A Christian State?

Journal of Law and Religion

Volumn 13, Issue 2, 1998, Pages 453-482

  Ahdar, Rex J ^a  

^a UNIVERSITY OF OTAGO   (New Zealand)

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EID: 84856201329     PISSN: 07480814     EISSN: 21633088     Source Type: Journal    
DOI: 10.2307/1051480     Document Type: Article

References (149)

1. Some argue “the idea of a ‘Christian nation’ is a very ambiguous concept which is usually harmful to effective Christian action in society.” Mark Noll, Nathan Hatch & George Marsden, The Search for Christian America at 17 (1983) (quoted in Hauerwas, cited in note 57).
2. T.S. Eliot, The Idea of a Christian Society 26 (1939).
3. Richard Mulgan, Politics in New Zealand 2 (1994).
4. See also Elizabeth McLeay, The State in New Zealand in Hyam Gold, ed, New Zealand Politics in Perspective, 3d ed ch 25 (1992).
5. Leo Pfeffer, Church, State and Freedom, 26 (rev ed, 1967).
6. Regulating Religious and Cultural Conflict in Postmodern America: A Reply to Professor Perry, 76 Iowa L Rev 1067 at 1097 (1991).
7. Eliot, Idea of a Christian Society at 26 (cited in note 2).
8. James E. Wood, An Apologia for Religious Human Rights in J. Witte & J.D. van der Vyver, eds, Religious Human Rights in Global Perspective 470 (1996).
9. John M. Swomley, Religious Liberty in the Secular State 7 (1987).
10. Muldoon J. in O'Sullivan v Canada 84 D. L Rev (4th) 124 at 134 (1991) adding “with one exception, founded on pure reason.” Later (at 138) he explains: “The exception requires the state to intervene to prevent the practice or expression of conscience and religion from causing harm to others physically or mentally, or from violating the constitutionally guaranteed rights of others.”
11. See Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stanford L Rev 233 at 310–12 (1989).
12. W.R. Kirk, The History of the Relations between Church and State in New Zealand, unpub MA thesis, U of Otago 3 (1942).
13. Quoted in John A. Evans, Church State Relations in New Zealand 1940–1990, with particular reference to the Presbyterian and Methodist Churches, unpublished PhD thesis, U of Otago at (1992).
14. See J. Hight & H.D. Bamford, The Constitutional History of New Zealand 378 (1914).
15. This was confirmed recently by the Court of Appeal: Mabon v Conference of the Methodist Church of New Zealand 3 N.Z. L Rev 513–23 per Richardson P. (1998).
16. Carrigan v Redwood 30 N.Z. L Rev 244 at 253 per Cooper J. (1910).
17. See also Public Trustee v Commissioner of Stamps 26 N.Z. L Rev 773 at 779 (Sup Ct) per Cooper J. again, for his earlier statement (1907). The Court of Appeal affirmed this judgment. Id.
18. Peter Lineham, Freethinkers in Nineteenth-Century New Zealand 19 N.Z. J History 61 at 71(1985).
19. Lloyd Geering, New Zealand Enters the Secular Age in Christopher Nichol & James Veitch, eds, Religion in New Zealand 165 (Victoria U Tertiary Studies Programme 2d ed, 1983).
20. Presidential address to the Otago Education Institute (1879). Quoted by D.V. Mac-Donald, The New Zealand Bible in Schools League, unpub MA thesis, VUW
21. see Evans, PhD thesis at 3 fn 10 (cited in note 11).
22. Lineham, Freethinkers at 62 (cited in note 14).
23. Section 347(e) of the Municipal Corporations Act 1908 provided: “Inasmuch as it is inexpedient that questions of religion or morals should be regulated by by-law, no by-law shall be valid if a breach thereof would involve a breach only of some religious or moral rule.”
24. Lineham, Freethinkers, 76 (cited in note 14).
25. See generally G.A. Wood, Church and State in New Zealand in the 1850s. 8 J Relig Hist 255 (1975).
26. N.Z. Parliamentary Debates 6 (1854–1855) (emphasis added).
27. Id at 512.
28. Ian Breward, Godless Schools? A Study of Protestant Reactions to Secular Education in New Zealand 18 (1967). While doctrinaire secularism may not have been the major impetus, secularists and rationalists, such as Alfred Domett and Robert Stout, were nonetheless at the fringes exercising some influence.
