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Does Jesus Belong in Parliament

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DOES JESUS BELONG IN PARLIAMENT? AN EXAMINATION OF FREEDOM OF RELIGION PROVISIONS IN PUBLIC BODIES IN NEW ZEALAND, CANADA, AND THE UNITED STATES

by ELIZABETH G. FOX

28 August 2009

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I

INTRODUCTION

New Zealand does not have a state religion in the way that other countries do.1 The Church of England, for example, has its doctrine and prayer book ratified by Parliament and has the Queen as supreme authority over both ecclesiastical and civil matters.2 However, the central legislators of this country listen to the Speaker of the House open each Parliamentary session with the following prayer.3
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 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.

Is this appropriate in a country that professes no state church and the tolerance of all religions equally?4 Religious content has historically infiltrated governing and administrative bodies. However, with the cultural disestablishment of Christianity and the emergence of toleration for all faiths, there continues to be the presence and preference of a small set of religions by the State. The degree to which religion interacts with the State varies with different public bodies. One reaction to this ad hoc system is the impression that such a dynamic between religion and the State might only be justified through preference for the preservation of the status quo. Considering the provisions in the New Zealand Bill of Rights Act 1990 (‗NZBORA‘) that safeguard the religious freedom of its citizens, such preference at first appearance is inconsistent with the underpinning rationale of personal autonomy that is sacrosanct in a modern liberal democracy. This seminar will address the issue of whether the actions of a public body have the effect of impairing a person‘s freedom to believe or not believe. Part II will look at the religious freedom provisions and experiences of the United States and Canada before discussing the relevant sections in our own jurisdiction, with the balance of the paper addressing different instances of public bodies accepting religion into their practices or institutions. Part III will examine the adoption of Christian expressions of faith in legislative bodies. Part IV will go onto discuss whether the presence of Maori prayer can be permitted. Parts V and VI deal with religion in education: Part V examining the secularity provisions and loopholes regarding religious instruction and observance in the Education Act 1964 before Part VI turns to state aid of religious schools through the Private Schools (Conditional Integration) Act 1975. The aim of this seminar is to highlight areas in which citizens‘ freedom of religion is not wholly achieved. It seeks to explain the depths and differing interpretations of the provision ‗freedom of religion‘, the ways in which public bodies have responded to it, and to advocate that a position of inclusive neutrality is desirable for New Zealand. It is the author‘s view that this does not necessarily lead to the removal of all religious markers but rather the

1 2 3

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Mabon v Conference of the Methodist Church of New Zealand [1998] 2 NZLR 513, 514–523 per Richardson P. 13 Eliz I, c.12, art 37. Petition 2002/83 of Dr Anthony Hochberg and Nine Others (Relating to the Parliamentary Prayer): Report of the Standing Orders Committee [2002] AJHR (―Report of the Standing Orders Committee‖). New Zealand Bill of Rights Act 1990, s 13.

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reconsideration of ones that are indicative of a nation homogenous in their beliefs and that no longer reflect the pluralistic and multicultural identity of New Zealand. II COMPARATIVE PROVISIONS ON RELIGION AND BELIEF

New Zealand‘s provisions cannot be fully understood unless seen in light of both the United States and Canada. The United States is regularly regarded as the benchmark by which other jurisdictions‘ religious provisions are based on or in response to, and New Zealand largely modelled its legislation on the Canadian Charter of Rights and Freedoms. The NZBORA provisions show a considered response to both and a tension between strict separation of church and state with a position of inclusive neutrality towards different faiths. A 1 Provisions United States

The United States has a rich body of jurisprudence surrounding the use of religion by administrative and governing bodies. The writers of the provision recognised the dangers of institutionalised religion and of its oppressive potential from their experiences in Europe, and it was from this perspective that they drafted the First Amendment to their Constitution. Frequently referenced as the ‗Establishment Clause‘ and the ‗Free Exercise‘ clause, the relevant portions read, ‗Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof‘.5 The scope of this restriction is wider than first imagined: although explicitly it only restricts Congress, the Supreme Court has interpreted it in conjunction with the Due Process Clause of the Fourteenth Amendment so as to apply to each state, including any local government within a state.6 2 Interpretation

For the scope of this paper one only need to refer to the clause regarding ‗establishment of religion‘; however, this phrase alone has been the subject of much debate. The Supreme Court defined the intention of the clause as the framer‘s intention to erect ‗a wall of separation between church and state.‘7 However, some interpretations view it as imposing a prohibition on establishing one national religion; while others see the Establishment Clause as a prohibition on government interaction with religion in general. 8 Several tests have been formulated in discerning the correct interpretation of the First Amendment. (a) Endorsement test

The first test for determining whether the Establishment Clause has been breached was set out in Lemon v. Kurtzman.9 This test comes from the ethos that government should only concern itself in civil matters and leave religion to the conscience of the individual, valuing neutrality at the same time as recognising that they must interact while co-existing in society. It consisted of three prongs: that the law condoning the religious expression inside a public body must have a secular purpose, must not have the primary effect of either advancing or
5 6 7 8 9

US Const, am 1. Everson v Board of Education 330 US 1, 16 (1947). Ibid. Wallace v Jaffree 472 US 38, 70 (1985) per Rehnquist J (dissenting). 403 US 602 (1971).

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inhibiting religion, and must not foster an excessive entanglement of government and religion.10 This test has since been further justified and refined. In particular, the test as to whether a particular government action amounts to the promotion of any religion is set out in Lynch v Donnelly and has come to be known as the ‗endorsement test‘.11 This test sets out that an action is invalid if the government intends to convey a message of disapproval or endorsement of a religion and such a perception is created in the mind of a reasonable person.12 O‘Connor J wrote:13
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition...[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

(b)

Coercion test

A complementary test of the First Amendment has come to be known as the ‗coercion test‘.14 In this test the government is not held to have breached the Establishment Clause unless it can be shown that it has either provided direct aid to religion in a manner intended to establish a national church, or has coerced people to participate or support a religion against their will. If such a test were applied, it has been imagined that some forms of statesponsored religious symbols such as nativity scenes would be permitted. This test has been subject to varying interpretations: in Lee v Weisman, Kennedy and Scalia JJ applied the same test and reached different conclusions.15 However, a valuable observation made by the court is that while most believers would only view prayer at public ceremonies as a reasonable request to respect their religious practices, non-believers or dissenters may instead view it as an ‗attempt to employ the machinery of the State to enforce a religious orthodoxy.‘16 (c) Neutrality

The government may not favour one religion over another nor religious adherents collectively over non-adherents.17 This concept of neutrality is used primarily in discussing issues of government funding towards religious groups: in particular, state funding of religious schools. This was first discussed in Everson, where the Court held that the State was able to treat religious groups the same as they would treat similarly situated groups under the 18 consideration that the funding is to follow the child and is in the interests of the child. The effect of defining neutrality as ‗even-handedness‘ ensures that although direct aid to religious institutions may remain unconstitutional, indirect aid to such groups as long as it is part of a
10 11 12 13 14 15 16 17 18

Ibid. Lynch v Donnelly 465 US 668 (1984). Ibid. County of Allegheny v American Civil Liberties Union 492 US 573, 625 (1989) (―Allegheny v ACLU‖). Ibid. Lee v Weisman 505 US 577 (1992). Ibid. 592. Board of Education of Kiryas Joel Village School District v Grumet 512 US 687, 696 (1994). Mitchell v Helms 530 US 793 (2000).

