Farrah Ahmed provides the first post in our book forum on Luke Beck’s Religious Freedom and the Australian Constitution. To see all posts please click here. Click through for posts by Alex Deagon and Marion Maddox, as well as Luke Beck‘s reply.

BY FARRAH AHMED

Luke Beck’s new book offers a history of the provisions on religion in the Australian Constitution. The narrative will not fail to engage the reader. The characters who play a role in shaping the Constitution are fascinating and include principled sabbath-breakers, authorities who have to build stocks for said sabbath-breakers, church leaders with conflicting views of the role of religion in the Constitution, and dogged delegates to the Federal Convention.

The book opens a window into spaces into which constitutional scholars rarely enter. It demonstrates that the Constitution was shaped not just by conversations and debates at the Convention, but also by conversations in church newsletters, church services and community gatherings. Beck offers us insight into what was at stake for all sides in the battle for the inclusion of God in the preamble as well as the battle for an anti-establishment countermeasure:

For the churches…constitutional recognition of God amounted in some way to an official acknowledgement of the authority of God. For the Seventh Day Adventists, constitutional recognition was both a violation of God’s command that church and state be separate and a source of potential religious oppression. For the Federal Convention as a whole, constitutional recognition of God was simply pragmatic politics.

Drawing on this history, Beck argues that the High Court judges’ interpretation of Article 116 is based on a number of erroneous assumptions. These relate to the role of American jurisprudence in the framing, the significance of the order of the clauses in Article 116 and the significance of the variations from the language of the First Amendment to the US Constitution. Beck makes the point bluntly: “The High Court has expressed beliefs about what the framers of the Australian Constitution thought about the expression ‘establishing any religion’ that have no basis in historical fact”. This is an important conclusion.

Beck goes on to offer a ‘constitutive theory of the origins of section 116’.  He invites us to understand the elements of the section as safeguards against intolerance, which ‘exists when a state attempts to change or suppress a set of religious beliefs and practices or imposes penalties for holding or following them’.

The relative merits of this theory – including its fit with the general features of the Australian Constitution – are clearly articulated. But I wanted to read much more by way of defence. Take the statement that ‘religious establishment is intolerant because it frames those who are not members of the favoured religion as outsiders and not full members of the community, which is a form of penalty for not adhering to the favoured religion.’

This is a plausible, even attractive, position. But it faces challenges. First, the claim about how members of non-favoured religion are ‘framed’ is essentially an expressive one. And there are raging debates about what establishment, particularly ‘symbolic’ establishment, expresses. Symbolic establishment is considered relatively unproblematic when the state in question is a liberal state which offers equal citizenship rights, and when the privileges that the favoured church/religion receives are not materially significant, but ceremonial or symbolic. The establishment of the Church of England is often offered as an example.

Does this kind of establishment indeed express ‘outsider’ status? Might it express instead the religious devotion of members of the established religion with no adverse implications for non-members? Or might it – in some contexts at least – merely express a reverence for history: e.g. Stephen Fry and many other British atheists are said to express a ‘Downton-esque nostalgia’ for the Church of England.

Second, there is a surprisingly wide consensus amongst scholars that we are witnessing ‘crises of secularism’. There is a hugely influential body of critical scholarship on secularism. Studies of the historical and intellectual roots of secularism have triggered unease about its justifiability in contemporary multi-religious societies. Much scholarship is suspicious of the secularist demand for the cleansing of religion from the public sphere. As sympathetic as I am to Beck’s claim about establishment, it must, it seems to me, contend with these challenges.

The historical account in the book is interesting in itself; but in improving our understanding of this history, Beck makes a significant contribution to our understanding of the Australian Constitution.

 

Farrah Ahmed is an Associate Professor at Melbourne Law School

Suggested citation:  Farrah Ahmed, ‘Book Forum on Luke Beck’s Religious Freedom and the Australian Constitution‘ on AUSPUBLAW (21 November 2018) <https://auspublaw.org/2018/11/book-forum-farrah-ahmed/>.