A tale of two religion clauses

My wife, an American, was gobsmacked when I read out the story from today’s paper that the Australian government is spending $90 million to put chaplains in schools. To most Americans, the idea that the government would use public funds to promote religion is unthinkable. The first amendment to the US constitution reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As Wikipedia points out, this has been construed broadly. As Black J said in Everson v Board of Education:

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

Yet the odd thing is that the Australian constitution also has a religion clause. Indeed, ours was modelled on the US clause. It reads:

116. The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Yet while the religion clause in the US constitution gets interpreted broadly, the religion clause in the Australian constitution has always been interpreted narrowly. The Australian federal government probably couldn’t get away from legislating an official national religion, but government funding of religious schools, prayer in schools (my sixth grade teacher at Pennant Hills Primary School had us say the Lord’s Prayer daily), and government funding for chaplains, have always passed muster with the High Court of Australia.

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21 Responses to A tale of two religion clauses

  1. Michael Moriarty says:

    An interesting article on this subject is by Helen Irving from International Humanist and Ethical Union :

    http://www.iheu.org/node/2306

    It is long but of more than passing Interest:

  2. Kevin Cox says:

    Our Head of State is also the Head of a Church. Does that make a difference to the USA?

    I personally find the proposal offensive as it is an example of wedge politics and because if the reason is to introduce “Christian values” into schools it will have exactly the opposite effect.

    I my youth I watched “Pastors” suffer when they came into schools and tried to offer religious instruction. This proposal will make Churches look weak and foolish because the Pastors will not be up to it and it is the wrong context for the sort of “teaching” they are used to delivering.

    What will happen will be that the Pastors will go through the motions to collect their fee while dreading the humiliation they will be forced to endure. We can but hope that they will come to some sort of accommodation with the teachers and integrate their time with a subject like history or ethics in a team teaching way.

  3. Sinclair Davidson says:

    I, too, have always been surprised at Australians’ willingness to ignore the constitution. I think because it is a technical, dry document whereas the US constitution (and especially the attached bits and bobs) is largely an expression of the principles of the enlightenment.

  4. Yobbo says:

    This is one of the stupidest proposals yet from the Howard government.

    What possible good do they think putting chaplains in schools would do?

    School Psychologists are already a big enough waste of money without getting chaplains (essentially the same thing except unqualified) too.

  5. derrida derider says:

    “What possible good do they think putting chaplains in schools would do?”

    Getting Family First’s support for the government, of course.

  6. Michael Moriarty says:

    I find it totally abhorrent that the Government would spend money putting chaplaincy programs into school. Edmond Barton when question on section 116 said in essence that Commonwealth money COULD NOT be spent in the way now proposed.

    The aspect of teaching religion is not in or of its self objectionable provided the teaching touches the fundamentals of all religions. In much the same way as history should cover all history. I think people need to be educated about the diverse religious belief in our Country.

    What occurs to me is that school that all ready have these programs in place will benefit the most. Church related private schools Catholic, Protestant, Muslim…these school will not have parental objection to an already existing program.

    Just how can you make these non denominational.

  7. Hendo says:

    Bushs personal and political embrace of religion is clearly tactical, designed to control large parcels of American voters. Could Howards move be a step to garnering the support (or the silence prior to elections) of the Church. Nah, silly cynical me!!

  8. Florence Howarth says:

    This is a unnecessary and useless waste of money. If a tradgety happens within or outside school, any church minister would be free to offer assistance if required.

    This happened in the past. I remember an incident when my children were at school in the 70’s.

    A 7 year pupil was murdered nearby. The local church was involved with both parents and children. A special church srvice was held, where both parents and children could attend if they wished.

    I am certain that the same would apply today.

    I believe any local minister of any church would find this to be a part of their responsibilities. I do not see why they should be paid for something that can already occur.

    90 million dollars could be better spent elsewhere. Example could be the development and support of a better eating programme for children in the school setting.

    I noticed that special mention was made of NSW schools. Funny thing about a lot of Federal Government announcements at this time. They all manage to have dig at the NSW Goevernment.

  9. The US constitution doesn’t get interpreted that broadly. They still print “In God we trust” on their currency!!! (Unless it has changed recently, which I doubt!!!)