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neutrally applied program that directs money through a parent or other party is permissible. Aid is permissible as long as it is incidental.19 B 1 Provisions Canada

Canada is a helpful jurisdiction to look to as the NZBORA was modelled on the Canadian Charter of Rights and Freedoms (‗the Charter‘). As such, case law interpreting the charter is of great assistance to the courts here.20 The distinct difference in the approach of Canada from that of the United States is that there is no explicit establishment provision. The equivalent religious provisions are to be found in sections 2 and 15 of the Charter. Section 2 states that everyone has the freedom of conscience and religion as well as of thought, belief, opinion, and expression.21 In addition to this, section 15 guarantees the right to equality.22 The choice not to employ the words prohibiting establishment is increasingly logical when considering the effect and incongruity of the presence of such an ethos. 23 The preamble to the Charter begins with the acknowledgement that Canada is ‗founded upon principles that recognize the supremacy of God‘.24 Additionally, an establishment clause adds to the complication that Canada encounters when accommodating its policy toward aiding religious schools. The sections of the Charter above regarding religious freedoms are often held in a difficult tension with section 29 of the Charter, which reaffirms and protects a section in the Constitution Act 1867 that mandated funding of Catholic education. This issue will be further discussed in Part VI. 2 Interpretation

Although establishment of religion is not expressly prohibited by the Charter, decisions of the Court of Appeal and the Supreme Court have effectively implied an establishment clause into the words ‗freedom of religion‘ in section 2 (a). This can be seen when examining the judgment of R v Big M Drug Mart Ltd.25 Laycraft J.A notes
Canada[ian] government shall not choose sides in sectarian controversy... Sectarian observance shall neither be enforced nor forbidden whether by economic sanction or the more subtle (but even more devastating) means of imposing the moral power of the State on one side or the other.‘

In commentary on this passage, academics have noted that to speak of the State being on one side or the other is to speak in establishment terms; the fact that the State appears to be one side has made it an establishment issue.26 Similar concepts around endorsement and coercion have also arisen in Canada, and will be examined through the course of this paper.
19 20 21 22 23

24 25 26

Zelman v Simmons-Harris 536 US 639 (2002). Rex J Adhar ―A Christian State?‖ (1996–1999) 13 JL & Religion 453, 474. The Constitution Act 1982 (Can), s 2. The Constitution Act 1982 (Can), s 15. Paul Rishworth The Canadian Charter of Rights and Freedoms: Implications for a Bill of Rights in New Zealand (MJur Thesis, The University of Auckland, 1985) 224 (―Canadian Charter‖). Adhar, above n 20, 473. [1984] 1 WWR 625, 641. Rishworth, Canadian Charter, above n 23, 221.

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This creeping American jurisprudential influence is concerning. The Charter was based largely on the Covenant on Civil and Political Rights, and an anti-establishment provision goes further than the requirements outlined in the original section of the Covenant. Because of this, a reading of the freedom of religion provision that is consistent with such an international instrument should highlight a concern with the free exercise of religion, while noting that the instruments remain silent on the establishment issues.27 It can be assumed that Canada‘s draftsmen were familiar with the First Amendment in the United States‘ constitution; its absence could indicate a deliberate decision not to import an equivalent provision into Canadian provisions. C 1 Provisions New Zealand

There are four sections of the New Zealand Bill of Rights Act 1990 that together safeguard religious freedom, speaking mainly towards the ‗free exercise‘ of religion. For the purposes of this seminar paper, the relevant provision is section 13, which reads ‗[e]veryone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference‘.28 For the purposes of this seminar, sections 13 will be primarily looked to in examining the constitutionality of the presence of religion in public bodies. Conspicuous in its absence once again is an anti-establishment provision in any of the sections. This was deliberate. The White Paper to the NZBORA specifically noted that the draft provision of the Bill was different in character from that of the First Amendment of the United States Constitution.29 It stated that the prevention of a state religion in New Zealand was not a ‗real question to address‘.30 Similar to the dissenting judgments in R v Big Drug Mart Ltd, It recognised the restrictive effect that such a clause would have on existing practices such as giving state aid to religious schools, voluntary prayer and bible readings in schools. Instead of replicating Establishment Clause terminology, New Zealand took its lead from the ICCPR 1966 and the Canadian charter.31 2 Interpretation

When interpreting the wording of section 13 that one has the ‗freedom to religion‘, there is often a complementary understanding that the statement provides a ‗freedom from religion‘: the guarantee of an absence of coercion or constraint by the State in the area of religion.32 Big M Drug Mart articulates this well in its statement that33
27 28

29 30 31 32 33

Ibid. 223. In the interests of completeness, there are three other relevant provisions that safeguard religious freedom. Section 15 goes on to provide the right to manifest the aforementioned beliefs; s 20 states that those belonging to an ethnic or religious minority shall not be denied the right to enjoy the culture or profess and practice the religion of that minority; and s 19(1) guarantees the right to freedom from discrimination in the Human Rights Act 1993. Turning to that Act, religious (and the lack of a religious belief) is included as part of the protected grounds in s 21(1). White Paper, A Bill of Rights for New Zealand [1985] AJHR A6, 81. Ibid. Adhar, above n 20, 478. R v Big M Drug Mart (1985) DLR (4th) 321, 336. Ibid.

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‗Coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others... If a person is compelled by the State or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. ‗

Apart from such limits as public safety, order, health, or morals or the fundamental rights and freedoms of others, freedom properly articulated implies that no one is forced to act in a way contrary to their beliefs or conscience.34 Although the ‗freedom from‘ reading of section 13 may mean that Canadian case law leaning towards establishment, time has shown that a reading of the provisions as neutrality is more pervasive. This can be explained through many factors. There is an overarching philosophy of egalitarianism in New Zealand, where equality is valued more than liberty. 35 A useful illustration of how to assess state action that displays the tension between the principles of anti-establishment and those of neutrality is through R. Neuhaus‘ naked public square and neutral public square model.36 In the first, absolutely all public or officially sanctioned religious references are prohibited in order to maintain religious freedom for all. In the second, ‗neutral public square‘ permits religious expression on the basis that it reflects the religious patterns of its community. The argument is that the inclusion of religion is not an endorsement nor is it coercive, but rather that it facilitates private religious expression on public occasions neutrally between different religions and beliefs.37 Apart from the ‗freedom from‘ interpretation latent in section 13 there is little basis for an establishment-style reading of the relevant provisions beyond the general idea of ‗separation of church and state‘—and therefore few areas where a claim can be brought forward of excessive entanglement between the government and religious matters. As such, New Zealand does not have as strong a litigious culture around such issues and they are often portrayed as a matter for the politicians than the judges. It seems that vestiges of public religion are regarded as relatively harmless in New Zealand. This would not be the case if, as in America, there was a powerful religious lobby for whom such recognition served to symbolise power and influence.38 As a result, the lack of attention and constitutional documents have set up a dynamic where government‘s involvement with religion is largely overlooked and thus dealt with inconsistently. This is likely to change. The disestablishment of cultural Christianity has meant the growth of adherents to minority religious faiths and the questioning by many of long-standing practices. As there comes an increase in minorities and an increasing international focus on ‗rights consciousness‘, the question of whether the State is properly accommodating them is inevitable.39

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International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR, supp No 16 (1966), s 18(3). Paul Rishworth ―The Religion Clauses of the New Zealand Bill of Rights‖ [2007] NZ Law Rev 631 (―Religion Clauses‖). Richard J Neuhaus The Naked Public Square: Religion and Democracy in America (Eerdmans Publishing Company, Grand Rapids, 1984). Ibid. Rishworth, Religion Clauses, above n 35. Ibid.

