Kenny, Justice Susan --- "The right to freedom of religion" (FCA) [1999] FedJSchol 2

RELIGION, THE STATE AND SOCIAL CONSCIENCE

Justice Susan Kenny

1. THE RIGHT TO FREEDOM OF RELIGION
   

Franz Jagerstatter[1] was an Austrian farmer. In the late 1930’s, he was the father of three small children and was a devout Christian. Jagerstatter refused to serve in the German army when he was called up for military service in 1943, having reached the conclusion that the war was unjust and that it was his duty to refuse to serve. Before he took that decision, he consulted his parish priest and his bishop. They told him that neither they nor he were in a position to make an informed judgment about the justice of the war and that, accordingly, his conclusion was doubtful. Jagerstatter was executed for his refusal to join the army. He reasoned:

[W]henever rulers have declared war against other countries, they usually have not broken into their lands in order to improve them or perhaps give them something. ... If we were merely fighting Bolshevism, would other things like iron, oil wells, or good grainlands have become important considerations?

Whilst in prison prior to his death, he wrote:

For what purpose ... did God endow all men with reason and free will if, despite this, we have to render blind obedience; or if, as so many also say, the individual is not qualified to judge whether this war started by Germany is just or unjust? What purpose is served by the ability to distinguish between good and evil?

Jagerstatter’s conscience was informed by his religious conviction. His conscience brought him into conflict with the State (and so he lost his life) and with his religious advisers. His ultimate choice was a lonely one and his example raises, acutely I think, matters relevant to the relationship of religion, the State, and social conscience. What ought that relationship be? The answer one gives depends upon one’s own perspective. In what follows, I necessarily approach the matter from my own, constrained by my own experience.

One outcome of Jagerstatter’s and his contemporaries’ experience, particularly in Europe, was to come over a decade later, in 1948, with the proclamation by the General Assembly of the United Nations of the Universal Declaration of Human Rights, Article 18 of which said:

Everyone has the right to freedom of thought, conscience and religion; this includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public and in private, to manifest his religion or belief in teaching, practice, worship and observance.

It is, of course, now more than fifty years since the Universal Declaration was made, and many in the world still do not enjoy even a momentary glimpse of that freedom mentioned in Article 18. Intolerance and discrimination in matters of religion pervade many societies, as for example, those of India, Mexico, Algeria, Northern Ireland and Yugoslavia.[2]

Consideration of the past shows that the relationship between religion and the State has often been contentious, sometimes tumultuous, and rarely easy. The relationship between civil authority and social conscience, mediated by religious belief, has been and continues to be of vital importance for the religious person, and of necessary concern to the non-religious.

At international law, the right to religious freedom, though not universally enjoyed, is now well established. Article 18 of the International Covenant on Civil and Political Rights (the ICCPR), which entered into force on 23 March 1976, recognises a right to freedom of thought, conscience and religion. Article 1(3) of the 1981 United Nations General Assembly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Resolution 36/55 of 25 November 1981) provides that:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

The State is, at international law at least, under a duty to protect that freedom. Accordingly, Article 4 of the 1981 Declaration relevantly affirms:

1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief

... in all fields of civil, economic, political, social and cultural life.

2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take any appropriate measures to combat intolerance on the grounds of religion ... .
   

The development of international standards governing freedom of religion and belief was given further impetus by the adoption, in 1993, of relevant guidelines by the (UN) Human Rights Committee.

The acknowledgment of the ideal of religious toleration and the notion that the State has a duty to foster it is not confined by its European origins. In addition to the instruments already mentioned, there are numerous regional instruments, as for example, the 1948 American Declaration of the Rights and Duties of States (Article III), the 1978 American Convention on Human Rights (Article 12), the 1981 African Charter on Human Rights and People’s Rights (Articles 2 and 8) (as well as the 1950 European Convention on Human Rights (Article 9)).