29. Domett (quoted in Breward at 7) warned: “by placing the mighty machinery of education exclusively in the hands of ecclesiastics, it affords opportunities, whether likely to be laid hold or not, for the exercise of priestcraft and the gradual renewal of the subjection of the human mind, to its influence …”
30. Breward notes, id at 103, that Stout was “the most influential proponent” of the view that secular education was “a mighty weapon against survivals of superstition.”
31. Wood, An Apologia at 474 (cited in note 7).
32. Religion and Legitimation in New Zealand: Redefining the Relationship Between Church and State 3 Brit Rev of N.Z. Studies 52 (1990).
33. James Davison Hunter, Religious Freedom and the Challenge of Modern Pluralism in James Davison Hunter & Os Guinness, eds, Articles of Faith, Articles of Peace at 55 and 71 (1990).
34. See also José Casanova, Public Religions in the Modern World ch 6 (1994) for a recent discussion of the decline of the Protestant “cultural hegemony” in America in the late twentieth century.
35. Philip Wogaman, Protestant Faith and Religious Liberty at 194 (1967) (quoting Martin E. Marty).
36. This ingenious scheme was the brainchild of Nelson clergyman the Rev. J.H. McKenzie and commenced in 1897. It was argued that as schools were open for five hours a day, three in the morning and two in the afternoon, a school might declare either the first or last hour of the morning as one designated for voluntary religious instruction. This was possible under the 1877 Education Act since that legislation allowed school buildings to be used on days and at hours other than those used for public school purposes. The sharp-witted realised this enabled religious instruction as well as the statutory minimum four hours of secular education to take place within the customary school hours. The Education Act 1964, which repeated the secular clause (see § 77), simply formalised this long-standing arrangement. Under § 78 voluntary religious instructors were permitted by state primary school boards to give religious instruction during school hours with parents and guardians, under § 79, having the right to withdraw their children from such instruction if they so wished.
37. See generally Colin McGeorge, On the Origins of the Nelson System of Religious Education in Bryan Gilling, ed, Godly Schools? Some Approaches to Christian Education in New Zealand at 1–16 (1993)
38. Breward, Godless Schools ? at 37 (cited in note 24).
39. I.L.M. Richardson, Religion and the Law at 61 (Sweet & Maxwell, 1962).
40. See Vodanovich, Religion and Legitimation at 52 (cited in note 26).
41. Here I draw from José Casanova, Public Religions, ch 6 and his argument that the United States has experienced “three consecutive processes of disestablishment” (at 135). The first was the constitutional one which gave rise to the First Amendment. The second one, he argues, was the secularisation of higher education beginning last century following the Civil War. The ‘third disestablishment’ is the “disestablishment of the Protestant ethic and the emergence of a legally protected pluralistic system of norms in the public sphere of American civil society.” (at 155).
42. Rev. Murray Robertson, New Zealand as a Mission Field: The Paradigm Shift in Bruce Patrick, ed, The Vision New Zealand Congress at 46 (Vision New Zealand 1993) urges: “I believe God wants us to see that a nation that has been nominally Christian since its founding is now a post-Christian society, and we are engaged in a mission…. It has happened over the last 30 years. … A shift has occurred. There have been long-term trends, huge subterranean movements within Western culture … in the church we haven't grasped what has happened, and by and large we are still operating with the kind of mentality we had prior to the 1960s.”
43. Bishop Brian Carrell argues the 1960s was “to be the decade in which the form of Christianity identified with European nations for over 1300 years, and with their former colonies such as New Zealand for more than a century, began to go into rapid decline. This decade would in fact witness the demise of Christendom, arguably a more obvious end in this country than in any other Western nation.” Brian Carrell, New Culture. New Challenge in Bruce Patrick, ed, New Vision New Zealand at 49 (Vision New Zealand 1993).
44. Bruce Patrick, After the 1997 Congress, in Bruce Patrick, ed, The Vision New Zealand Congress 1997 at 32 and 33 (Vision New Zealand 1997).