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III

PRAYER IN THE PRACTICES OF PUBLIC BODIES

In NZ there still remain various vestigial symbolic or ceremonial instances illustrating where Christianity is afforded special recognition. This section will examine two instances: in Parliament and in local government. A Prayer in Parliament

Standing Orders require that Parliament open their sessions with a prayer, although provisions for its content are excluded in the Standing Orders.40 At present, the prayer recited in the House acknowledges an explicitly Judeo-Christian God.41 The courts in New Zealand cannot point directly to the validity or invalidity of parliamentary prayer. There are obvious procedural issues hindering the NZBORA from being used in addressing the practices of the legislature, in particular the principle of parliamentary privilege which enables proceedings to be performed free from external interference. However, whether the prayer should stay in its current form (if, indeed, at all) remains a legal question to which the legal system can answer— despite not being able to enforce change in the House itself, New Zealand‘s legal system can deliver this answer to the politicians. 42 As there is no other law that looks to prohibit or allow prayer in public bodies (whether it be in Parliament or in other public ceremonies), section 13 stands as relevant law and a valuable point of reference to the validity of such actions. It seems justified to ask that the body that made such legislation adhere to it themselves; it is on this basis that such actions are questioned. The validity of the opening prayer has been discussed before. In 2003, a petition was brought by a Member of the House to remove the last five words preceding ‗amen‘ in the prayer, with the effect that it would no longer be Christian in nature. 43 This went before the Standing Orders Select Committee, who recognised the expectation that if the prayer were to be changed it would be with the consensus of the House.44 A majority of members in the House who responded voted for the retention of the prayer.45 Of these, a majority considered a revision in the wording of the prayer. Some of the members who voted for the retention of the prayer indicated an appreciation of the reflection on the reasons why they were present (i.e. that of service) but noted that this did not have to necessarily take part in the form of a prayer. However, the low levels of member support overall led to the idea being abandoned.

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42 43 44

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Standing Orders 2008, r 59. In Canada, Standing Order 30(1) requires the Speaker to read prayers every day at the meeting of the House before the commencement of business. This prayer is reflective of the different faiths practiced by its citizens and is non-sectarian in nature. See Annotated Standing Orders of The House of Commons 2005 (2nd ed), ch IV (Can) (―Canadian Annotated Standing Orders‖). Elizabeth G Fox, Interview with Paul Rishworth (26 August 2009). Report of the Standing Orders Committee, above n 3. This issue has also been discussed in the House of Representatives in Canada. In response to the argument that reading prayers was contrary to the Charter, the Speaker stated that ‖it was not the role of the Speaker to rule on the constitutionality of the practice ... his jurisdiction was to make decisions concerning the procedural rules and that it was up to the House ... to make decisions concerning possible changes to the prayers and the practice of reading them‖ (emphasis added). Canadian Annotated Standing Orders, above n 41. Seventy four members (84 per cent of respondents; 61 per cent of all members) answered ―yes‖— that a prayer should continue to be recited at the commencement of each sitting. Fourteen members (16 per cent of respondents; 12 per cent of all members) answered ―no‖.

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One reason behind such acceptance of the practice may be due to the assumption that its very presence implies validity, otherwise it would not have been tolerated through the years.46 Accommodation for legislative prayer can be justified in two ways: through the exemption of general practices regarded as ceremonial deism as espoused in Lynch v Donnelly,47 or through the special provision given to legislative prayer in Marsh v Chambers.48 1 Lynch v Donnelly

There are many instances in the United States where cultural practices include references to a deity: the swearing of oaths, the phrase ‗under God‘ in the Pledge of Allegiance, and the phrase ‗In God We Trust‘ on the back of American currency. These examples seem to indicate that acknowledgement of a deity is permissible by the State; a conclusion completely at ends with the restrictive Anti-Establishment clauses. However, these anomalies have been resolved through the judicial coining of the phrase ‗ceremonial deism‘: a concept where, due to the practice‘s context, history, and character, it is considered no constitutional threat.49 Often this is due to the fact that through rote repetition the practice has lost any significant religious content.50 This term was coined by former Yale Law School Dean Walter Rostow in 1962, where he reconciled the Establishment Clause with a particular class of activities that could ‗be accepted as so conventional and uncontroversial as to be constitutional‘.51 Ceremonial deism has been defined through its use by the courts as a symbolic reverent reference to a deity that is delivered, sponsored, or encouraged by government officials. Such invocations in and of themselves are unlikely to proselytize or indoctrinate their audience, are not specifically designed to accomodate for the religious expression of any particular group of citizens and are deeply rooted in the nation‘s history.52 Although ceremonial deism does not extend to protect prayer in public schools, other public practices that acknowledge a belief in God are permissible if they are utilised to further legitimate secular purposes of expressing confidence in the future, solemnizing public occasions, and generally encouraging national unity.53 Cases supporting the inclusion of ceremonial deism see such practices as a celebration of patriotic values devoid of any theological impact and therefore as essentially secular in meaning.54 2 Marsh v Chambers

This case both narrows and broadens the scope of justification for practices that involve religion. It provides a specific instance in which deism of more than a ceremonial nature is permitted. Although not explicitly stated, the reasoning of historical use giving rise to the assumption of validity has been used to hold legislative prayer as constitutional in the United States, despite prayer in other public bodies not passing constitutional muster. In the case of Marsh v Chambers the majority held that the historical tradition of opening legislative sessions with a prayer validated the use of an explicitly Judeo-Christian prayer recited by a
46 47 48 49 50 51 52 53 54

Steven B Epstein Rethinking the Constitutionality of Ceremonial Deism (1996) 96 Colum R Rev 2083, 2087. Lynch v Donnelly, above n 11. 463 US 783 (1983). Elk Grove Unified School District v Newdow 542 US 1 (2004). Lynch v Donnelly, above n 11. Arthur E Sutherland Book Review (1964) 40 Ind LJ 83, 86. Epstein, above n 46, 2095. Lynch v Donnelly, above n 11, 716–717. Allegheny v ACLU, above n 13, 630–631.

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chaplain of Presbyterian denomination that was paid for at public expense.55 Prayers by legislative chaplains supported by taxpayers could be traced back to the First Continental Congress, which occurred contemporaneously with the enactment of the First Amendment.56 As such, the invocation for Divine guidance was considered no longer to be a religious practice but rather as merely an ‗acknowledgement of beliefs widely held among the people‘.57 Legislative prayer in New Zealand looks slightly different from its counterpart in the United States. The secular role of the person speaking, its brevity and its rote method of recital of prayer suggest that Lynch rather than Marsh provides a more analogous means of analysis. The features of prayer in Parliament are similar to the invocation ‗God save the United States and this Honourable Court‘ prior to American judicial proceedings: invocations that traditionally have been considered part of the core instances of permissible ceremonial deism.58 However, the fact that more instances of ceremonial deism it have not been litigated does not infer consistency with the Establishment Clause. 3 Arguments against the exemption

There are many reasons why ceremonial deism should not apply to legislative prayer. The majority opinion in Marsh does not subject the practice at all to the tests created in case law regarding the Establishment Clause and set out in Part II of this paper. If it had, there is no doubt that it would have failed on the endorsement prong.59 This is because legislative prayer infringes the religious liberty of one who does not adhere to the same faith by placing ‗the power, prestige, and financial support of the government‘ behind the religious message and themes embodied in the prayers.60 As Kennedy J observed in Allegheny,61
It seems incredible to suggest that [an] observer of legislative prayer who either believes in no religion or whose faith rejects the concept of God would not receive the clear message that his faith is out of step with the political norm.