2. THE SOURCE OF THE RIGHT TO RELIGIOUS FREEDOM
   

Apart from international law, what is the source of the duty of the State to protect religious freedom? The answer may indicate something of the nature of the duty and may be better given by a philosopher or a theologian. As I am neither, I do no more than note that different answers may be proffered. Some, for example, John Locke, James Madison and Thomas Jefferson have said that the duty of the State in relation to religion flows from the nature of religion and conscience. The argument is that religious belief, which gives a transcendent meaning to life, is essentially a private concern and so intensely personal that neither the State (nor anyone else) has any business with it. In 1802, Thomas Jefferson gave expression to this approach in his Reply to the Danbury Baptist Association when he said:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, 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.[3]

For much of its history, the Supreme Court of the United States has been building and repairing Jefferson’s “wall of separation”. The Religion Clauses of the First Amendment of the United States Constitution have, broadly speaking, been construed according to the view that freedom of religion is, of its nature, the inherent right of the individual.

Another way of describing the source of the duty of the State in relation to religion is indicated in Article 3 of the 1981 UN Declaration on religion referred to earlier. Article 3 relevantly affirms that:

Discrimination between human beings on grounds of religion or belief constitutes an affront to human dignity ... .

The language of Article 3 can be compared with the Declaration of the Second Vatican Council that “the right to religious freedom has its foundation in the very dignity of the human person, as this dignity is known through the revealed word of God and by reason itself.”[4] The comparison between the language of international instruments and the language of the Council may indicate the emergence and acceptance across States and by one of humanity’s most widely acknowledged faiths of another rationale for religious freedom deriving from the idea of the dignity of humanity. This shared rationale might well provide a firmer basis for religious freedom than any other.

On this approach, the argument for religious freedom runs as follows. There are certain rights which issue from the dignity of shared humanity and one of those rights is the right to freedom of religion. If the right to freedom of religion derives from the dignity of shared humanity, not the nature of religious belief, then each beneficiary of the right (i.e. each of us) has a duty to recognise the right of another to acquire and observe a belief in a transcendent reality which differs from his or her own. In this scheme of things, one cannot have a right without also having a duty to accord the same right to others.

3. THE DUTY OF THE STATE
   

How, then, is the State to discharge its duty in relation to religion? In some societies it is said by religious people that it is the duty of the civil authority to promote the “true religion” and to remove that which stands between a citizen and the “true way”. In parts of the Islamic world this view apparently holds sway: in the name of religion, some State-accepted interpretations of Islamic law leave little or no room for freedom of religion.

There may, perhaps, be a problem here. If the duty of the State is to foster religious freedom, then what is the State to do when a tolerated religion teaches its adherents that they are not to permit non-believers to enjoy that freedom? Plainly enough, freedom of religion, like freedom of conscience, is not absolute. Just as a right to freedom of conscience cannot extend to the conscientious terrorism,[5] so a right to freedom of religion cannot extend to a right, in the name of religion, to destroy the religious freedom of others. That recognition has consequences too for the religious person, who informed by religion, urges social action arising out of social conscience. For example, what should hospital authorities do when, on religious grounds, they would save life but dying patients or their relatives seek to deny life-giving medical treatment also on the basis of religious belief?

As experience and the course of history shows, conflict between values, even within the one religious world-view, is inescapable: no reasonable civil authority can resolve such conflict finally, or even make such arrangements as would prevent that conflict from arising. What matters, then, is how the civil authority deals with the conflict which religious adherence may engender. The question then is, how should civil authority protect religious freedom without adopting such arrangements for the accommodation of religious differences as would impair it?

The attitude of the State may well determine the appropriateness of the means chosen to protect religious freedom. What should that attitude be? Is “impartiality” on the part of the State in the best interests of the State and religion? In western democracies at least, the State requires its judges to administer justice according to law, and that means in part “without fear or favour, affection or ill-will”. There is a consensus that for judges to fulfil their role, they must be and be perceived to be impartial. Are the considerations which require impartiality of judges relevant to the State in determining the arrangements to be made with respect to religion and religious differences? Plainly enough, there are differences between the position of judges in relation to litigants and the position of the State in relation to religious differences. The judge is incompetent to decide a matter other than according to law, which requires, amongst other things, impartiality. Let it be assumed, however, that the State has no competence in matters of religion. If the State is to protect freedom of religion and accommodate religious differences without offending that freedom, then, perhaps, it too must not have, or be perceived to have, any partiality for one religious faith over another.