45. A term used by the United States Supreme Court on occasions, see Lynch v Donnelly. 465 US 668, 716 (1984)
46. County of Allegheny v ACLU, 492 US 573, 596 (1989).
47. See further Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism 96, Colum L Rev 2083 (1996).
48. Standing Orders require the prayer to be said. The wording of the current prayer was settled in 1962 but is not written into the Standing Orders nor is it regarded as binding on the Speaker. It reads: “Almighty God, humbly acknowledging our need for Thy guidance in all things, and laying aside all private and personal interests, we beseech Thee to grant that we may always conduct the affairs of this House and of our country to the glory of Thy Holy name, the maintenance of true religion and justice, the honour of the Queen, and the public welfare, peace, and tranquillity of New Zealand, through Jesus Christ our Lord. Amen.” David McGee, Parliamentary Practice in New Zealand, 2d ed 05 (1994).
49. See Oaths and Declarations Act 1957 § 3 (oath on the Bible, New Testament or Old Testament) and § 4 (right to make an affirmation instead of an oath). A review of the law governing oaths is being currently undertaken by the Ministry of Justice.
50. See the Holidays Act § 7A (1981).
51. See the Royal Titles Act § 2 (1974).
52. The Crimes Act § 123 (1961). A prosecution needs the leave of the Attorney-General: § 123(4).
53. The only prosecution (unsuccessful) in New Zealand under the section was R. v Glover, 185 GL Rev (1922).
54. The Local Government Act § 603 (1974).
55. The Shop Trading Hours Act Repeal Act (1990)
56. repealed the former Sunday (and Saturday) restriction found in the Shop Trading Act § 11(1) (1977).
57. See Retailers Face Action for Trading over Easter, Otago Daily Times, (March 29, 1997). Nine garden centres faced prosecution.
58. Under § 5 of the Shop Trading Hours Act Repeal Act 1990 contravention is a summary offence with a maximum fine of $1000.
59. See Virgin Statue on Show Despite Attack, Sunday Star-Times at A2 (March 8, 1998)
60. Violent and Personal Threats to Museum Staff over ‘Virgin,’ Otago Daily Times at 2 (March 10, 1998)
61. Virgin Statue Stays—Protests Ignored, Sunday Star-Times at A1 (March 15, 1998)
62. Te Papa's Fingers Burnt in Outrage over Condom Art, id at A5. The statue was by British artist, Tania Kovats, while the painting, entitled Wrecked, was by Sam Taylor Woods; both works appearing in the exhibition, Pictura Britannica. The statue was repeatedly attacked, but not destroyed, over the ensuing weeks, leading to arrests of three protesters on three separate occasions. Protests were not confined to Roman Catholics (although these made up the majority). For example, the Rev. Graham Capill, the leader of the Christian Heritage Party (a political party largely of Reformed theological persuasion) protested, as did Muslim leaders.
63. See No Prosecution over Exhibits, Otago Daily Times at 35 (March 28, 1998). National Party MP, John Banks, and Fr P. Denzil Meuli had sought permission to prosecute under § 123 of the Crimes Act. Solicitor-General, John McGrath, refused the Crown's consent saying the principle of freedom of expression was the main factor against allowing prosecutions to proceed.
64. Quitter v Attorney-General, N.Z.F. L Rev 481 (HC) (1996)
65. affirmed by the Court of Appeal: 1 N.Z. L Rev 523 (CA 1998). The case involved an unsuccessful attempt by three lesbian couples to secure a declaration that same-sex couples were lawfully entitled to obtain a marriage licence and marry under the Marriage Act 1955.
66. A bill, the De Facto Relationships (Property) Bill, was introduced by the Government on March 24, 1998 to cover de facto couples and their distribution of their property after a split. Couples who have lived in a relationship in the nature of marriage for at least three years will eligible for the equal sharing of their property following separation or death of one of the partners. The bill does not extend to de facto couples of the same sex.
67. In 1996 there were 14,805 abortions performed in New Zealand, whereas in 1990 there were 11, 173 abortions and in 1994, 12 835. See Report of the Abortion Supervisory Committee at 20 (for the year ended June 30, 1997).
68. See the Human Rights Act § 21 (1993).
69. Adrian Hastings, Church and Slate—The English Experience at 8 (U Exeter Press, 1991).
70. A Christian Critique of Christian America in J. Roland Pennock & John W. Chapman, eds, Religion. Morality and the Law: NOMOS XXX at 121 (1988).