Additionally, many of the arguments put forward in favour of creating an exception for such practices are found to be insufficient. The argument that lack of controversy over the practice indicates constitutionality and a lack of discrimination is flawed. The fact that a practice has endured does not immunise it from appropriate scrutiny: if history and tradition were appropriate markers to validate a practice, racial and gender-based discrimination would remain permissible.62 History has seen an evolution of a society that is gradually eroding the cultural establishment of Christianity and is increasingly accommodating the religious pluralism of its citizens. Because of this, publicly sponsored activities that were considered non-discriminatory in the past should no longer be tethered to legislation put in place to protect the freedoms of the people.63 Prayer is not the only way to solemnise an occasion, and it is possible that such reflection may be carried out effectively through nonreligious
55 56 57 58 59 60 61 62 63

Marsh v Chambers, above n 48, 823. Ibid. Ibid. Epstein, above n 46, 2143. Marsh v Chambers, above n 48, 801. Wallace v Jaffree, above n 8, 70. Allegheny v ACLU, above n 13, 673. Ibid. 630. Robert L Cord Separation of Church and State: Historical Fact and Current Fiction (Carlson Publishing Ltd, Brooklyn, 1982) 163.

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means, such as through brief readings from historical documents or tributes to important figures in our nation‘s history.64 B In Local Government

Courts of the United States tend to frame legislative prayer as a matter of ceremonial deism. However, it can also be framed as an issue of coercion. Such a practice cannot be considered as a de minimis violation of religious freedom. The references to God in ceremonial proceedings are not a ‗mere shadow‘, vaguely registered and absent of any meaning. 65 The certainty of public outcry were all references to God replaced with a recognition of Allah illustrates the observation that such religious acknowledgment may ‗more readily fade into the background‘ when one is in favour to some degree of the subject of the reference. 66 An effective illustration of how prayer can be coercive comes by case law regarding prayer at the level of local government.67 As in Parliament, a prayer is used in some local bodies for the purposes of solemnising the affair. However, unlike the central legislative body, there is little historical evidence in which proponents of ceremonial deism may find solace. An example of the conflict comes in the case of Church v Hawkes Bay Regional Council where a council meeting opened with a karakia.68 Complaints to the Human Rights Commission (―HRC‖) and the Complaints Review Tribunal were lodged by a person attending on the grounds that this was discrimination on the grounds of religion. Both bodies rejected it, stating that his 'level of comfort for the duration of the karakia' was not relevant to establishing what would constitute a breach of the appropriate legislation.69 Because the claim was taken to the HRC, the action was framed as discriminatory rather than outright coercion. However, through section 13 of the NZBORA there may have been an avenue for such a claim as the incorporation of a prayer into the official proceedings of an institution has been more readily viewed as coercive in other jurisdictions. Freitag v. Penetanguishene (Town) is one such example dealt with in the Canadian Court of Appeal.70 1 Freitag v. Penetanguishene (Town)

At issue was whether the recitation of the Lord‘s Prayer at the beginning of municipal council meetings was a breach of the appellant‘s rights under section 2 (a) of the Charter. In order to ascertain a breach, the Court looked first to the purpose and effect of the practice before determining if it was a justifiable limit through minimal interference on the right to freedom of religion. Although the purpose of the practice was found to be in breach of the Charter and there was no need to look at the effect, several factors were examined to see what effects would constitute a breach. This particularly looked at the legal relevance of the appellant‘s discomfort. Feldman JA noted that despite differences in the nature and potential effect of the coercion in local government meetings compared to coercion in a public school, the
64 65 66 67 68 69 70

Epstein, above n 46, 2139. Marsh v Chambers, above n 48, 801. Abington School District v Schempp 374 US 203, 308 (1963). Epstein, above n 46, 2137. (26 March 2001) CRT 04/01. Ibid; Rishworth, Canadian Charter, above n 23, 288. Freitag v Penetanguishene (Town) (1999) 179 DLR (4th) 150 (Ont CA).

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Charter guaranteed the same freedom to people attending both: the freedom from pressure to conform to the majority‘s religious practices.71 Further to this, Feldman JA acknowledged that such pressure or compulsion must be assessed from the complainant‘s standpoint, as a control or limitation may not be readily appreciable to those whom it does not affect.72 Despite the ability to excuse oneself from the prayer, the inclusion of the prayer at all still amounted to indirect coercion and pressure.73 That such pressure was not intentional is irrelevant; Feldman, quoting the case of R v Edwards Books and Art Ltd., stated that74
It matters not ... whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a).

This decision stands in stark opposition to the perspective opined in New Zealand‘s Church case.75 On the facts, it was found that Church was being coerced; as in Big M Drug Mart, such a practice was a ‗subtle and constant reminder‘ of the appellant‘s difference, and that his discomfort for the time of the prayer was not trivial or unsubstantial.76 Further, it was held that the action did not fall within what can be considered reasonable and demonstrably justified in a free and democratic society. The prayer cannot be argued as a minimal impairment of the appellant‘s freedom. The town‘s by-law did not mandate the recitation of the Lord‘s Prayer: the purposes for which the prayer was said (for solemnity) could be served through other alternatives as discussed below.77 As such, the practice was held to have infringed the appellant‘s Charter right to freedom of religion. The test for reasonableness as well as the status accorded to the discomfort of the complainant is treated differently in the United States. The judgment in Church expresses a sentiment similar to that by O‘Connor J in Capitol Square Review & Advisory Board v Pinette.78 It is noted that ‗[a] State has not made religion relevant to standing in the political community simply because a particular viewer of a display might feel uncomfortable‘.79 Instead of looking to the comfort or discomfort of one non-adherent, the reasonableness of the limit is whether what is regarded as reasonable behaviour by all is determined by collective social judgment based on the context of the practice. 2 Application in New Zealand

71 72

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74 75 76 77 78 79

Ibid [34]. Feldman JA here referenced Zylberberg v Sudbury Board of Education [1988] 52 DLR (4th) 577 (Can), a school prayer case that stands as the equivalent authority to the coercion test as set out in Lee v Weisman, above n 15. United States case law has also acknowledged that a solution that requires members to leave the room is unsatisfactory: although this gesture circumvents the possibility of coercion, it also manifests the alienation that the state puts on those who have different beliefs and does not take into account social pressures in attending. Santa Fe Independent School District v Doe (2000) 530 US 290 stands as United States authority that public bodies should not assume practices that put individuals in the difficult position of choosing whether to attend with the knowledge that they may face a personally offensive religious ritual. R v Edward Books and Art Ltd., [1986] 2 SCR 713 (SCC), as in Freitag v Penetanguishene, above n 70, 160. Church v Hawkes Bay Regional Council CRT 04/01, 26 March 2001 R v Big M Drug Mart, above n 32, 354. Feldman JA at [51] used the test as found in R v Oakes [1986] 1 SCR 103 (SCC). 515 US 753 (1995). Ibid. 2455.

