passage has been consistently cited with approval by the Supreme
Court so it can be taken as stating accepted doctrine. Verbally, at
least, it gives the establishment clause a fantastic sweep. Aid to religion, irrespective of whether it is non-preferential, is forbidden. All
interactions between government and religion fall within its prohibition. Jefferson's famous 'wall' metaphor, from his letter to the DanburY Baptist Association, has come to have special significance in
regard to the First AmendmentY The Supreme Court has tended
to use it in place of the exact wording of the establishment clause.
This is almost certainly an attempt to translate the concept of establishment into language that is more comprehensible. It is intended
to capture the vividness of meaning that this somewhat dated part
of the First Amendment had when it was drafted.
The Supreme Court's sweeping interpretation of the establishment
clause has been vigorously and even violently opposed and defended.
Numerous books, and law review articles by the hundred, have been
written on the subject. Few areas of United States constitutional law
have ever known such heated controversy. The Supreme Court has
been accused of distorting history, overlooking social realities, and
ignoring the plain language of the First Amendment. On the other
hand it has not lacked supporters to applaud its history and sociology,
and to commend it for observing the literal command of the First
Amendment. Of course the reason for the excitement is not difficult
to isolate. If the establishment clause operates to forbid any Federal
or State financial assistance to religious organizations then church(r962) 370 V.S. 421.
Everson v. Board of Education (1947) 330 V.S. r, IS.
41 The letter contained the following: 'I contemplate with sovereign reverence
that act of the whole American people which declared that their legislature should
"make no law respecting an establishment of religion, or prohibiting the free
exercise thereof", thus building a wall of separation between church and state.'
Padover, The Complete Jefferson (1943) 519.
39
40
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controlled schools and universities cannot hope for eventual help
from public funds. From being politically delicate or difficult, it
becomes constitutionally impossible. Members of the Roman Catholic
Church, for example, argue that such a result penalizes them in the
free exercise of their religion. They are forced to pay taxes to support
the State educational system and then have to pay for their own
vast educational system on top of this. The Church therefore has a
great interest in this Supreme Court interpretation. It is not surprising that The Catholic Lawyer, The Fordham Law Review, The Notre
Dame Lawyer, The Villanova Law Review and the other law reviews
published by Catholic institutions have waged a running gun battle
with the no-aid interpretation. This is not to suggest that Catholics
are the only ones who have disagreed with the Supreme Court on this
issue. Far from it. But it does help to explain some of the heat that
has been generated.
Our present concern is not to fly any particular flag but rather to
examine the implications of the wall of separation doctrine to see if
it has any relevance to the Australian Constitution.
II
Despite the apparent width of the interpretation that has been
given the establishment clause it has had little practical effect. Apart
from a good deal of verbal flourish the Supreme Court has shown
little inclination to carry the announced doctrine to its logical conclusions. The Everson case, in which the wall of separation doctrine
was first announced, illustrates the point. In that case there was an
attack upon the validity of a New Jersey statute which authorized
local school districts to reimburse parents for the cost of transporting
their children to school. The statute was not limited in its scope to
public schools as its sole exception related to private schools run for
profit. A local school board planned to reimburse the parents of
children who attended Catholic parochial schools. Its power to do
this was chailenged on the ground that such an allocation of public
funds would violate the establishment clause.
A majority of the Court thought that the reimbursement was
perfectly valid. They expounded the meaning of the establishment
clause in the most grandiloquent language. It had erected a wall of
separation between church and State. It countenanced absolutely no
governmental aid of any kind to religion. And yet the reimbursement
of the travelling expenses of pupils attending Catholic schools was
held not to violate it. There seems to be somewhat of a disharmony
between the reasoning and the decision. Jackson J. was quick to seize
upon this in his dissent:
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The undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with
its conclusion yielding support to their commingling in educational
matters. The case which lrresistably comes to mind as the most htting
precedent is that of Julia, who according to Byron's reports, "whispering 'I will ne'er consent'-consented".42
The majority opinion, however, tries to rationalize the result by
drawing a distinction between aid to children and aid to religion.
Black J. contends that the legislation in question is designed to
assist all the children in the State to get to and from school safely.
Any aid extended to church schools as such was purely accidental:
The State contributes no money to the schools. It does not support
them. Its legislation, as applied, does no more than provide a general
program to help parents get their children, regardless of their religion,
safely and expeditiously to and from accredited schools. 43
The distinction is subtle, and it is one that could erode seriously the
wall of separation so carefully erected in other parts of the opinion.
For example public funds could be made available to all children
for the purchase of text-books irrespective of the schools they attend. 44
Such a result seems to be at odds with the blanket no-aid rule announced by the Everson majority. Yet it seems to be the direct consequence of their own reasoning.