71. See also Francis A. Schaeffer, A Christian Manifesto 121 (1981): “The whole ‘Constantine mentality’ from the fourth century up to our day was a mistake. … Making Christianity the official state religion opened the way for confusion till our own day.”
72. Stanley Hauerwas, A Christian Critique 124
73. (quoting John Howard Yoder, The Priestly Kingdom: Social Ethics as Gospel at 158) (1984).
74. For discussion of the last development see Carl E. Braaten & Robert W. Jenson, Either/Or: The Gospel or Neopaganism (1995).
75. Roger Scruton, What is Conservatism? in Roger Scruton, ed, Conservative Texts: An Anthology at 27 and 28 (1991).
76. T. Mahoney, ed, Reflections on the Revolution in France at 102 (1790, 1955 ed).
77. Quoted in Stephen Mott, A Christian Perspective on Political Thought 117 (1993).
78. George Washington, Farewell Address (September 17, 1796). Reproduced, in part, in Arlin M. Adams & Charles J. Emmerich, A Nation Dedicated to Religious Liberty 114 (App 1) (1990).
79. Peter L. Berger, Afterword in Hunter & Guinness, eds, Articles of Faith at 117 (cited in note 27).
80. Hastings, Church and State at 64 (cited in note 53).
81. Tariq Modood, Establishment, Multiculturalism and British Citizenship 65 Political Q 53 at 63 (1994).
82. Modood, ironically, cites Dr Jonathan Sacks, Chief Rabbi of the United Hebrew Congregation and distils his (Sacks') argument as follows: (i) in the context of massive but incomplete secularisation, the fate of all religions, minority and majority, hang together; (ii) moreover, diversity requires that there also be an over-arching public culture; (iii) if this public culture is to have a religious dimension, it will be that of the premier religion, which for historical reasons is the Church of England, consequently all minorities ought to support it as a national institution. Id at 63–64.
83. Sacks' book is, The Persistence of Faith: Morality and Society in a Secular Age (1991).
84. Id at 72–73.
85. See, for example, Schaeffer, Christian Manifesto at 120–121(cited in note 56): “In the Old Testament there was a theocracy commanded by God. In the New Testament, with the church being made up of Jews and Gentiles, and spreading over all the known world from India to Spain in one generation, the church was its own entity. There is no New Testament basis for a linking of church and state until Christ, the King returns.”
86. The Bloudy Tenent, of Persecution for Cause of Conscience Discussed in Wood, An Apologia 473 (1644).
87. A Letter Concerning Toleration [Epistola de Tolerantia] (1689) in John Horton & Susan Mendus, eds, John Locke, A Letter Concerning Toleration—In Focus 39–40 (1991) (emphasis added).
88. Noll et al at 17
89. quoted in Hauerwas, A Christian Critique at 127 n 1 (cited in note 57).
90. Stenhouse, The History of the Christian Movement in New Zealand, in Bruce Patrick, ed, New Vision New Zealand at 36–37 (Vision New Zealand 1993).
91. New Zealand historians have noted the markedly lower rate of church attendance by New Zealand Christians last century compared with those in Britain and even those in the penal colony, New South Wales (Australia): see Hugh R. Jackson, Churchgoing in Nineteenth-Century New Zealand 17 N.Z. J History 43 (1983).
92. See similarly Alan K. Davidson & Peter J. Lineham, Transplanted Christianity 91 (1987): “The general attitude of Pakeha New Zealanders towards religious commitment was somewhat apathetic.”
93. The Great Case of Liberty of Conscience (1671)in Adams & Emmerich at 101 (App 1) (cited in note 61).
94. Yoder at 165–66.
95. Quoted in Hauerwas at 125.
96. Memorial and Remonstrance Against Religious Assessments para 7 (1785) in Adams & Emmerich, A Nation Dedicated at 107 (App 1) (cited in note 61).
97. Id at 106.
98. Geering, Secular Age at 170–71 (cited in note 15) (underlining in original; italics supplied).
99. Jonathan Boston, Christianity in the Public Square in Jonathan Boston & Alan Cameron, eds, Voices for Justice: Church, Law and State in New Zealand 33 n 1 (1994).