  10. While I agree that this is a silly waste of money, it is not wedge politics (a proposal designed to divide your opponents – Labor is not opposing it).

    And Kevin, I think you are one G-G behind the times.

  11. Steve Edney says:

    I think Ken was talking about the Queen.

  12. Kevin Cox says:

    Isn’t the Queen our Head of State and the G-G her representative?

  13. Sinclair Davidson says:

    ‘They still print “In God we trust” on their currency.’

    they’ve dropped the phrase, “because everyone else pays cash”.

  14. Michael Moriarty says:

    Is this Proposal a lemon or not :

    (http://www.firstamendmentcenter.org)

    Lemon test — A three-pronged test for whether a government involvement in religion is constitutional. In the 1971 U.S. Supreme Court decision Lemon v. Kurtzman, a case involving state funds for teacher salaries in private elementary schools, the Supreme Court determined that two state laws mandating the funding violated the establishment clause. The Court created what came to be known as the Lemon test, under which:

    “[T]he statute must have a secular legislative purpose.”
    “[I]ts principal or primary effect must be one that neither advances nor inhibits religion.”
    “[T]he statute must not foster ‘an excessive entanglement with religion.’”

    You have to think that the second of the tests would strike down government activity of this nature.

  15. Doesn’t the USA Feds give public monies to “Faith Based Charities”?

  16. Luke says:

    Just another example of the Federal Government extending their reach into affairs that are currently the matter of the States. Another example of confusing the lines of responsibility between the Feds and States.
    If the Government was interested in providing “opportunities and choices to all schools across Australia”, why doesn’t it grant the money to schools for whatever purpose the schools would prefer? Maybe they would prefer to source computers, textbooks or a specialist teacher rather than pastoral care? Why does the funding need to be tied?
    Maybe some schools would prefer to gain spiritual support for their students by running meditation classes or Tai Chi? Maybe they would like to get someone from an ethics centre to talk about ethical dilemmas? Spiritual support does not need to be religion-based yet it would appear that this policy works on the means, not the ends. And such a policy will attract those who use religion and faith as sources of meaning for their lives. While school education systems require support for providing spiritual development and dealing with ethical dilemmas, religion should not be priviliged over other sources.
    Doesn’t seem like choice to me!

  17. Yobbo says:

    I think the reasoning behind this is:

    1.) The government knows that the only schools likely to take up this offer are exclusive private schools that already operate under a certain denomination.

    2.) These schools mostly already have chaplains.

    So it’s basically a way to give $20,000 in extra funding to Australia’s exclusive private schools without stating that explicitly.

  18. Peter says:

    It is interesting to compare the US situation with that in Britain — which still has on its books the Act of Settlement (1706) and the associated laws on religion which the US founding fathers were keen to not copy in the New World. No Roman Catholic may become Head of State of the UK, nor may the Head of state or his/her successor marry a Catholic. The British Head of State is also Supreme Governor of the Church of England, but the laws do not prohibit this person being a muslim or a scientologist, or indeed anything else, except a Catholic. Until recently, a current or former Catholic priest could not become a member of the UK House of Commons. At the same time, the British Prime Minister still appoints the two leading Bishops of the Church of England, and these and other CofE Bishops still sit in the upper house of Parliament, the House of Lords. Until Mrs Thatcher changed the law, the Lord Chancellor (the British version of of the A-G, the Chief Justice, and the President of the Senate, rolled into one) had not been a Catholic since the Reformation.

    At the same time as these laws still apply — all in sharp conflict with European Treaty on Human Rights to which the UK is signatory — the British Government not only funds church schools, including Catholic, Jewish and Muslim schools, they also provide state-trained teachers for many of these schools. An atheist teacher I know was assigned to teach in a Catholic school and found herself teaching Religious Education, due to the severe shortage of recruits to the religious life.

  19. cba says:

    “An atheist teacher I know was assigned to teach in a Catholic school and found herself teaching Religious Education”

    preferable to a creationist “teaching” science

  20. Hans says:

    Could be that we never will see many of those chaplains in schools… I suspect there’s a tendency for think-out-loud policymaking in this government that sends useful political signals but doesn’t ever actually amount to much in practice. I haven’t got an examples to back this up, but I’m going to look for some…

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