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In deciding what test for reasonableness should be adopted in New Zealand for the purposes of coercion, whether the standard is to look to how the group understands reasonableness or the individual‘s subjective feelings should not be viewed as being bound by Church because of the different grounds on which it was argued. Framed as a coercion issue, prayer in such bodies should not be permissible. The apparent endorsement of a prayer by a public institution sends a message to non-believers of their alienation from the community, and decorum requires those attending to participate as if they agreed through the bowing of the head and appropriate silence.80 The State, by indirectly requiring those attending to show the appropriate signs of decorum, creates an environment where adhering to a religion is relevant to a person‘s standing in the political community.81 Despite the arguments that little is done in the manner of proselytising, the presence of a prayer to a God necessarily aligns the state with the notion that faith is preferable to lack of faith, as well as privileging monotheistic faiths above polytheistic ones. C Conclusions

If New Zealand keeps with a stance of neutrality rather than strict establishment, observances should still be permitted if offered in a manner that is inclusive of other faiths. One way in which this can be done is through abstracting it to be less sectarian or rotating the form of prayer so that the public body gives expression to different faiths. This method would recognise the prevalence of Christianity stemming from New Zealand‘s national heritage whilst making an allowance for other faiths. Alternatively, if the purpose of the prayer is to solemnise the occasion, it is possible that this may be carried out effectively through nonreligious means. This could be achieved through several ways: brief readings from historical documents, tributes to important figures in our nation‘s history, or a statement of recommitment to the people.82

IV

MAORI SPIRITUALITY IN THE PRACTICES OF PUBLIC CEREMONIES

In order for the State‘s recognition of our indigenous peoples not to be regarded as selective tokenism, embracing Maori culture has also meant the acceptance of Maori religious and spiritual concerns. As the concept of taonga incorporates Maori spiritual values and beliefs, it is protected according to Article 2 of the Treaty of Waitangi. This leads to the issue of trying to reconcile two different agendas: the accommodation of all religious values with the desire to recognise especially the very spiritual traditions of a politically privileged minority.83 A Context

There was a time in New Zealand‘s history where it seemed that the last vestiges of Christian privilege were negligible and the concept of a clear separation of church and state easily conceivable. Religion had almost been fully privatised.84 However, the 1980s saw a cultural and spiritual renaissance for Maori. The State sought to recognise and promote indigenous
80 81 82 83

84

Lee v Weisman, above n 15. Lynch v Donnelly, above n 11, per O‘Connor J. Epstein, above n 46, 2139. Erich Kolig ―Of Condoms, Biculturalism and Political Correctness: The Maori Renaissance and Cultural Politics in New Zealand‖ (2000) 46 Paideuma 231, 248. Adhar, above n 20, 653.

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interests; this lead to the inclusion of Maori ceremonial protocol into many public proceedings.85 B The Maori Worldview

Unlike Christian theism in Western society, the Maori worldview is holistic and not as easily divided between the secular and the spiritual. Religion and culture are inseparably intertwined, and the result is that there is often a degree of public religious expression that might not otherwise be permitted in a public body. Church v Hawkes Bay Regional Council86 is an example of a case that straddles Parts III and IV of this paper: namely, how one can address the inappropriateness of the State promoting one form of religion in a prayer while also recognising New Zealand‘s indigenous people and their inherently spiritual worldview. When the power and prestige of the Government is placed behind a religious belief, the indirect coercive pressure upon the other groups to conform to the officially approved religion is plain.87 The issue of a karakia is a further cause of unease when considering that Christianity has been absorbed into and now accepted as an integral part of Maori culture. 88 Those advocating an establishment interpretation may feel that Christian themes are being surreptitiously allowed into public bodies under the justifying guise of indigenous culture. However, it must be noted that the ability to remove these Christian elements is to tamper with the form of Maori culture. C First Among Equals

Attempts to avoid state coercion using Neuhaus‘ ‗neutral public square‘ model becomes increasingly problematic when governments attempt to remain neutral as well as recognise Treaty obligations. Recent state policy demonstrates a distinct advantaging of Maori spirituality ahead of others – for example, through Maori blessings at events where other religious or cultural references are not present and exclusively Maori cleansing ceremonies of overseas embassies at the public expense.89 The adoption of such protocol and culture often leads to the concern regarding such privileging. Rex Adhar captures the public sentiment well.90
The increasing official recognition in our laws of Maori spiritual priorities means that [Helen] Clark's secular society is a false construct; that her Government and the law put one faith first, and that is Maori spiritual belief.

Such conflict regarding this privileging of religious stances has been largely dealt with in the political rather than the legal realm. However, the State‘s decision to make a space for the religious expression of a specific group may be argued as the state coercing other groups to acknowledge that group, breaching the ‗anti-Establishment‘ facet of the right to freedom of religion in section 13.91 Recourse cannot necessarily be found in section 20 of the NZBORA as it only allows the right of minorities to profess and practice their religion and does not
85 86 87 88

89 90 91

Ibid. Church v Hawkes Bay Regional Council CRT 04/01, 26 March 2001. Engel v Vitale 370 US 421, 431 (1962). Manuka Henare ―Christianity: Maori Churches‖ in P Donovan (ed) Religions of New Zealanders (2nd ed, Dunmore Press, Palmerston North, 1996). Adhar, above n 20, 626. Ibid. 626. Rishworth, Canadian Charter, above n 23, 304.

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create an obligation for it to be included in public ceremonies. A defence by Maori could be mounted on the Crown‘s obligations found in the principles of the Treaty of Waitangi under the principle of reasonable co-operation.92 This principle outlines that the relationship between community and the distinct development of both parties of the Treaty should be governed by the requirement of co-operation,93 thereby opening up the possibility that such development is furthered by the acknowledgement of Maori in public affairs. D Increased Inclusiveness

As an alternative to the current situation, a purer application of the ‗neutral public square‘ model proposes that the space used for instances of karakia be made available on an equal basis for other forms of religious expression at public events where practical. This inclusiveness has to some extent already occurred, with there being comity and in some places overlap between Maori elders and Anglican clergy. New Zealand‘s situation is similar to England‘s in that often Maori spiritual leaders are Anglican clergy, a denomination shown in practice to be a form of established religion that is open and minimal. Given the absorption of Christian beliefs, Donovan questions whether this theme of inclusiveness could create a workable public religion that can act as inclusive to other faiths and traditions and manifests itself by way of a weak establishment.94 Scholars of other faiths have publicly rejected the adoption of a strict separation between church and state, arguing that a weak, though necessarily privileged Christian establishment can exercise a powerful and positive spiritual function in everyday life.95 Various other religious groups perceieve any state recognition of religion as beneficial, for the reason that public acknowledgement of any transcendent sovereign can act as a counterweight to secularist philosophy and remind the public of the limits of earthly sovereignty.96 However, there is no reason why Maori leaders ought to be the exclusive custodians of New Zealand‘s all-inclusive civic religion.97 It is submitted that this form of all-inclusive yet Maori public religion would act to stretch the concept of religious inclusiveness and artificially extend the parameters of Maori culture for the specific purpose of not causing offence to other minority groups. For this reason, the possibility of over-inclusiveness should be cautiously monitored. E Conclusions

It is difficult to hold in tension the desire to include appropriate Maori presence in the State's proceedings with the need for the State's obligation in section 13 not to privilege one religious belief above others. However, if public bodies are to take seriously their obligations to Maori they must as far as reasonable take into account their spirituality. In the author‘s view, solutions that reduce the levels of Maori presence in official ceremonies for the purposes of accommodating other religious views are undesirable, even if the result is that Maori presence in public ceremonies remains an aberrant exception to the ‗neutral public square‘ model. Given that it is only recently that the importance of Maori expression has
92

93 94

95 96 97

Principles for Crown action on the Treaty of Waitangi — Appendix: The Principles of the Treaty of Waitangi in New Zealand (Department of Justice, Wellington, 1989). Ibid. Peter Donovan ―Civic Responsibilities of the Churches to People of Other Faiths‖ in Ahdar et al (eds) God and Government: The New Zealand Experience (University of Otago Press, Dunedin, 2000) 82. Tariq Modood ―Establishment, Multiculturalism and British Citizenship‖ (1994) 65 Political Q 53, 63. Adrian Hastings Church and State: The English Experience (University of Exeter Press, Devon, 1991.) Rishworth, Canadian Charter, above n 23, 305.