100. Id at 13.
101. The inaugural Vision New Zealand Congress was held at Waikanae on January 25–28, 1993. About 300 Christians attended including “heads of denominations, ministers, pastors, lay leaders, theologians, educationalists, service agency leaders and people from many other spheres of life and Christian service. Nearly every denomination was represented.”: The Waikanae Declaration 1993 in Bruce Patrick, ed, The Vision New Zealand Congress 1993 at 13 (Vision New Zealand 1993).
102. The second Vision New Zealand Congress also saw around 300 Christians meet at Waikanae from January 20–24, 1997, including, for the first time, a “strong Catholic delegation”: Bruce Patrick, ed, The Vision New Zealand Congress 1997 at 26–27 (Vision New Zealand 1997).
103. The Challenge of Modern Pluralism in Hunter & Guinness, eds, Articles of Faith 57 (cited in note 27).
104. J.D. Hunter, Culture Wars: The Struggle to Define America 44–5 (1991) (italics in original omitted).
105. Id at 44 (italics in original omitted).
106. Vodanovich, Religion and Legitimation 60 and 61 (cited in note 26).
107. Referring to the American scene, Douglas Laycock believes that “the conflict between traditional religious believers and those who are fearful of or hostile to traditional beliefs is one of the central social divides of our time.”: Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformational Era and the Late Twentieth Century 80 Minn L Rev 1047 at 1079 (1996).
108. See the excellent essay by John Evans, The New Christian Right in New Zealand in Bryan Gilling, ed, “Be Ye Separate ”: Fundamentalism and the New Zealand Experience 85–86 (U Waikato/Colcomb Press 1992).
109. For discussion of the Death with Dignity Bill 1995, see Ahdar, Religious Parliamentarians and Euthanasia: A Window into Church and State in New Zealand 38 J Church & State 569 (1996).
110. The Coalition gained 4.3 percent of the votes, narrowly missing the 5 percent threshold necessary for the gaining of a party list MP under the newly-introduced proportional representation electoral system, MMP (Mixed Member Proportional). For a detailed analysis of the performance at the 1996 Election and the future of Christian political parties in New Zealand generally, see Jonathan Boston, “Christian Political Parties and MMP” in Rex Ahdar and John Stenhouse, eds, God and Government: The New Zealand Experience (forthcoming 2000).
111. Peter Jones, The Idea of the Neutral State in Robert E. Goodin & Andrew Reeve, eds, Liberal Neutrality 11 (1989) (italics in original).
112. Charles Taylor, Philosophical Arguments 186 (1995). Taylor is a critic of liberal theory it should be noted. Principal modern liberal theorists include Rawls, Dworkin, Waldron and Ackerman.
113. Robert Stout, Religion and the State, A New Year's address delivered at the Unitarian Free Church, January 4, 1914, at 4 and 5 (on file with author).
114. On references to deity in constitutional preambles internationally, see George Winter-ton, A New Constitutional Preamble 8 Public L Rev 186 (1997). A highly-Christian one is the preamble to the Constitution of Western Samoa 1960. It begins: “In the Holy Name of God, the Almighty, the Everloving: Whereas sovereignty over the Universe belongs to the Omnipresent God alone, and the authority to be exercised by the people of Western Samoa within the limits prescribed by His commandments is a sacred heritage; Whereas the Leaders of Western Samoa have declared that Western Samoa should be an Independent State based on Christian principles and Samoan custom and tradition…”.
115. The Preamble began: “Whereas the people of New Zealand uphold principles that acknowledge the supremacy of God …”. The 1963 Bill is reproduced in full in Tim McBride, New Zealand Civil Rights Handbook at 593–99 (Price Milburn/Butterworth 1980).
116. For discussion see id at ch 21 and G.W.R. Palmer, A Bill of Rights for New Zealand? in Kenneth Keith, ed, Essays on Human Rights at 106–31 (1968).
117. See A Bill of Rights for New Zealand—A White Paper A.J.H.R. at A.6 (1985).
118. Interim Report of the Justice and Law Reform Select Committee, Inquiry into the White Paper— A Bill of Rights for New Zealand, A.J.H.R. at 1.8A (tabled in the House of Representatives, July 9, 1987), 24 (1987).
