Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-28T17:14:18.511Z Has data issue: false hasContentIssue false
  • English
  • Français

A Christian State? A Comment

Published online by Cambridge University Press:  24 April 2015

Reid Mortensen
Get access Rights & Permissions [Opens in a new window]

Extract

Dr. George Carey, the Archbishop of Canterbury, told a congregation in Melbourne's St. Paul's Cathedral that he had recently received a letter addressed to “Jesus Christ, care of the Holy Trinity, Father, Son and Holy Spirit, the Heavenly Kingdom.” It had been posted in the United States, but found its way to London. There, a postman, understandably a little unsure as to where the letter should go, had marked the envelope, “Try Lambeth Palace!” Under the public law of England, his was actually a most reasonable course for a civil servant to take. The Church of England is established by law, so if any official question relating to God must be decided, the law presumes that the Church of England is best placed to answer it. The law in New Zealand and Australia is different. Even if the inherited public law in both countries requires the Head of State to be an Anglican, that is where the religious establishment ends. The public law is otherwise agnostic: it makes no judgment about the orthodox and heterodox, and it does not recognize an established church. In these countries, the envelope would lie in a dead letter office, and the correspondent would have been wiser to pray.

Type
New Zealand Symposium
Information
Journal of Law and Religion , Volume 13 , Issue 2 , 1998 , pp. 509 - 515
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Este, J., Son Never Sets on Britain, in The Australian, 07 28, 1997, 10 (1997)Google Scholar.

2. Coronation Oat Act 1689 (Eng) § 3; Act of Settlement 1700 (Eng) §§ 1-3; Princess Sophia of Hanover's Precedence Act 1711 (UK).

3. Compare Watson v Jones, 80 US 679, 728 (1872); and see Baldwin v Pascoe, 7 NZLR 759, 769-70 (1889); Gregory v Bishop of Waiapu, 1 NZLR 705, 708 (1975); Glebe Administration Board v Commissioner of Pay-roll Tax, 10 NSWLR 352, 357 (1987).

4. Eliot, T.S., The Idea of a Christian Society in Christianity and Culture: The Centenary Edition at 36 (Harvest/HBJ, 1988)Google Scholar.

5. Ogilvie, Compare M.H., What is a Church by Law Established? 28 Osgoode Hall Law J 179 at 183, 227-8, 291 & 234 (1990)Google Scholar.

6. However, note that the beginnings of these establishments probably predate denominationalism, and to some extent establishment itself has informed the peculiar character of Anglicanism and Scottish Presbyterianism.

7. Pfeffer, Leo, Church State and Freedom 79–80 (Beacon Press, 1967)Google Scholar.

8. That is the assessment of Roper, J in Attorney General v Wylde. 48 SR (NSW) 366, 3802 (1948)Google Scholar; and, on appeal, Dixon J in Wylde v Attorney-General, (NSW) (ex rel Ashelford) 78 CLR 224, 284-5 (1948).

9. Church Building Act 1837 (NSW) (7 Will 4 no 3); English Church Temporalities Act 1837 (NSW) (8 Will 4 no 7).

10. Supremacy of the Crown Act (1534) (Eng); Act of Settlement 1700 (Eng) § 3; Bishoprics Act 1878 (UK) § 5; R v Chief Stipendiary Magistrate; ex parte Choudhury, 3 WLR 986, 998–99 (1990)Google Scholar.

11. For a definition of an established church in the abstract, see Attorney-General (Victoria) (ex rel Black) v Commonwealth of Australia, 146 CLR 559, 582 (1981)Google Scholar.

12. Appointments of Bishops Act 1533 (Eng) §§ 3-5; De-la-Noy, Michael, The Church of England at 64–70 (Simon & Shuster, 1993)Google Scholar.

13. Lyall, Francis, Of Presbyters and Kings: Church and State in the Law of Scotland at 21–53 (Aberdeen U Press, 1980)Google Scholar; Earl of Kinnoull v Presbytery of Auchterarder, 16 S 661 (1838); Presbytery of Strathbogie v Cruickshank, 2 D 258 (1840); Cuninghame v Presbytery of Irvine, 5 D 427 (1843); compare Church of Scotland Act 1921 (UK) § 1.

14. Coleridge, S.T., On the Constitution of Church and State According to the Idea of Each at 33–4 (Dent, 1972)Google Scholar; Arnold, T., Principles of Church Reform (1833)Google Scholar; Lindhardt, P.G., Grundtvig at 79–81 (SPCK, 1951)Google Scholar.

15. See Coleridge, , On the Constitution of Church and State 44 (cited in note 14)Google Scholar.

16. Preamble, Commonwealth of Australia Constitution Act 1900 (UK).

17. Preamble, Charter of Rights and Freedoms 1981 (Canada).

18. Preamble, Constitution of the Independent State of Papua New Guinea 1975 (PNG).

19. Church of the Holy Trinity v United States, 1433 US 457, 465 & 471 (1891); Zorach v Clauson, 343 US 306, 313 (1952).

20. R v Taylor, 1 Vent 293 (1677); Thomas Paterson, 1 Broun 629 (1843); Vidal v Girard's Executors, 2 How 127, 198-9 (1844); Pringle v Town of Napanee, 43 UCQBR 285 (1878); R v Darling. 5 NSWR 405 (1884).

21. For example, Bird v Jones. 4 Bing 628 (1828).

22. Bowman v Secular Society Limited, AC 406, 446 & 477 (1917); see also Zylberberg v Sudbury Board of Education, 52 DLR (4th) 577 (1988).

23. Barth, K, Church and State in Community, State, and Church at 144–5 (Peter Smith, 1968)Google Scholar.

24. 18 DLR (4th) 321(1985).

25. Id at 354.

26. R v Edwards Books & Art Limited, 2 SCR 713 (1986).

27. That is not the case in Australia. There are no constitutional restrictions on the States that prevent them from granting special privileges to particular religious groups, or even creating State churches. Even the federal Parliament can pass laws that give preferential treatment to some religious groups over others: Attorney-General (Victoria) (ex rel Black) v Commonwealth of Australia, 146 CLR 559, 612, 613, 617 & 653 (1981)Google Scholar. In Canada, § 93 Constitution Act 1867 (UK & Canada) preserves privileged assistance for Catholic and some Protestant schools that are not enjoyed by independent church groups, Adler v Ontario, 3 SCR 609 (1996)Google Scholar.

28. Acts 18:17Google Scholar.