The same basic inconsistency can be detected in a comparison of
two cases dealing with the question of religious instruction during
school hours. In the first case, McCollum v. Board of Education/ 5
a local school board granted permission for thirty minutes of religious
instruction per week to be conducted in the school building. If a
parent requested that his child be allowed to attend, then the child
was excused from his regular classes for the thirty minutes each
week. The religious instruction was given by either a Protestant
minister, a Jewish rabbi, or a Catholic priest, depending on the religion of the children.
This scheme was challenged on the ground that it constituted an
establishment of religion. Black J., who again wrote the opinion of
the Court, upheld the argument. He saw it as a complete demolition
o~ the wall separating church and State. The facts showed in his
VIew:
the use of tax supported property for religious instruction and the
close cooperation between the school authorities and the religious
42 Everson v. Board of Education (1947) 330 V.S. I, 19. Three other justices dissented in the case. The basis of the dissents was that the reimbursement scheme
constituted a violation of the establishment clause.
43 Ibid. 18.
44 Indeed the provision of textbooks for church schools under such a scheme
has already been upheld by the Supreme Court in Cochran v. Louisiana State Board
of Education (1930) 281 U.S. 370. The establishment of religion argument was not
considered, however.
45 (1948) 333 V.S. 203.
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council in promoting religious education. The operation of the State's
compulsory education system thus assists and is integrated with the
program of religious instruction carried on by separate religious sects.
. . . This is beyond all question a utilization of the tax-established
and tax-supported public school system to ;aid religious groups to spread
their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education. 46
Only five years after the McCollum case, in Zorach v. Clauson/ 7 the
Court was able to rule quite valid an almost exactly similar scheme.
The only difference was that the religious instruction took place off
the school premises. In every other respect it was the same. Parents
submitted a written request that their children be released from
their normal classes so that they might take religious instruction.
But instead of going to another classroom, as they did in the McCollum case, they left the building to go to their various churches.
Again Jackson J. protested the Court's sleight of hand. In a dissent,
penned with vitriol, he said:
The distinction attempted between that case and this is trivial, almost
to the point of cynicism, magnifying its nonessential details and disparaging compulsion which was the underlying reason for invalidity.
. . . The McCollum case has passed like a storm in a tea cup. The wall
which the Court was professing to erect between Church and State
has becom~ even more warped and twisted than I expected. 48
How the Court satisfied itself that Zorach could be distinguished
from McCollum need not concern us. It is enough to point out that
whatever the reconciliation the Court has allowed religious instruction to be given during school hours. How it is given is irrelevant.
The crucial point is that the State is permitted to excuse a child
during compulsory school hours in order to pursue religious, rather
than secular studies. It is impossible, without the assistance of mirrors, to say that this is not extending governmental aid to religion.
And yet in the very case in which this result was reached Douglas J.,
writing for the majority of the Court said:
There cannot be the slightest doubt that the First Amendment reflects
the philosophy that Church and State should be separated. And so
far as ... an "establishment" of religion is concerned, the separation
must be complete and unequivocal. The First Amendment within
the scope of its coverage permits no exception; the prohibition is
absolute. 49
One can only read these cases with a sense of mystification. The Court
Ibid. 209-210.
(1952) 343 V.S. 306.
48 Ibid. 325. Black and Frankfurter JJ. joined Jackson 1- in dissent. They would
have invalidated the scheme on the same grounds as the lV[cCollum decision.
49 Ibid. 312.
46
47
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seems to be saying one thing and doing another. 49a If there is a wall
separating church and State in the United States it is a very porous
structure. However, in a sense, it is probably just as well that the
Court has not been too logical in this area. If the absolutist no-aid
interpretation had been vigorously and consistently applied the results might have been alarming. Religion and government interact
in many different ways and if all contact between them was to he
suddenly severed harsh results would inevitably follow. Some examples will illustrate this.
Perhaps the most firmly established form of assistance that government extends to religious organizations is in the form of tax exemptions of various kinds. Churches are exempt from almost all
property and income taxes. This is an extremely valuable right. It
amounts in fact to a direct monetary grant to the various religions.
Under the Everson-McCollum no-aid rule these exemptions represent
flagrant violations of the establishment clause. And yet it requires a
feat of great imagination to visualize a court invalidating them. 50
Congress has on many occasions made Federal funds available for
use in Church controlled educational institutions. This has been done
as part of various general programmes applicable to private and public
education alike. The so called 'G. I. Bill of Rights' allowed veterans
to pursue rehabilitation studies in any field or institution they pleased.
For example a veteran could train for the ministry in the doctrines
of his chosen sect at public expense. He could attend any private
school or university. 51 During World War II Federal money was
also distributed to various denominational schools to be used for
the training of nurses. 52 Under the National School Lunch Act
49& A similar comment might be made about the Supreme Court's most recent
decision on the establishment clause, Engel v. Vitale. (1962) supra. In that case the
Court held that State officials cannot direct the daily recitation of a prescribed nondenominational prayer even though student participation is quite voluntary. The
opinion of the Court, written by Black J., contains the following footnote: 'There
is of course nothing in the decision reached here that is inconsistent with the fact
that school children and others are officially encouraged to express love for our
country by reciting historical documents such as the Declaration of Independence
which contain references to the Deity or by singing officially espoused anthems
which include the composer's professions of faith in a Supreme Being, or with the
fact that there are many manifestations in our public life of belief in God. Such
patriotic or ceremonial occasions bear no true resemblance to the unquestioned
religious exercise that the State of New York has sponsored in this instance.'