What, if any, are the minimum conditions to be met if the State is, or is to be perceived to be, impartial in relation to religion? It seems to me that there are some minimum conditions, and that they may be the following.

1. The recognition by the State that it is not competent to determine truth in religious matters.
2. The constitutional separation of religion from the State.
3. The recognition by the State that it has no business in imposing or restricting (a) religious belief; (b) religious practice; (c) the internal government of religious bodies; (d) religious teaching and training within a community of believers; (e) voluntary arrangements for financial and other aid to religion; and (g) the freedom to communicate religious belief to anyone within and without the State.
   

Broadly speaking, those minimum conditions would conform to accepted standards under international law.[6]

When such minimum conditions exist, it is, of course, open to any person whose conscience, informed by religion, requires him or her to speak on a matter of social concern. So far as the State is concerned, however, religious commitment neither qualifies nor disqualifies an advocate who, informed by religious belief, seeks what he or she perceives to be social improvement.

It is perhaps just as well that those who speak out of religious commitment have no preferred position. None have a monopoly on the truth. In 1929 Professor A P Elkin, who was a noted professor of anthropology and an Anglican clergyman, espoused the cause of miscegenation (racial interbreeding), with a view to curing what he thought might be the fundamental inequality in the biological inheritance of “primitive” people.[7] There would be few professors of anthropology, let alone clergymen, who would promote such a view today. Earlier this century, similar views formed part of the intellectual baggage of many respected eugenicists. I return to them below.

Impartiality alone does not, however, secure freedom of religion for all members of the State’s community. Plainly enough, more is required of the State if it is to maintain the right. A State, cognisant of its lack of religious knowledge, may impose no burden directly on religion yet deny religious freedom by imposing burdens indirectly, or simply by leaving it to believers and non-believers to sort out whether all, or some only, of them will be permitted to participate and flourish on terms of equality in civil society. If it is to protect freedom of religion, the State must assign some value to religious freedom. In assigning value, the State indicates which of the burdens it indirectly imposes will give way to prevent an apprehended invasion of religious freedom.

Difficult issues arise in relation to freedom of religion and the care of children. In B v Children’s Aid Society of Metropolitan Toronto (1995),[8] the parents of a premature baby refused, on account of their religious beliefs, to allow doctors to provide the child with a blood transfusion to prevent the child’s potential heart failure. When a court ordered that the medical treatment be given the child, the parents contended that their right to freedom of religion had been contravened. In this instance, however, the Court, for these purposes representing the State, took the view that the right to religious freedom gave way to the need to protect the life of the child.

Other issues arise when commercial developers apply to build upon land and, in so doing, are said by the indigenous people to be threatening the desecration of sites held sacred by them according to their religious beliefs. Generally speaking, commercial interest might be thought to rank behind a matter of religious belief. As the controversy about whether a bridge was to be built to connect Hindmarsh Island to mainland South Australia shows, however, the issues raised by a conflict between commercial and religious matters may prove complex, and the proper outcome may be difficult to determine. Even an inquiry as to the genuineness and the extent of religious belief may involve some impairment of freedom of religion as ALRM v State of South Australia[9] shows. In that case, the Supreme Court of South Australia held that inquiry into the genuineness of the belief of Ngarrindjiri women, notwithstanding that those beliefs were, under Aboriginal rule, confidential to women, was lawful, there being no part of the common law rendering it unlawful.

Anti-discrimination laws are, possibly, a natural outcome of the process of exploring the relative values to be attached to religious freedom and other rights and interests. A State committed to the maintenance of religious freedom would, it seems to me, owe a duty to protect those within it from discrimination in civil society, whether in employment, housing, politics, education, club membership or otherwise, based on the ground of religious adherence. The recognition of such a duty accords with international law[10].