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been rightfully acknowledged, to have it taken away again on the basis of protecting immigrant groups‘ religious expression seems unduly harsh. Although this arrangement may amount to endorsement in the American sense, this issue needs to be considered in light of New Zealand‘s culture and history.98 V CHRISTIANITY IN PUBLIC SCHOOLS

New Zealand‘s approach to religion interacting in educational institutions is at times haphazard. This section will discuss the origins of the secular provision in the Education Act 1964 alongside its seemingly inconsistent succeeding section that allows for programmes such as Bible in Schools. Their validity when considering freedom of religion will be done through the framing of potential breaches as matters of coercion and a lack of neutrality. A Neutrality and Sections 77 and 78 of the Education Act 1964

There is inconsistency in how religion is treated across different levels in New Zealand educational law. Section 77 of the Education Act 1964 states that the teaching of every public primary school is to be of a secular nature. However, no equivalent provision is found for secondary schools.99 Religious observances are acceptable upon reaching this level and the decision to have any such observance rests within the general discretionary power of the school board to control the management of the school.100 Section 77 was carried through to the current Act from its original place in the 1877 Education Act. At the time the statute was enacted, the secular clause did not apply beyond primary schools because secondary schools were established by their own Acts of Parliament. Though this has changed, the provisions regarding secularism have not been adapted to include them. The fact that the clause remains solely to restrain primary-level teaching is therefore not a well-reasoned or researched policy decision based on the appropriateness of religious exposure at different maturity levels. It is what the Royal Commission on Education (‗the Currie Commission‘) called ‗an historical accident.'101 This could be viewed as a lack of neutrality by the legislature in its privileging of non-religion over religion; however, section 78 of the Education Act 1964 may provide an avenue for the overarching ethos of inclusive neutrality to emerge in primary school teaching. The roots of section 78 are historical. The secularism provision of 1877 Education Act, in addition to mandating the secular nature of primary-level teaching, also conferred upon the School Boards a discretion as to what time they opened and how school buildings were to be used outside of these hours.102 If a school was open for more than the daily minimum requirement of four hours a day, it was possible to give religious instruction for the first halfhour of one day a week. These sessions generally took place during normal schooling hours— however, during this thirty-minute period a school was deemed officially ‗closed‘ in

98 99 100 101

102

Ibid. Education Act 1964, s 81. Rich v Christchurch Girls' High School Board of Governors (No 1) [1974] 1 NZLR 1. Report of the Commission on Education in New Zealand (RE Owen, Wellington, 1962) 677 (―Report on Education‖), as noted in Ian A McLaren Education in a Small Democracy — New Zealand (Routledge & K Paul, London, 1974). Ibid.

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the eyes of the law. This manipulation of the education laws came to be known as the ‗Nelson System‘.103 Although any organisation or volunteer from any religion may carry out religious instruction, in practice this teaching is conducted by volunteers from the organisation now known as The Churches Education Commission. The exploitation of the Nelson System increased until by 1960 it was claimed the Nelson System and its Bible in Schools programme was used in 80 percent of the country‘s primary schools.104 This loophole was not closed in subsequent consolidating legislation: the Currie Commission was generally satisfied with its operation and recommended that it be put into law.105 Section 78 of the Education Act 1964 is the result of this recommendation, and now explicitly provides that religious instruction can given by voluntary instructors with the permission of the School Committee on school grounds outside of minimum opening hours, and goes some way to ameliorating the lack of neutrality found in the previous section. B Coercion and Section 78 of the Education Act 1964

Section 78 of the Education Act 1964 does not create an opt-in scheme for religious instruction; it instead offers a scheme where the default is to have a pupil enrolled in the Bible in Schools programme. A possible way that this action could be framed as a breach of the NZBORA is through such a scheme being argued as indirect coercion. Even though the state is not directly giving funding to the Bible in Schools programme, the opt-out system sets the children in a religious setting by default. This is concerning when considering the provision that the state and its actors are to preserve for its people the freedom from religion. This author is of the view that an ‗opt-in‘ rather than an ‗opt-out‘ approach as well as a legislative command to inform parents is more consistent with the legislation currently in place.106 Such an issue may rise in profile if an organisation of a conflicting faith steps into the space to offer a similar programme, leaving schools to decide which programme the students will ‗default‘ into. There are benefits to such conflict: if this occurs, the desire to maintain even-handedness may result in the ‗opt-out‘ provision being reviewed and changed into the preferable non-coercive and consistent ‗opt-in‘ provision. C Experience in Other Jurisdictions

According to First Amendment jurisprudence in the United States, even voluntary religious exercises and observances in schools are likely to be contrary to the Establishment Clause.107 Instead of using approaches of neutrality and even-handedness, jurisprudence points towards a strict prohibition towards any religion in schools. Courts have found voluntary religious instruction offered in school buildings,108 the teaching of Creationism as an alternative in public schools,109 a minute of silence for prayer or mediation,110 and student-initiated and led

103 104 105 106

107 108 109 110

Report on Education, above n 101, 680. McLaren, above n 101, 52. Report on Education, above n 101, 680. Although caregivers can remove their children from religious instruction as per s 79 of the Education Act 1964, there is no section that confers upon School Boards the duty to tell parents that the programme is being offered in the first place. Paul Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Auckland, 2003) 300. McCollum v Board of Education 333 US 203 (1948). Edwards v Aguillard 482 US 578 (1987). Wallace v Jaffree, above n 8.

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prayers111 as unconstitutional. Because New Zealand legislation clearly permits the use of public funds towards religious observances and instruction in educative bodies, the United States does not provide much valuable comparative analysis.112 Canada is a more fertile ground for understanding how the state may preserve religious freedoms whilst taking into account historical accommodations for religious schools: this will be examined in Part VI. D Conclusions

Apart from the policy of students to opt-out instead of opt-in, it is possible that the legislative provisions in the Education Act 1964 can be read in a manner that is consistent with the New Zealand Bill of Rights Act 1990. If the opting out process is clear enough it could effectively be read as an opting in process. Regardless, section 78 should be amended to be more clearly consistent with the NZBORA, regardless of administrative benefits such as simplicity in leaving it as it stands.113

VI

STATE AID TO RELIGIOUS SCHOOLS

For a school with an overtly religious character to receive funding from the government seems prima facie to be against the approach of neutrality. However, this is the case in New Zealand. The Private Schools (Conditional Integration) Act 1975 (‗the Act‘) provides that private schools can integrate into and become part of the State system of education. Although this means that they become subject to the same legislation as other state schools, such institutions maintain their right to conduct the education with a special character. Indeed, the Proprietor maintains a responsibility to preserve the education of a special character and to ensure that this character is not jeopardised upon integration.114 This responsibility of providing education of a ‗special character‘ requires that education is provided within the framework of a particular or general religious or philosophical belief which is manifested in observances or traditions appropriate to that belief.115 As of April 2009, there were 327 state-integrated schools in New Zealand.116 Integrated schools differ in practice from those in the mainstream in several ways. For example, the Act confers a power on the school to appoint a Director of Religious Studies117 that will be paid from the funding received from the State and awards an exemption to integrated schools so are not bound by s 77 of the Education Act 1964. This exemption is given because the Private Schools Conditional Integration Act 1975 indicates that the Act is to take precedence over inconsistent sections in the Education Act 1964. 118 Further to this, keeping to the school's special character through observances such as daily prayer is not considered discriminatory to students that attend the school but are of other religious or
111 112

Santa Fe Independent School District v Doe, above n 73. For example, s 80 of the Act provides that public school teachers are able to give religious instruction. The objection to be made here is that as this is permitted, such instruction occurs at public expense. 113 Paul Rishworth ―Address to New Zealand Diversity Forum on Religion and Schools‖ (Speech delivered at the Holy Trinity Cathedral, Parnell, Auckland, 27 August 2007) 6 (―Address to New Zealand Diversity Forum‖). 114 Private Schools Conditional Integration Act 1975, s 32. Important legislation that integrated schools become subject to for the purposes of this seminar is the Education Act 1989 and the Education Act 1964. 115 Private Schools Conditional Integration Act 1975, s 2(1). 116 Educational Institutions and their Contact Details (2009) Education Counts (at 28 August 2009). 117 Private Schools Conditional Integration Act 1975, s 65. 118 Private Schools Conditional Integration Act 1975, s 32.