50 See generally Adler, 'Historical Origin of the Exemption from Taxation of
Charitable Institutions' in Tax Exemptions on Real Estate (1924); a note, 'Constitutionality of Tax Benefits Accorded Religion' (1949) 49 Columbia Law Review
968; Paulsen, 'Preferment of Religious Institutions in Tax and Labour Legislation'
(1949) 14 Law and Contemporary Problems 144; Alstyne, 'Tax Exemption of Church
Property' (1959) 20 Ohio State Law Journal 461.
51 Serviceman's Readjustment Act 1944. 58 Stat. Ch. 268, at 1.284. S. II defines
the 'educational or training institutions' to which the scheme applied. It includes
'all public or private elementary, secondary, and other schools and colleges, scientific
and technical institutions, colleges . . . professional schools, universities. . . ' .
52 57 Stat. 153 (1943)'
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certain foods are made available at no charge (and reduced charges)
to pupils attending both private and public schools. 53 On many
American coins and postage stamps appear the words 'In God we
Trust'. The Federal Government employs chaplains to lead prayers
in the Congress and to conduct religious services in the Armed
Forces. 54 Religious organizations are allowed the benefits of incorporation and freely avail themselves of it.55 Indeed when examples of
interaction between government and religion are sought the amazing
thing is the number of them. Professor Sutherland has commented that 'the most striking impression made on one who sets
out to study the subject is the omnipresence of such provisions'.56
It is not suggested that the Supreme Court would necessarily invalidate all the interactions. The Everson and the Zorach cases
demonstrate that the Court has avoided the surgical purity of the
no-aid, or wall of separation, doctrine. 57 However it is suggested that
the existence of innumerable interactions casts a great deal of doubt
upon the legal and sociological good sense of the doctrine. Church
and State cannot be divided into separate aid-proof compartments.
They are not two societies that can be separated by the erection of
a wall between them. Religion exists within a society and is a part of
it. Churches need to be sewered, connected to the water supply, and
given police and fire protection. They cannot be treated as hostile
enclaves. Their members, similarly, are citizens as well as believers.
That the Supreme Court has realized this is evidenced by the
actual results of the Everson and Zorach cases, but it continues to
talk of the establishment clause in absolute terms. The wall of separation bars, in the Court's view, all non-preferential aid whatsoever to
religion. This it is suggested is indulging in a little too much legal
poetic licence. As the Lord Chancellor said in Iolanthe,
In other professions in which men engage, The Army, the Navy, the
53 60 Stat. 23' (1946) at 1.234.
54 It has often been suggested
that the appointment of chaplains is unconstitutional. James Madison was certainly of this opinion. He wrote: 'The law appointing
chaplains establishes religious worship for national representatives, to be performed
by Ministers of religion . . . to be paid out of national taxes'. Madison thought
that this clearly violated the establishment clause. Fleet, 'Madison's Detached
Memoranda' (1946) 3 William and Mary Quarterly 534, 55S. For more recent expressions of the same view see Pfelfer, Church, State and Freedom (1954) 216, and the
dissenting opinion of Douglas J. in Engel v. Vitale (1962) 370 U.S. 421.
55 As early as ISI5 the Supreme Court, speaking through Story J., held that the
incorporation of religious societies did not violate the establishment clause. Terret v.
Taylor (ISI5) 9 Cranch 43.
56 Sutherland, 'Due Process and Disestablishment' (1949) 62 Harvard Law Review
I30S. For an exhaustive survey of these interrelationships between government and
religion see Fellman, 'Separation of Church and State in the United States: A
Summary View' [I95oJ Wisconsin Law Review 427, 473 If.
57 Douglas J. has recently expressed the view that all these interactions which
'honeycomb' the structure of the United States Government are unconstitutional!
See Engel v. Vitale (1962) 370 U.S. 421. The other justices disassociated themselves
from this view.
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Church and the Stage. . . Professional licence if carried too far Your
chance of sound thinking may certainly mar, And I fancy the rule
might be applied to the Bar, Said I to myself, said 1.
The lofty language in which the Court has described the meaning of
the establishment clause is difficult to reconcile with its own decisions.
All aid to religion cannot be barred. Even if it were desirable it
would be a complete impossibility. The idea of a wall separating
church and State is misleading because it can never be a reality. It
may be a good battle-cry but it is poor law. What is needed in this
area is a frank recognition that some governmental aid to religion
is inevitable. The crucial question then becomes what type of aid
does the establishment clause allow.