4. POSITION IN AUSTRALIA[11]
   

In its report, Article 18: Freedom of Religion and Belief, (July 1998), the Human Rights and Equal Opportunity said[12]:

Although the great majority of Australians describe themselves as Christian, there are significant religious minorities. Islam is now the second largest religion in Australia. In the 1996 census 1.1% of the population or 200,885 Australians described themselves as Muslim. Large numbers of immigrants from Asia, especially from Vietnam, Cambodia and China, have made Buddhism the third largest religion with 1% of the Australian population or 199,812 people. Judaism came to Australia with the first European settlers. In the 1996 census 0.4% of the population or 79,805 Australian described their religion as Judaism. Hindus constituted 0.3% of the population, that is 67,279 people.

The report went on to note the continued adherence of many Australian and Torres Strait Islander people to traditional beliefs and practices. It noted the presence in Australia of several hundred new religious movements. It also noted an increase from 12.9% in 1991 to 16.8% in 1996 of the population who described themselves as having no religion. In view of these changes, the manner in which the State discharges its duty in relation to freedom of religion in Australia has more than academic interest.

Section 116 of the Commonwealth Constitution prevents the Commonwealth from making any law (1) for “establishing any religion”, or (2) for imposing any religious observance, or (3) for prohibiting the free exercise of religion. Section 116 also provides that “no religious test shall be required as a qualification for any office or public trust under the Commonwealth”. Although there are some significant differences between s 116 and the “freedom of religion clauses” of the First Amendment of the United States Constitution, the First Amendment was, plainly enough, the basis for s 116. There have, however, been found to be major differences between the operation of the Australian and the United States provisions.

The High Court of Australia has said that the only laws which are invalid under the establishment clause are laws which entrench “a religion as a feature of and identified with the body politic”,[13] or those which “constitute a particular religion or religious body as a State religion or State church”,[14] or those which require “statutory recognition of a religion as a national institution”.[15] It was for this reason that the High Court held in the DOGS Case that the anti-establishment clause did not prohibit the Commonwealth from providing financial assistance to schools operated by religious organisations on the same basis as that assistance was provided to other private schools.

The majority in the DOGS Case declined to follow the approach to the anti-establishment clause adopted by the majority of the United States Supreme Court in Everson v Board of Education.[16] In that case, after tracing the historical purpose of the First Amendment, Black J described the clause as preventing federal and state governments from passing laws “which aid one religion, aid all religions, or prefer one religion over another” and as “intended to erect ‘a wall of separation between Church and State’”.[17] Under the anti-establishment clause, the US Supreme Court has held that federal, state and local government may not, directly or indirectly, demonstrate any preference for any religious belief.

As numerous commentators have observed, one possible difficulty with the Australian approach may be that it permits the preferential treatment of one religion over another providing it falls short of the establishment of religion in the sense referred to by the majority in the DOGS Case. That may loom as a larger problem in the future, given that Australian society describes itself as increasingly pluralistic.

Perhaps it does not matter much if the anti-establishment clause has a relatively narrow operation, if the free exercise of religion is well protected, but is it? In The Church of the New Faith v Commissioner of Pay-Roll Tax (Vic)[18] Acting Chief Justice Mason and Justice Brennan affirmed that “[f]reedom of religion, the paradigm freedom of conscience, is of the essence of a free society”. They stressed that minority religions stood in need of especial protection, saying:[19]

Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none ... [T]he variety of religious beliefs which are within the area of legal immunity is not restricted.

That observation accords with international perceptions of the nature of the freedom.