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philosophical affiliations. Section 32 (2) of the Act does however require the school to be responsive to the sensitivities of these pupils through the allowance of students to not participate in the observances or instruction upon receiving notice from their parents. A Historical Inclinations of Secularity

The introduction of integrated schools is peculiar given the policy of secularism in the Education Acts of 1877 and 1964. When considering these sections, the Report of the Commission on Education commented that they ‗mark[ed] the rejection by the State... of any form of financial or administrative partnership between the State and the religious denominations in the field of public education.‘ 120 State aid of religious schools has long been contested in Parliament. One such instance occurred in 1965 when the legislature was petitioned to introduce state funding to private schools. At the time of consideration, this meant the introduction of state funding to Protestant and Catholic institutions. Professor C.L Bailey noted in a submission to the Select Committee on Education that121
New Zealand has adhered to the separation of Church and State, a decision arrived at after the most thorough and searching examination of its mind. It is a conviction of the great majority of New Zealanders, and accepted by successive Governments, that the long and well laid tradition of separation should continue, and that the State in consequence should abstain both from teaching religion or from financially aiding the teaching of religion; it should neither hinder it nor promote it.

Although the petition was thoroughly reasoned, all but a few of the submissions were in opposition to its proposal; of those few, none were wholeheartedly in support and instead couched their agreement with qualification. Opposition came from many sources, including individuals speaking on behalf of other religious bodies such as the Anglican Archbishop of 122 New Zealand. Such objections usually rested upon a combination of several considerations: which, apart from the general discussion of separation of Church and State, proposed that State aid would lead to fragmentation of the State system, social divisions among our people, and a resurgence of sectarianism.123 B Contemporary Inclinations of Neutrality

In spite of the clear establishment-style interpretation of the secular clause carried through the Education Act, New Zealand has moved instead towards a model of neutrality when organising State and church relations.124 This has meant that religious instruction may be justified to the extent that it serves to promote parental rights to have their children educated in a manner that gives recognition to their religious belief.125 The right of a parent to send their children to private education has been generally recognised and seen as a safeguard for parental liberty.126 However, many parents who want a religious education for their children are unable to pay the necessary fees. If such a model of neutrality is followed, state schools may leave room for some religious instruction insofar as it ensures
120 121 122 123 124 125 126

Report on Education, above n 101, 710. Ibid. (1956) 310 New Zealand Parliamentary Debates 2725 (D.M. Rae). Ibid. 2736. Rishworth, ―Address to New Zealand Diversity Forum‖, above n 113, 8. Ibid. Ibid. See also Pierce v Society of Sisters of the Holy Names of Jesus and Mary 268 US 510 (1925), where it was held that no state could require its students to attend only the state‘s schools.

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equal provision of access to the parental liberty in a way that not only treats all religions equally but also treats religion in the same manner as secular or philosophical beliefs. New Zealand has taken care that its approach in this area has been even-handed: ‗special character‘ as defined by the Act is neutral between religion and other special educational approaches.127 The Act‘s funding scheme mirrors the funding a non-integrated school is given per pupil enrolled.128 The scheme therefore remains completely neutral with respect to religion, gives no incentives towards religious options and provides parents with genuine, practical and legitimate secular options. Set out in this manner, it is clear that this policy ‗confers educational assistance directly to a broad class of beneficiaries defined without reference to religion‘, and should not be seen as a breach of religious freedoms or unnecessary entanglement by the state.129 C Comparative Jurisdictions

New Zealand differs from the United States, where only trivial amounts of funding are routed to private schools that offer a religious education.130 In contrast to this is Canada‘s constitutional partiality to Catholic schools: a preference which is difficult to ameliorate with the equality provisions of their Charter. Section 15 guarantees equality at the same time that section 29 of the Charter reaffirms the right as given in section 93 (2) of the Constitution Act 1867— that Catholic schools are to be given funding and that provincial governments are to have jurisdiction over educational matters. This has been challenged in several ways. It has been held by the Supreme Court that issues regarding funding of denominational schools cannot be challenged on Charter grounds.131 The argument put forward by the plaintiff in the case of Adler v Ontario was the assertion that the lack of government aid for Jewish Canadian schools and other certain Christian schools was unconstitutional given the funding that Catholic schools received. When this case went before the United Nations Human Rights Commission (‗the Commission‘), it declared in 1999 that Ontario was in violation of international obligations under the ICCPR by exclusively funding Catholic schools.132 Although Big M Drug Mart introduced a potential reading of freedom of religion clauses with an establishment lens, the Commission‘s decision reflected instead a ‗neutrality‘ reading. What was unconstitutional in the eyes of the Commission was that Ontario did not provide funding for all religions, rather than the fact that they were providing funding to any.133 The consequences of this decision in Canadian law are uncertain. Canada ratified the ICCPR in 1976, binding them to Art 50 that provides that ICCPR provisions ‗shall extend to all parts of federal States without any limitations or exceptions.‘134 This seems to indicate that although provincial governments have the appropriate jurisdiction, Canada‘s ratified obligations to international law trickle down so as to have the principles apply to provinciallevel legislation. However, as seen in other jurisdictions, finding the grounds by which
127 128

129 130 131 132 133 134

Private Schools (Conditional Integration) Act 1975, s 2. An Education with a Special Character: Public Discussion Paper on the Private School’s Conditional Integration Act 1975 (Ministry of Education, Wellington, 2003) 8. Zelman v Simmons-Harris, above n 19. Rishworth, ―Address to New Zealand Diversity Forum‖, above n 113, 6. Adler v Ontario [1996] 3 SCR 609, a case that applied s 29 of the Canadian Charter of Rights and Freedoms. Ibid. Ibid. Contact your Federal MP (2006) Parents for Equality in Education (at 28 August 2009).

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federal government can enforce ICCPR principles in areas where provincial government has jurisdiction is a difficult matter.135 Canada‘s position is the result of the powerful tension between several principles and attitudes: the perception that one section of the Charter should not be able to supersede another, the commitment to honour a treaty that has been ratified into Canadian law, and the reluctance to change their Constitution Act in order to reflect such commitments. Dealing with state-religion tensions is less complicated in New Zealand without the dynamic of federal and provincial law. Apart from noting the potential intricacies of reconciling inconsistent principles, what should be taken from the Canadian situation is the fact that the Commission‘s final decision reflected a guideline of neutrality in regards to the state‘s position on funding religious schools. D Conclusions

Even if the issue avoids litigation by being framed as an issue of parental choice, integrated schools have little in the way of formal assessment of their special character, despite the nature of the school being set out in its integration agreement with the Minister of Education.136 Education Review Office (―ERO‖) reports for integrated schools make passing reference to the special character of a school has but takes little analysis of the area: there is no standard of character or review by which an integrated school is held.137 There are obvious theoretical and pragmatic obstacles in attempting to create objective means of a school‘s ‗special criteria‘. Though not as restrictive as its American counterpart, NZBORA‘s section 15 freedom from coerced religion may possibly be at issue when the legitimacy of a school must meet particular requirements as to its ‗special character‘. Practically speaking, the implementation of such a policy would also face difficulties in ensuring content-neutral criteria that does not favour one form of special character to another. However, if such a large discretion is given to School Boards in the very area by which a school distinguishes itself, oversight in how this area is sustained should be considered. This would be valued by parents trying to choose a school that stays faithful to the tenets of their religious beliefs.138 It is interesting that historical legislation has shown a preference for separation of Church and State in the days where holding a Christian faith was more widespread. This peculiarity is mirrored when reflecting on the contemporary issues regarding freedom of religion: as faith is further relegated to the status of an individual‘s private choice, the State has become increasingly involved in distributing aid to bodies that have religious objectives. Given the extensive debate that occurred in consideration of the petition to Parliament in 1965, the decision only ten years later to fundamentally alter the dynamic of religion in schools is a

135

136 137

138

Commonwealth v Tasmania (1983) 158 CLR 1 provides the possibility that Canada may be able to legitimately enforce the decision through asserting that such an action comes under the use of its ‗external affairs‘ power for the purposes of maintaining international obligations; any further detail as to the merits of this argument is beyond the scope of this paper. Private Schools Conditional Integration Act 1975, s 7. The New Zealand Herald noted that contact with the ERO yielded the information that it was the Association for the Proprietors of Integrated Schools that reviewed a school's special character, but this was denied by the Association. Jehan Casinader ―Integrated Schools — Compromising their Character?‖ New Zealand Herald (Auckland, 29 July 2006). Ibid.

