Journal Article

Secularization by law? The establishment clauses and religion in the public square in Australia and the United States

Augusto Zimmermann and Lael Daniel Weinberger

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 10, issue 1, pages 208-241
Published in print January 2012 | ISSN: 1474-2640
Published online January 2012 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mor077
Secularization by law? The establishment clauses and religion in the public square in Australia and the United States

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While there is an enormous body of case law and literature on the American establishment clause, there has been considerably less attention devoted to its Australian counterpart. As Australia is confronting the question of what role religion should play in public life, the Australian establishment clause is likely to become caught up in controversies similar to its American counterpart.

The argument in this article is, first, that religion historically had a place in the public square in both the U.S. and Australia, and, second, that the U.S. and Australian constitutions never repudiated this tradition. Third, this article argues that the Australian establishment clause is interpreted and applied today in a way that is very similar to the way the U.S. establishment clause was understood in the early Republic, before the modern era of Supreme Court decisions on the subject began in the mid-twentieth century. The U.S. Supreme Court has departed further from the early positions on establishment than has its Australian counterpart. Finally, this article argues that the U.S. decisions tend to reflect a modern “culture of disbelief,” moving the culture toward privatization of religion. Australian courts have so far resisted the pressure to follow the American path of encouraging the privatization of religion through establishment clause jurisprudence (even though, ironically, religion holds a less prominent place in Australian culture than it does in the U.S.). While it is likely that there will be increased pressure on the Australian courts to do precisely this in the near future, this article argues that this would be a mistake.

Journal Article.  17193 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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