The Church of the New Faith did not, however, turn on s 116, and the Court’s decisions on the protection afforded by the “free exercise” clause are limited in number and, for that reason perhaps, slight in jurisprudential analysis. In the first decision on s 116, Krygger v Williams (1912),[20] the Court declined to hold that the compulsory military service provisions of the Defence Act 1903 prohibited a person, with religious objections to military service, from freely exercising his religion. The then Chief Justice, Sir Samuel Griffith, described such a proposition as “absurd”[21] and added that s 116 only protected

the doing of acts which are done in the practise of religion. To require a man to do a thing which has nothing to do with religion is not prohibiting him from a free exercise of religion.[22]

Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth[23] was a case challenging a Commonwealth declaration, made under the National Security (Subversive Associations) Regulations 1941, that the Jehovah’s Witnesses Inc was an organisation prejudicial to the defence of the Commonwealth and to the efficient prosecution of the war. It was said by the Government of the day that the Jehovah’s Witnesses Inc publicly discouraged its members from participating in the war effort. The Court upheld the legislation upon the basis that the freedom was necessarily qualified by the greater public interest. The guarantee was, so Sir John Latham said, to be qualified in the interest of ensuring the maintenance of civil government and the continued existence of the community.[24] In terms reminiscent of Krygger v Williams, Justice Rich said that the dissolution of the corporation’s structure in consequence of the declaration would not effect the free exercise of religion of any Jehovah’s Witness.[25]

It is probably true to say that, in this country as in the United States, the freedom to believe simpliciter is seen as absolute; and it is the freedom to act in accordance with that belief which is subject to valid restriction imposed by the general law.[26] The very idea of government according to law precludes the possibility that every person may decide upon his or her own standards of conduct in a civil society, depending on their own religious or conscientious preferences.[27]

There is little in the authorities on s 116 to support the thesis that, as in the United States, the government in Australia must demonstrate a “compelling interest” of the “highest order” before interfering with religious conduct: cf Religious Freedom Restoration Act 1993 (US). In applying the compelling interest test, the Supreme Court has held that the imposition of criminal penalties upon Amish parents for refusing to send their children to high school was invalid, the Amish claims being said to be based on “deep religious conviction, shared by an organised group, and intimately related to daily living”.[28] Applying the same test, the Supreme Court also found that the denial of unemployment benefits to a Seventh Day Adventist who was dismissed after she refused to work on Saturday was unconstitutional.[29]

As United States jurisprudence itself shows, the compelling interest test is not the only test which may appropriately be applied in determining whether a law of general application, designed to serve some lawful purpose, should be held invalid by reason of the burden it imposes on the free exercise of religion. But that is not to say that the State can, in some way, avoid weighing claims by believers to free exercise of religion against other interests and that there is no call to set out, by way of law, the measure it applies in determining whether an apprehended violation of freedom of religion is to occur.

It is doubtful whether any such measure (or standard) is adequately stated in Australia. Even the constitutional guarantee of s 116 constrains only the Commonwealth. It does not apply to the States or to local government. At Commonwealth level, some legislation offers limited protection against discrimination on the basis of religious belief.[30] At the State level, only Tasmania provides for freedom of religion under its Constitution.[31] Equal opportunity legislation in Western Australia, Victoria, Queensland, the Australian Capital Territory and the Northern Territory also offers some protection against discrimination on the ground of religion but only in a number of limited situations, as for example, when offering employment or accommodation, providing goods and services, dealing with applications for membership of clubs and professional and trade organisations. The common law, as already noted, affords only a most imperfect protection.

Civil authority which fails to establish adequate measures for the free exercise of religion may fail to discharge its duty to protect sufficiently freedom of religion. As the religious composition of a community becomes more diverse (as in Australia), one might expect any difficiencies in protection to become more acute. The consequences may be serious. If the State fails to discharge its obligations to maintain freedom of religion within a community where there are religious differences and permits that freedom to be impeded, it fails to ensure that all members of its community can participate fully in civil society, whether in political, commercial, artistic, professional, trade, sporting fields or otherwise. The loss is that of the community which the State serves as well as that of the person denied free participation.