III
There are significant differences between the establishment clauses
of section 1 I6 and the First Amendment. The Australian version
prohibits the Commonwealth from passing any law 'for establishing
any religion'. This is in contrast with the First Amendment which
commands Congress not to legislate 'respecting an establishment of
religion'. In the light of the history of section I I6 it would be foolish
to ascribe any particular reason for the change. 58 Probably the simple
explanation is that the Australian draftsman thought he better captured the meaning of the First Amendment than did its own language. However that may be the point is that the language is different.
The Australian version seems clearly to imply a neutrality between
competing religions. It forbids the establishment of any particular
religion but it is silent on the question of non-preferential aid to
religion in general. On the other hand the First Amendment prohibits 'an establishment of religion'. This formulation is more susceptible to an interpretation forbidding governmental assistance to
religion in general than is section I I6. If the First Amendment read,
'an establishment of a religion', then the Australian transcription
would have been more accurate.
Although the change of language in section I I6 may have been quite
accidental it does mean that the Supreme Court's no-aid gloss is
not automatically transferable to Australia. No Australian Court
has ever offered an interpretation of the establishment clause, but
most commentators are agreed that it does not forbid non-preferential
aid to religion. Writing in IgoI Sir John Quick and Sir Robert Carran
opined that:
By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours ... to
58
Infra pp. 50-56.
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one Church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious
worship.59
Almost fifty years later Professor Cumbrae-Stewart more specifically
said:
The words "establishing any religion" are much less apt than the
words "establishment of religion" to include a grant on a per capita
basis to all religions equally.60
Not only is the language of section 116 different but so also is the
social background against which it must be set. The Supreme Court
in interpreting the First Amendment has placed great stress on what
was said and what was done at the time of its adoption. Opinions
expressed by men such as Jefferson or Hamilton as to its meaning
are accorded great respect. Indeed a good deal of the current debate
in the United States over the establishment clause is centred around
the framers' original intentions. 61 In addition to history American
traditions are called in aid as reflecting the proper relationship between church and State. 62 Needless to say all this is quite irrelevant
in Australia. The question is what section 1 16 embraces in the light
of Australian needs, experience, and history, not what its language
meant in the United States in 1791, or means today.
One area of governmental activity provides a good illustration of
this point. Religious instruction in public schools has been a very
sensitive subject in the United States. The Supreme Court, as we
have already seen, has invalidated such instruction when it takes
place on school premises. It has even invalidated the daily recitation
of a brief non-denominational prayer. 63 There is however great doubt,
verging on certainty, in the mind of the present writer whether such
a result would be reached by the High Court of Australia. To begin
with, section 116 has effective operation only in the various territories
59 Quick and Carran, op. cit. 951.
60 Cumbrae-Stewart op. cit. 208. He
more particularly defined the establishment
clause as prohibiting the Commonwealth from:
'(i) declaring a certain religion to be true and making its principles formally
binding on the State. . .
(ii) reforming abuses in an existing religion and controlling changes in it. . .
(iii) assisting a religion in making its decrees and anathemata effective .. .
(iv) giving State assistance in the plantation of a religion in a new area . . . ' .
Ibid. 208.
61 The participants in this historical struggle apparently forget the comment of
Holmes J. that 'when we are dealing with words that also are a constituent act,
like the Constitution of the United States, we must realize that they have called
into life a being the development of which could not have been foreseen completely
by the most gifted of its begetters. It was enough for them to realize or hope that
they had created an organism; it has taken a century and cost their successors
much sweat and blood to prove that they created a nation. The case before us must
be considered in the light of our whole experience and not merely in that of
what was said a hundred years ago.' Missouri v. Holland (1920) 252 U.S. 416, 433.
62 See fo.r example the concurring opinion of Frankfurter J. in McCollum v. Board
ot Educatzon (1948) 333 U.S. 203, 227.
63 Engel v. Vitale (1962) 370 U.S. 421.
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of the Commonwealth. 64 The States are in no way affected by it. This
means that they are perfectly free to make whatever arrangements
they think desirable with regard to religious instruction in public
schools. All of them have passed legislation allowing such instruction
to be given in school hours on the school premises. 65 Religious instruction is also given in the public schools in the Australian Capital
Territory, however, which comes under the control of the Commonwealth. 66 If the McCollum and Engel cases applied in Australia this
instruction would be a violation of section I I6 and thus invalid. But
the situation is different. Religious instruction is a fixed part of the
educational programme of each State. This tends to create an atmosphere that points towards a contrary result. The tradition, in short, is
quite different. Why should the accident of a child attending school in
Canberra, rather than in Sydney, cut it off from religious instruction?