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clear example of the State‘s move away from strict Establishment Clause jurisprudence to the position that public bodies are to be inclusively neutral in respect of religion. VII CONCLUSION

The New Zealand Government‘s treatment of religion has never been entirely neutral or consistent. However, as the erosion of the de facto establishment of Christianity continues, religion has not been relegated to the private sphere as expected: instead, it continues to have a presence in state affairs.139 New Zealand is comfortable with the idea of a ‗public official on the public payroll performing a religious exercise in a government institution.‘140 This seminar paper has sought to outline New Zealand‘s law regarding the freedom of religion and compared domestic and foreign religious freedom provisions that establish models of anti-establishment and neutrality. It discussed the validity of legislative prayer and evaluated the competency of the ‗ceremonial deism‘ defence, reaching the conclusion that New Zealand should not cling to outdated or obsolete religious practices if they act to the detriment of other citizens. As stated in Schempp,141
[O]ur religious composition makes us a vastly more diverse people than were our forefathers ... In the face of such profound changes, practices [in the past] which may have been objectionable to no one in ... may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.

This paper also acknowledges that a freedom of religion provision interpreted as not privileging any one faith above another is complicated in New Zealand because of the holistic approach of Maori jurisprudence. Treaty obligations and the model of neutrality allow the state to leave room for the religious expression of its indigenous people; however, a logical consequence of such a principle requires the acceptance of blessings by other faiths to be permitted equally into public ceremonies. In dealing with the state and religion in education law, the theme of neutrality is found to be further manifested (albeit with minor issues) in the policy of religious instruction in schools and state funding of education that espouses a religious character. In examining these areas, New Zealand‘s interpretation of the intersection between religion and the government is decidedly different to that of the United States. The anti-establishment principle, while present in some situations, often comes second to the prevailing desire of equal liberty through the inclusion of all rather than the exclusion of all. This approach will prove itself to be useful. Reference to becoming a 'post-Christian' society does not imply a ‗post-religious‘ society, where religion is regarded as irrelevant.142 Such issues remain contested as New Zealand increasingly accommodates a multicultural nation of people practicing divergent religious beliefs. Adopting inclusive neutrality in public bodies and public occasions is therefore the most suitable reading of freedom of religion sections as it reduces the exclusionary effect to those that hold different beliefs in our pluralistic society.

139 140 141 142

Adhar, above n 20, 460. Engel v Vitale, above n 87. Abington School District v Schempp, above n 66, 240–241. Adhar, above n 20, 481.

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Journal Articles White Paper, A Bill of Rights for New Zealand [1985] AJHR A6, 81 Adhar, Rex J. ―A Christian State?‖ (1996–1999) 13 JL & Religion 453 Sutherland, Arthur E. Book Review (1964) 40 Ind LJ 83 Rishworth, Paul. ―The Religion Clauses of the New Zealand Bill of Rights‖ [2007] NZ Law Rev 631 Epstein, Steven B. Rethinking the Constitutionality of Ceremonial Deism (1996) 96 Colum R Rev 2083 Modood, Tariq. ―Establishment, Multiculturalism and British Citizenship‖ (1994) 65 Political Q 53 New Zealand Cases Church v Hawkes Bay Regional Council (26 March 2001) CRT 04/01. Mabon v Conference of the Methodist Church of New Zealand [1998] 2 NZLR 513. Rich v Christchurch Girls' High School Board of Governors (No 1) [1974] 1 NZLR 1. Canadian Cases Adler v Ontario [1996] 3 SCR 609 Freitag v Penetanguishene (Town) (1999) 179 DLR (4th) 150 (Ont CA) R v Big M Drug Mart (1985) DLR (4th) 321 R v Oakes [1986] 1 SCR 103 (SCC) Zylberberg v Sudbury Board of Education [1988] 52 DLR (4th) 577

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American Cases Abington School District v Schempp 374 US 203, 308 (1963). Board of Education of Kiryas Joel Village School District v Grumet 512 US 687, 696 (1994). Capitol Square Review & Advisory Board v Pinette 515 US 753 (1995). County of Allegheny v American Civil Liberties Union 492 US 573, 625 (1989) Edwards v Aguillard 482 US 578 (1987). Elk Grove Unified School District v Newdow 542 US 1 (2004). Engel v Vitale 370 US 421, 431 (1962). Everson v Board of Education 330 US 1, 16 (1947) Lee v Weisman 505 US 577 (1992). Lemon v. Kurtzman 403 US 602 (1971). Lynch v Donnelly 465 US 668 (1984). Marsh v Chambers 463 US 783 (1983). Mitchell v Helms 530 US 793 (2000). McCollum v Board of Education 333 US 203 (1948). Pierce v Society of Sisters of the Holy Names of Jesus and Mary 268 US 510 (1925). Santa Fe Independent School District v Doe (2000) 530 US 290 Wallace v Jaffree 472 US 38, 70 (1985) Zelman v Simmons-Harris 536 US 639 (2002). Australian Cases Commonwealth v Tasmania (1983) 158 CLR 1 New Zealand Legislation Education Act 1964, ss 79-81. Human Rights Act 1993 s 21. New Zealand Bill of Rights Act 1990, ss 13, 15, 19, 20. Private Schools Conditional Integration Act 1975, ss 2, 7, 32, 65, Canadian Legislation The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, ss 2, 15. American Legislation US Const, am 1. United Kingdom Legislation 13 Eliz I, c.12, art 37. Other Sources (1956) 310 New Zealand Parliamentary Debates 2725 (D.M. Rae). Annotated Standing Orders of The House of Commons 2005 (2nd ed), ch IV (Can) Casinader, Jehan. ―Integrated Schools — Compromising their Character?‖ New Zealand Herald (Auckland, 29 July 2006). Fox, Elizabeth G. Interview with Paul Rishworth (26 August 2009). International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR, supp No 16 (1966), s 18(3). Petition 2002/83 of Dr Anthony Hochberg and Nine Others (Relating to the Parliamentary Prayer): Report of the Standing Orders Committee [2002] AJHR (―Report of the Standing Orders Committee‖).

24

Rishworth Paul. The Canadian Charter of Rights and Freedoms: Implications for a Bill of Rights in New Zealand (MJur Thesis, The University of Auckland, 1985) Rishworth, Paul. ―Address to New Zealand Diversity Forum on Religion and Schools‖ (Speech delivered at the Holy Trinity Cathedral, Parnell, Auckland, 27 August 2007) 6 (―Address to New Zealand Diversity Forum‖). Standing Orders 2008, r 59 Contact your Federal MP (2006) Parents for Equality in Education (at 28 August 2009).

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