119. Sir Ivor Richardson, Rights Jurisprudence—Justice for All? in P. Joseph, ed, Essays on the Constitution at 69.
120. See A White Paper at 65 (cited in note 92): “[M]any provisions of the draft Bill are closely based on the Canadian text. This will be of major practical importance for New Zealand lawyers and courts will be able to draw on the rich and developing jurisprudence from Canada.”
121. See, for example, Ministry of Transport v Noort 3 N.Z. L Rev 260 at 292 per Gault J. (1992): “Its [the Bill of Rights Act's] terms, in large measure, have been drawn from the Canadian Charter of Rights and Freedoms so that Canadian decisions can be expected to assist in interpretation so long as there is borne in mind the different status enjoyed by the Charter.”
122. See also Cooke P., id at 269
123. Richardson I., id at 283.
124. Id at 134.
125. For an excellent discussion of the New Zealand religious freedom provisions see Paul Rishworth, Coming Conflicts over Freedom of Religion in Grant Huscroft & Paul Rishworth, eds, Rights and Freedoms ch 6 (1995). The question of whether our Bill of Rights Act 1990 has an anti-establishment import is explored by Rishworth.
126. Id at 237–43.
127. Regina v Big MDrug Mart Ltd., 18 D. L Rev (4th) 321 at 353–54 per Dickson J (emphasis added) (1985).
128. Id at 354.
129. Id at 356.
130. Id at 357.
131. Id. State funding of the Catholic school system is protected in Canada under the Constitution and has survived an anti-establishment attack: see Reference Re an Act to Amend the Education Act (Ontario) 40 D. L Rev (4th) 18 (S.C.C.) (1988).
132. White Paper at 81, para 10.60 (cited in note 92).
133. Interim Report at 143 (cited in note 94).
134. Their submission was published in book form: see Jerome B. Elkind & Anthony Shaw, A Standard for Justice: A Critical Commentary on the Proposed Bill of Rights for New Zealand at 51 and 52 (Oxford U Press, 1986).
135. Id at 143 and 45.
136. Id at 45–6.
137. Id at 152.
138. Interim Report at 152 (cited in note 94).
139. See note 29. For illuminating discussion see Rishworth, Coming Conflicts at 238–41 (cited in note 99).
140. See, for example, Zylberberg v Sudbury Board of Education (Director) 52 D.L Rev (4th) 577 at 591–92 (Ont Cal) (1988)
141. Canadian Civil Liberties Association v Ontario Minister of Education) 65 D.L Rev (4th) 1 (Ont. Cal) (1990).
142. For discussion see Carol A. Stephenson, Religious Exercises and Instruction in Ontario Public Schools, 49 U Toronto Fac L Rev 82 (U Toronto Press, 1991).
143. See § 4 of the Act. The Court of Appeal has affirmed this: see, for example, Richardson J in Noort at 276–77: “[T]he Bill of Rights Act is not entrenched. It is not a constitution. It is not supreme law in that sense. It does not override all other legislation.”
144. Also Cooke P, id at 266; “[t]he Canadian Charter is supreme law overriding inconsistent legislation, whereas in New Zealand legislation is not invalid if inconsistent with the Bill of Rights Act (§ 4).”
145. See also § 151(1) of the Human Rights Act 1993 which states “nothing in this Act shall limit or affect the provisions of any other Act…”. It has been argued that based on § 152 (which repeals § 151 at the end of 1999) the Human Rights Act could, from 2000 on, limit and affect inconsistent legislation.
146. In other words, the Human Rights Act would become a sort of entrenched, higher law: see Paul Rishworth N.Z. L Rev 298 at 314.
147. Isaacus Adzoxornu, Brooker's Human Rights Law para C.2.07 (Brooker's, 1996).
148. Address by the Hon. Jenny Shipley to the UNESCO Values in Education Summit, Wellington, March 26, 1998. An edited transcript can be found at: http:www.executive.govt.n2yminister/shipley/s980326.htm. The speech has sparked much debate since: see, for example, Keep State out of Spirituality (editorial), Sunday Star-Times, March 29, 1998, at A12
149. Bruce Ansley, That Old School Religion, N.Z. Listener, 11 at 23–24 (April 1998).