Another example that might be taken from the field of education
is the money made available by the Commonwealth Government for
the building of church schools in Canberra. Money is made available
in the form of interest payments upon the loans contracted by the
churches in order to build schools. The scheme is not discriminatory
as it applies to all churches which might build in Canberra. 61 If the
Everson-Zorach-McCollum no-aid rule represents the meaning of section I I6 this is clearly invalid. 68 It is providing aid to religion over
non-religion, which the Supreme Court has said cannot be done. And
yet one has a sneaking doubt whether the High Court would invalidate
the scheme. Social facts almost compelled the Commonwealth Government to provide the aid. Over the past few years large numbers
of public servants have been uprooted from their homes in the
capital cities and transferred to Canberra. The cost of building church
schools to educate the expanding population was far too great for
a limited population to bear. As the Government was responsible
for the transfers it decided to alleviate the burden. 69 Before a Court
64 Pannam, 'Section 116 and the Federal Territories' (1961) 35 Australian Law
Journal 209.
65 Education Act 1958, s. 23 (Vie.); Education Acts Amendment Act 1940 (S.A.);
Education Department Regulations, Part XVII s. 5 (S.A.); Education Act 1928-1955,
s. 29 (W.A.): Education Act 1932, s. 6 (Tas.); Education Regulations 1958, s. 19
(Tas.); Education Amendment Act 1910, S. 22 (Qld); Education Regulations 1957,
rules 13-21, II4-II8 (Qld); Public Instruction Act 1880 ss 7, 17, 18 (N.S.W.).
66 This is given under the authority of s. 17 of the Public Instruction Act 1880
(N.S.W.) which applies in the A.C.T. That section allows one hour per day to be
taken with religious instruction but in fact 30-45 minutes per week are set aside
for the purpose.
61 Until January 1961 only the Roman Catholic Church and the Church of England
had availed themselves of the offer.
68 The Commonwealth Government must have been quite concerned about this
prospect as no legislative measure gave effect to the scheme. Instead the expenditure is authorized each year by Division 280 D. I I of the relevant Appropriation
Act. The difficulties of ever bringing the validity of this before a court are obvious.
69 The population of Canberra has jumped from 9,000 in 1936 to well over 80,000
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invalidated such a scheme it would have to take all these social pressures into account. Section 116 does not operate in a vacuum.
From these two examples it can be seen that the way in which
the Supreme Court interprets the First Amendment can only have
an incidental importance in regard to section 116. The social settings
of the two provisions are very different and the traditions within
which they operate vary. The difference in language is significant but
not critical. Even if they were identically phrased they would still be
different. Transcription of a constitutional text cannot result in transcription of meaning-except by accident. The needs and pressures
of two different societies guarantee that.
IV
To read the establishment clause as compelling a strict and severe
prohibition upon all governmental aid to religion is to divorce it
from the rest of section 116. That section not only forbids the
establishment of any religion but has as its fundamental purpose
the guarantee of religious freedom. It would be a very strange result
if the establishment clause were interpreted so as to infringe this
central purpose. And yet that is precisely the effect the no>-aid rule
would have in many situations. When, for example, a government
isolates men in restricted areas it is forced to provide for all their
normal needs. This is true of operations as diverse as military camps,
jails, weapon testing areas, narcotic hospitals and weather research
stations. Among man's many needs that continue to require satisfaction in such places are spiritual ones. If a government were to provide
food, shelter and recreation but to ignore these then religious freedom
might be seriously impaired. This is the dilemma that the no-aid
rule inevitably creates. Any governmental assistance to religion would
violate its command. But the denial of governmental assistance would
hamper religious freedom. The horns are sharp and no resting place
exists between them.
It is suggested that wherever non-discriminatory governmental
assistance is required to preserve religious freedom the establishment
clause does not forbid it. The form of the assistance will vary. In the
case of jails it will amount to little more than a permission for
ministers of religion to visit the prisoners. In the case of the armed
forces however it may extend to the employment of chaplains at
public expense. But in all cases the government will be actively concerned with the problem of how it can best satisfy the religious needs
of various groups of people. An illustration of this approach can be
today. This has been the result of Government policy to transfer many Commonwealth departments from Melbourne to Canberra.
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1963]
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85
found in the decision of the Illinois Supreme Court in Reichwald v.
Catholic Bishop of Chicago. 7o That case involved the question of
whether the Roman Catholic Church could build a chapel on the
grounds of the Cook County Poor Farm. Permission to build had been
given by the County and it was made clear that other denominations
were similarly free to build chapels. A taxpayer however challenged
the County's authority to grant such permission. 71 The Court rejected
the challenge. Dunn C.}. who wrote the opinion said:
The Constitution does not absolutely prohibit the exercise of religion,
but, on the contrary, provides that the free exercise and enjoyment of
religious profession and worship, without discrimination, shall. be forever granted .... No one can be obliged to attend or to contribute;
but no one has a right to insist that services shall not be held. The
man of no religion has a right to act in accordance with his lack of
religion, but no right to insist that others shall have no religion. 72
The decision clearly recognizes that a governmental authority has
no power to deny religion to people under its care. This is so even
though it involves the use of public land for the erection of a chapel.