5. THE DUTY OF THE BELIEVER
   

Participation by religious people in the life of the community governed by a State which protects religious freedom calls upon them to respect the right of others to pursue their freedom to exercise a different religious belief or commitment. Perhaps, it is for religious people to recognise that they themselves may have but an imperfect understanding and to allow for the possibility that others of a different persuasion may better comprehend an aspect of the truth. Speaking of Christian and Jews, Martin Buber said:[32]

“It is necessary for both you and us to hold inviolably fast to our faith [and it is also] necessary for both of us to show religious respect for the true faith of the other ... to acknowledge the real relationship in which both stand to truth.”

These observations need not be confined to the relation of Jews and Christians.

6. SOCIAL CONSCIENCE AS AN EXPRESSION OF THE BELIEVER’S RIGHT TO PARTICIPATE FULLY IN SOCIETY
   

I have thus far spoken of the State’s duty to maintain religious freedom (and of the believer’s duty to respect the religious commitment of others). As Stephen Jay Gould pointed out in his essay “A Visit to Dayton”,[33] tolerance in the latter sense is not always enough. There comes a point when an individual’s sense of responsibility for justice denied another calls for other positive action. Indeed, if it is accepted that fundamental rights arise by virtue of the dignity of shared humanity, so that each person owes and is owed reciprocal rights and duties in relation to each other, then each person is responsible for the denial of any fundamental right to another. Social conscience ceases, in this case, to be merely an armchair concern looked after by someone else: it becomes the direct responsibility of each member of the community. In this case no one person or institution is the keeper of the community’s social conscience. It is the concern of all.

In democratic states like Australia, the State itself relies partly on its own constituent parts to discharge its social conscience. Parliament, the Executive and the Judiciary all play a part, although the role of the Judiciary is necessarily limited to that which can be done according to law. (In this context, the law may be seen as a limited expression of the State’s social conscience.)

There are, as history makes plain, occasions when the State’s social conscience fails. Such at least was the condition of the State of South Africa until recently.[34] As one judge of the Appellant Division of South Africa said, judges themselves had failed in their duty to “express unequivocally our displeasure at having to apply and enforce discriminatory and unjust laws”.[35] There is, therefore, a continuing need for members of the community, in company with others or alone, to exercise their own conscience with regard to social matters. Social conscience cannot, it seems, be delegated.

The State’s invitation to the religious community to participate fully within civil society must include the invitation to communicate the ethical and moral appreciations which religious belief yields. And whilst the religiously committed must observe the constraint to accept the freedom of others to differ in religious commitment, they may also choose, without dishonouring the State’s invitation, to agitate for social action which is consistent with the ethical and moral precepts of religious belief. Plainly enough, it may be the strength of belief in a transcendent reality which enables the religious person to see things differently from others and to act in the face of majority opposition. There are ample examples in the history books.

Let us take, for example, the history of eugenics. Prior to the First World War, advocates of eugenics were principally well-informed scientists and other intellectuals who preached the eugenic inferiority of certain racial and social groups. They devalued environment as a significant influence on “eugenic fitness”, preferring to see heredity as the prime factor. Between the wars, penalties were imposed in many social democratic States upon individuals who were seen as mentally and socially deficient. In Scandinavia, in the 1930’s, eugenicists caused legislation to be passed that led to the institutionalisation of many hundreds of thousands of “mental defectives”, as well as the sterilisation of nearly 90,000 “mental deficients”. In the United States, through the 1920’s, the national sterilisation rate annually ran between 2 and 4 per 100,000. By the end of the thirties, the rate had climbed to 20 per 100,000. The national sterilisation total reached almost 36,000 by 1941.[36]

The Supreme Court of the United States held in Buck v Bell (1927)[37] that the sterilisation of Carrie Buck on eugenic grounds was not unconstitutional. An account of the case is given by Kevles in his book In the Name of Eugenics.[38] Kevles records that Carrie’s mother, Emma, had lived in the Virginia Colony for Epileptics and Feeble-minded, in Lynchburg, since 1920. Eighteen at the time of trial, Carrie had herself given birth to a daughter, Vivian. At seven months of age, Vivian was said to have “a look” which was “not quite normal”. Justice Oliver Wendell Holmes, who considered science might be a guide to social action, declared:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices [sexual sterilisation], often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. ... . The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ... Three generations of imbeciles are enough.[39]

As Kevles reports, the IQ tests used in the Buck Case have long since been discredited “as indicators purely of general intelligence”. Kevles reports that Carrie’s daughter, Vivian, went through to the second grade of primary school before she died of an intestinal disorder in 1932, and that her teachers “reportedly considered her very bright”.