When it is realized that there are situations in which a government
needs to concern itself with religion the fallacy of the no-aid rule
becomes apparent. The establishment clause should not be construed
to mean that a government is powerless to extend non-discriminatory
assistance which is intended to preserve religious freedom. Such a
construction is internally inconsistent with the other clauses of section I 16. Beyond this however it is suggested that the establishment
clause only prevents governmental discrimination between the
various religions. If the Commonwealth were to decide that all church
controlled hospitals, schools and charitable institutions should be
financially assisted, section I 16 would be no bar. It merely directs
that such aid is to be non-discriminatory.73 The question of the
wisdom of such assistance then becomes a political rather than a legal
one. This would leave to the legislative forum the decision as to
whether such assistance is socially desirable. It is not for a court interpreting the antiquated vagueness of the concept of establishment
to condemn all assistance upon some a priori basis.
A possible objection to this analysis might be that it results in
a preference to religion over non-religion. This comes about because
a non-religious taxpayer is compelled to indirectly contribute to re(1908) 101 N.E. 266.
The challenge was based upon s. 3 art.· 8 of the Illinois Constitution which
prevents the legislature from making 'any aFpropriation or pay from any public
fund whatever, anything in aid of any church or sectarian denomination whatever.'
This of course goes very much further than the establishment clause of the Federal
Constitution.
72 Reichwald v. Catholic Bishop of Chicago (1908) 101 N.E. 266, 267.
73 This in itself is quite a problem. How is the basis for distribution to be worked?
On the basis of membership? Actual? Professed? Number of benevolent activities?
70
71
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ligious causes which he abhors. The truth of this is obvious. However
it does not follow that the objection has any constitutional foundation. Section 116 guarantees the right of disbelief. It does not allow
a non-believer to force his disbelief on others. He has no more right
to question the government's allocation of his tax monies to religion
than he would if it were used in a foreign aid programme of which he
disapproved. His voice may be raised in the legislature against the
merits of governmental assistance, it cannot be heard in the courts
to prevent it.
PART IV:
THE RELIGIOUS OBSERVANCE CLAUSE
The Commonwealth shall not make any law for imposing any religious observance.
Section 116 contains only one serious departure from its American
model. It expressly forbids the Commonwealth from legislatively
compelling any religious observance. There is no similar provision
in the United States Constitution. The curious story of how it came
to be included in section 116 has been told earlier in this paper. 74
Its sole purpose was to make it perfectly clear that the Commonwealth lacked power to enact Sunday observance laws· applying over
the whole of Australia. In a sense it was meaningless when it was
drafted. By no stretch of the imagination did the Commonwealth
possess any constitutional power in regard to Sunday observance.
This is so despite the slightly fantastic argument of Henry Bournes
Higgins to the contrary.75 However a circumstance unforeseen by its
ardent architect may rescue it from complete oblivion.
If the view is accepted that section 116 operates to limit the Commonwealth's legislative power over the Federal territories then the
observance clause takes on new importance. 76 The otherwise plenary
power of the Commonwealth under both section 122 and section 52 (i)
will have to be read subject to its terms. No religious observance can
be imposed by law in the territories. A question immediately comes
to mind: What is religious observance? Clearly it comprehends the
declaration of a public holiday to commemorate the life of some
Saint, or to mark the one hundredth anniversary of the Holy Topsmith Chutch. But these would be unlikely actions for a government
to take. A more serious question is whether Sunday observance laws
constitute the imposition of a religious observance. There can be no
question that the clause was originally intended to cover Sunday laws.
Indeed that was its sole purpose. 77 However the inquiry does not
end merely because the founding fathers intended to forbid these
74
76
Supra pp. 53-54.
See Pannam, op. cit.
75
77
Ibid.
Supra: pp. 53-56.
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87
laws. The question is whether the language they used was appropriate
to translate their intentions into law.
Sunday laws exist in all of the Australian States. Put quite simply
they make unlawful on Sunday certain activities which would be
lawful if performed on any other day of the week. The pattern of
legislation is like a patchwork quilt. It is made up of several hoary
English laws dating from the seventeenth century which still apply
in Australia/ 8 and various prohibitions of local origin that are
scattered all over the statute book. South Australia may be taken as
a representative example. The Sunday laws of that State may be
found in the Animal and Birds Protection Act 1934,79 the Bush Fires
Act 1934,80 the Early Closing Act 1935,81 the Gold Buyers Act 1935,82
the Harbours Act 1936,83 the Licensing Act 1936,84 the Pawnbrokers
Act 1935,85 the Places of Public Entertainment Act 1934,86 and the
Secondhand Dealers Act 1919.87 All of the other States, with the sole
exception of Tasmania, mirror this jumble. Tasmania codified its
Sunday laws in the Sunday Observance Act 1908.88 Most of this
polygot legislation applies in the Federal territories, the reason being
that the laws of South Australia, Queensland and New South Wales
have been variously made to apply to them. 89 In addition to this the
territories have adopted their own Sunday laws. 90
The question is whether these laws are constitutional in the territories when measured against the express language of section I 16. A
possible argument for their invalidity might run as follows: Sunday
is the Sabbath day of the Christian religion. The purpose of the restrictions upon commercial activity on that day is to facilitate and encourage attendance at the Christian Churches. They compel an atmosphere of tranquillity to aid the observance of Sunday as a sacred day.