Even in Australia, the eugenics movement held sway. In Victoria, in 1926, 1929 and again in 1939, Bills to deal with mental deficiency were passed by the Legislative Assembly and, in the case of the 1939 Bill, both Legislative Assembly and the Legislative Council, though the 1939 Bill was never proclaimed.[40]

Opposition to the eugenics movement was limited. Overseas, Catholics opposed it, and G K Chesterton did his best to stem the tide. In Victoria, the Catholic press took a similar view when The Advocate of 26 September 1929 argued that “mental deficiency is no more inherited than wooden legs” and that scientists would be better off clearing the slums.[41] What was seen by many contemporaries to be an old-fashioned, unreasonable opposition to the progress of humanity along scientific lines is now seen, with the benefit of hindsight, to be a reasonable, humane and entirely justified representation.

That it is the strength of religious commitment that is capable of permitting the believer to stand against the many does not, of course, diminish the probity of the social criticism. Nor, of course, does it validate it.

It seems to me that the religious person and the State must live with the risk that the religious person will, like Franz Jagerstatter, determine at some point that conscience, informed by religious commitment, prevents compliance with State edict. The Reverend Martin Luther King Jr reached such a point when he urged civil disobedience to the United States segregation statutes. Gandhi, of course, also reached the point. The risk is much diminished when the State observes the duty to protect freedom of religion. In so doing, it diminishes the possibility of conflict between it and religious conscience on social matters, not only by removing impediments to religious belief and observance but also by permitting dialogue between religion and the State. From the viewpoint of a religious person, there is also the opportunity to communicate the moral and ethical precepts upon which religious belief may be founded, and to persuade civil society of the value of those precepts and the wrongful failure of society to conform to them. As Gould reminds us, this may become a matter of life and death even for the non-religious. At the conclusion of his “A Visit to Dayton”, Gould says:

And who can read the famous words of Protestant theologian Martin Niemoller without a shudder:

First the Nazis went after the Jews, but I wasn’t a Jew, so I did not react. Then they went after the Catholics, but I wasn’t a Catholic, so I did not object. Then they went after the workers, so I didn’t stand up. Then they went after the Protestant clergy and by then it was too late for anyone to stand up.

That it will be too late is a risk we all run.

7. SUMMARY
   

In its report on Article 18, the Human Rights and Equal Opportunity Commission recommended that the Commonwealth Parliament enact religious freedom legislation which would (1) recognise and give effect to freedom of religion and belief in Australia, and (2) make unlawful direct and indirect discrimination on the ground of religion and belief in areas of public life. The Commission recommended only two exemptions broadly reflecting the position at international law. It recommended that, in the nature of things, “religion and belief” should be broadly defined, to encompass theistic, non-theistic and other beliefs, including traditional belief systems of indigenous people. It follows from what I have said that I would consider that there is much to be said for the recommendations of that report.