When these laws are applied to non-believers they operate to force on
them a religious belief that Sunday is a day of rest. If applied to people
78 These have been held to apply in Australia under the tenns of the reception
statute. For example the English Sunday Observance Acts 1678 (29 Car. 11 c. 7) and
1781 (21 Geo. III c. 49) are in force in the Australian States. See Scott v. Cawsey
(19 0 7) 5 C.L.R. 132; Land Development Coy v. Provan (1930) 43 C.L.R. 583.
19 S. 24 (no hunting on Sunday).
80 S. 12 (Certain fires not be lit on Sunday).
81 S. 46 (Shops to be closed on Sunday).
82 S. 24 (No gold buying on Sunday).
83 S. 166 (No shipping on Sundays except if live or perishable).
84 S. 50 (No liquor sales on Sunday.)
85 S. 32 (No pawnshop to be opened on Sunday).
86 S. 20. (Limits opening on Sunday).
81 S. 17 (No secondhand goods to be sold on Sunday).
88 This is the only Australian attempt to enact a comprehensive Sunday Observance Act. It wipes out many anomalies and clarifies the whole area.
89 See Pannam, op.cit.
90 The Australian Capital Territory has been quite active in this field: e.g. The
Trading Hours Ordinance 1926-1931, ss 22-27 contain provisions for the Sunday
closing of shops. Similarly the Theatres and Public Halls Ordinance 1928-1937,
s. 27 prohibits the opening of theatres etc.
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who observe another sacred day they force them to follow a Christian
dogma. This, for example, is true of Jews, Seventh Day Adventists,
Moslems, and Buddhists. 91 The first two hold Saturday as a holy
day. Moslems observe Friday, and Buddhists a day which is determined by the phases of the moon and consequently varies from week
to week. Sunday laws represent therefore the naked use of governmental power to compel a Christian observance. So viewed they are
in stark contradiction to section 116.
Historically there is no answer to this argument. The English
Sunday laws were clearly the product of Christianity's position as
the established religion. 92 The observance of Sunday as an holy day
was forced upon the whole population without regard to individual
belief. All 'worldly' activities ceased. However over the last two
hundred years or so secular justifications have been found for these
Sunday laws. Periodic respite from work benefits the members of
society as individuals and, to the extent that they are able to approach
their daily tasks with renewed vigour, benefits society as a whole. A
day of quiet, set aside for recreation varies the frantic pace of the
rest of the week. The choice of Sunday as the day for this purpose
can be explained by reasons of commerce. As the majority of the
population are Christian it is the logical choice. They will rest anyhow because their religion commands it. Thus Sunday harmonizes
the dominant religious belief and the secular interest. Blackstone,
in his pompous way, pointed this out a long time ago:
Besides the notorious indecency and scandal of permitting any secular
business to be publicly transacted on that day in a country professing
Christianity, and the corruption of morals which usually follows its
profanation, the keeping of one day in seven holy as a time of relaxation and refreshment as well as for public worship, is of admirable
service to a state, considered merely as a civil institution. It humanizes,
by the help of conversation and society, the manners of the lower
classes, which would otherwise degenerate into a sordid ferocity; it
enables the industrious workman to pursue his occupation in the ensuing week with cheerfulness....93
Today the argument would be couched in terms other than the
humanization of the lower classes but its utilitarian flavour would be
the same.
Both the Federal and State courts in the United States have consistently held that these secular justifications are controlling factors
in explaining the continued vitality of Sunday laws. Every State,
with the exception of Alaska, has legislation currently in force which
See Encyclopaedia of the Social Sciences (1937) vii, 414: 'Holidays'.
See generally Lewis, A Critical History of Sunday Legislation (1888); the concurring opinion of Frankfurter J. in McGowan v. Maryland (1961) 366 U.S. 420,
459-55 0 •
93 Blackstone, Commentaries (Lewis ed. 1897) iv, 63.
91
92
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89
prohibits on Sundays some form of conduct which is lawful on other
days.94 Although the United States Constitution does not expressly
deny the power to impose religious observances, the combined operation of the establishment and free exercise clauses has been held to
produce the same result. The courts have unanimously decided, over a
period of one hundred years that Sunday laws are valid as civil
regulations and are not to be classified as religious observances. 95
Field J. set the tone for these decisions in Soon Ring v. Crowley:
Laws setting aside Sunday as a day of rest are upheld, not from any
right of the government to legislate for the promotion of religious
observances, but from its right to protect all persons from the
physical and moral debasement which comes from uninterrupted
labour. Such laws have always been deemed beneficent and merciful
laws especially to the poor and dependent, to the labourers in our
factories and workshops and in the heated rooms of our cities: and
their validity has been sustained by the highest courts of the states. 96
As recently as June 15)61, this view was reaffirmed by the Supreme
Court of the United States. Warren C.J. writing the opinion of the
Court in McGowan v. Maryland said:
In the light of the evolution of our Sunday Closin~ Laws through the
centuries, and of their more or less recent emphasIs upon secular considerations, it is not difficult to discern that as presently written and
administered, most of them, at least, are of a secular rather than a
religious character.... The present purpose of ... them is to provide
a uniform day of rest for all citizens; the fact that this day is Sunday,
a day of particular significance for the dominant Christian sects does
not bar the State from achieving its secular goals. 97
It is suggested that the American view of the present character of
Sunday laws is correct. In origin they were beyond all doubt legislative
compulsions of a Christian religious observance. Their purpose has
changed, however. The growth of State paternalisrq has provided
them with a social, rather than a religious function.
Although the framers of section 116 intended the phrase 'any religious observance' to cover Sunday laws they failed to achieve their
purpose. Sunday laws are not religious observances and therefore this
clause of section 116 leaves them unaffected. However it does not
follow from this that section 116 is completely redundant. It may be
the particular applications of otherwise valid Sunday laws could
violate the free exercise clause. For example if an Orthodox Jew
opens a store for business on Sunday he may be constitutionally
94 The various State laws are coJlected in Appendix II to the concurring opinion
of Frankfurter J. in McGowan v. Maryland (1961) 366 U.S. 420, 551-560.
95 The cases are collected ibid. 508-512.
96 (1873) II3 U.S. 703, 710. Field J. dissented in the only case ever decided in
the United States that invalidated Sunday Laws. This was Ex Parte Newman (1858)
9 Ca!. 502, decided when he was a member of the California Supreme Court. His
dissenting opinion however became the doctrine of the Californian Court three years
later when Newman was overruled in Ex Parte Andrews (1861) 18 Ca!. 678.
97 (1961) 366 U.S. 420, 444-445. See also its companion case Two Guys From
Harrison-Allentown Inc. v. McGinley (1961) 366 U.S. 582.
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immune from prosecution. His religion charges him to refrain from
commercial activity on Saturday. IT the State can compel him to
remain closed on Sunday as well then he will be forced to work only
five days per week. This could result in serious economic losses because his competitors work a six day week. It is therefore arguable
that a secular requirement that he close on Sunday violates his
religious freedom.
Two cases have been decided recently by the Supreme Court of
the United States dealing with this precise fact situation. In one the
owners of a Kosher supermarket opened their store on Sunday in
violation of the law. us In the other a Jewish proprietor of a retail
clothing and furniture store did the same thing. 9u Both defended
the subsequent prosecutions on the bll;sis that the free exercise of their
religion had been violated by being forced to close. The Supreme
Court held by a six to three majority that the convictions were
proper. The decisions are not very persuasive and are very much
influenced by the belief-action dichotomy which is criticized elsewhere in this paper. Brennan J. took the view in his dissent that
there was no societal interest in this area strong enough to justify
the hampering of religious freedom. Answering his own series of
rhetorical questions he makes a persuasive argument to support his
position:
What, then, is the compelling state interest which compels the Commonwealth of Pennsylvania to impede [the] appellant's freedom of
worship? What overbalancing need is so weighty in the constitutional
scale that it justifies this substantial though mdirect, limitation of
[the] appellant'S freedom? It is not the desire to stamp out a practise
deeply abhorred by society, such as polygamy, as in Reynolds, for the
custom of resting one day a week is umversally honored, as the Court
has amply s~own .... It is not even the interest in seeing that everyone rests one day a week, for [the] appellant's religion requires that
they take such a rest. It is the mere convenience of everyone resting
on the same day. It is to defend this interest that the Court holds
that a State need not follow the alternative route of granting an ex·
emption to those who in good faith observe a day of rest other than
Sunday.l
It is suggested that this view ought to be followed in Australia.
Secular laws may be valid as a civil regulation but that does not mean
they cannot violate the free exercise clause. 2
Gallagher v. Crown Kosher Supermarket (1961) 366 U.S. 617.
Braunfield v. Brown (1961) 366 U.S. 599.
1 Ibid. 613-614.
2 Douglas J.'s method of approaching this question makes this -more apparent:
'The issue in these cases would be therefore better in focus if we imagined that a
state legislature, controlled by orthodox Jews and Seventh Day Adventists, passed
a law making it a crime to keep a shop open on Saturdays. Would a Baptist,
Catholic, Methodist or Presbyterian be compelled to obey that law or go to jail,
or pay a fine?' McGowan v. Maryland (1961) 366 U.S. 420, 565. (Dissenting opinion).
U8
99