---

[1] A Donagan, The Theory of Morality, pp 14-17; Newton Garver, “Introducing Philosophy”, in T Kasachkoff (ed.), In the Socratic Tradition, pp 11-12.
[2] See, e.g., K Boyle and J Sheen (ed.), Freedom of Religion and Belief. A World Report (1997).
[3] T. Jefferson, “Reply to the Danbury Baptist Association, 1802” in A. Adams and C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses (1990), p 112.
[4] Vatican Council II Dignitatis Humanae (Declaration on Religious Freedom), quoted in David Hollenbach, SJ “A communitarian reconstruction of human rights: contributions from Catholic tradition” in R. Bruce Douglass & David Hollenbach, Catholic Liberalism (Cambridge University Press, 1994), p 127.
[5] John Finnis, Natural Law and Natural Rights (Clarendon Law Series, 1980), p 261.
[6] 1981 UNGA Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 6.
[7] A P Elkin “The Practical Value of Anthropology III” (1929) 9 The Morpeth Review 33.
[8] 122 DLR (4d) 1
[9] (1995) EOC 92759.
[10] ICCPR, Articles 2 and 26 and 1981 UNGA Declaration on the Elimination on All Forms of Intolerance and of Discrimination Based on Religion or Belief, Articles 2 and 3.
[11] See, for a more detailed discussion, Stephen McLeish, “Making Sense of Religion and the Constitution: A Fresh Start for Section 116” [1992] MonashULawRw 10; (1992) 18 Monash University Law Review 207.
[12] Human Rights and Equal Opportunity Commission, Article 18: Freedom of Religion and Belief (July 1998), p 9.
[13] Attorney-General (Vic), Ex Rel Black v Commonwealth [commonly referred to as the DOGS Case] (1981) 146 CLR 559, at 582 per Barwick CJ.
[14] 146 CLR 559, at 597 per Gibbs J.
[15] 146 CLR 559 at 653 per Wilson J.
[16] [1947] USSC 44; 330 US 1 (1947).
[17] [1947] USSC 44; 330 US 1, at 15-16.
[18] [1983] HCA 40; (1983) 154 CLR 120 at 130.
[19] [1983] HCA 40; 154 CLR 120 at 132.
[20] [1912] HCA 65; 15 CLR 366.
[21] [1912] HCA 65; 15 CLR 366, at 371.
[22] 15 CLR 361, at 369.
[23] [1943] HCA 12; (1943) 67 CLR 116.
[24] [1943] HCA 12; (1943) 67 CLR 116, at 131-2.
[25] [1943] HCA 12; 67 CLR 116, at 149.
[26] See The Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) [1983] HCA 40; (1983) 154 CLR 120, at 135-6.
[27] Difficulties inherent in the action – belief approach are for another day: see, for example Gabriel Moens “The Action-Belief Dichotomy and Freedom of Religion” [1989] SydLawRw 9; (1989) 12 Sydney Law Review 195.
[28] See Wisconsin v Yoder [1972] USSC 102; 406 US 205, at 216 (1972).
[29] Sherbert v Verner 374 US 398 (1963).
[30] See, for example, The Human Rights and Equal Opportunity Act 1986, The Racial Discrimination Act 1975, and The Racial Hatred Act 1995.
[31] See Constitution Act 1934 (Tas), s 46.
[32] Quoted in Sanger, Jews and Christians, p 59.
[33] Hen’s Teeth and Horse’s Toes (Penguin 1983), p 278, on the test case challenging a Tennessee law banning the teaching of Darwinism..
[34] M Kirby, “Lawyers in an Unjust Society – Reflections on a Conference of the Legal Resources Centre of South Africa” (1989) 13 Bulletin of the Australian Society of Legal Philosophy 30.
[35] Ibid, 61.
[36] Daniel J Kevles, In the Name of Eugenics: and the Uses of Human Heredity (New York, 1985), pp 116, 120; Rob Watts, “Beyond Nature and Nurture: Eugenics and Twentieth Century Australian History” (1994) 40 Australian Journal of Politics and History, p 319; Ross L. Jones, ‘The Master Potter and the Rejected Pots: Eugenic Legislation in Victoria 1918–1939’, Australian Historical Studies, vol. 30, no. 113, October 1999.
[37] [1927] USSC 105; 274 US 200
[38] In the Name of Eugenics: Genetics and the Uses of Human Heredity, p 110-112.
[39] [1927] USSC 105; 274 US 200, at 208.
[40] R L Jones, Op. cit.
[41] Ibid