§ 462. “Any Religion or … any Religious Observance.”

The Commonwealth is forbidden to make any law for establishing any religion or for imposing any religious observance. A preliminary observation which should be made is that the term Commonwealth as used in this section does not mean the Federal community, but the Government of the Commonwealth acting through any of its agencies or instrumentalities. The people and States constituting the Federal community could at any time interpose and amend the Constitution in order to authorize the enactment, by the Federal Parliament, of the laws now prohibited. The prohibition itself and the circumstances under which it has found a place in the Constitution next demand attention.

By the establishment of religion is meant the erection and recognition of a State Church, or the concession of special favours, titles, and advantages to one church which are denied to others. It is not intended to prohibit the Federal Government from recognizing religion or religious worship. The Christian religion is, in most English speaking countries, recognized as a part of the common law. “There is abundant authority for saying that Christianity is a part and parcel of the law of the land.” (Per Kelly, C.B., in Cowan v. Milbourn [1867], L.R. 2 Ex. 234.) In America the courts of the Union and of the States find it necessary, in administering the common law, to take notice that the prevailing religion is Christian. (Vidal v. Girard's Executors, 2 How.

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127.) Consequently the fundamental principles of the Christian religion will continue to be respected, although not enforced by Federal legislation. For example, the Federal Parliament will have to provide for the administration of oaths in legal proceedings, and there is nothing to prevent it from enabling an oath to be taken, as at common law, on the sanctity of the Holy Gospel. (Cooley's Principles of Const. Law, 224)

In considering the question of religion, the Federal Convention was called on to decide (1) whether it was advisable to grant substantive power of this kind to the Federal Parliament; and if not, (2) whether it was necessary to deny this power to the Federal Parliament. As regards the first question, it was not seriously suggested that any such power should be granted. The only arguable point was whether it ought to be denied, and if so, to what extent? The Federal Parliament is a legislative body capable only of exercising enumerated powers. Its powers are determined and limited by actual grants to be found within the Constitution. Anything not granted to it is denied to it. If it is not granted the power to deal with religion, it cannot legislate concerning religion. It is superfluous to deny to it what is not granted—what it does not possess. The force of this reasoning, based on recognized canons of federal construction, was generally conceded. At the same time it was found that the American Constitution contained two important negative sections relating to religion. As originally drawn, that Constitution, in Art. VI., s. 3, declared that no religious test should ever be required as a qualification for an office or public trust under the United States Government. By the first amendment it was provided that Congress should make no laws respecting an establishment of religion or prohibiting the free exercise thereof. The prohibition of religious tests was a denial of power—a denial which was necessary, because otherwise there would have been nothing to prevent the Federal legislature, in defining the qualifications for federal office, to impose such tests. It was therefore a provision of practical use and value. The prohibition contained in the first amendment was one of the ten articles in the so-called “American Bill of Rights” adopted after the establishment of the Union, in order to satisfy popular demands and sentiments. No logical or constitutional reasons have been stated why such a negation of power which had never been granted and which, therefore, could never be legally exercised, was introduced into the instrument of Government. It does not appear that its necessity has ever been demonstrated. Still, that was one of the grounds on which Mr. H. B. Higgins asked the Convention of 1898 to adopt the section now under consideration.

The strongest argument, however, for the adoption of the earlier portion of sec. 116, was found in the special form of the preamble of the Constitution Act, which recites that the people of the colonies, “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Commonwealth.” Referring to this recital, it was stated by Mr. Higgins that, although the preamble to the Constitution of the United States contained no such words as these, it had been decided by the courts in the year 1892 that the people of the United States were a Christian people; and although the Constitution gave no power to Congress to make laws relating to Sunday observance, that decision was shortly afterwards followed by a Federal enactment declaring that the Chicago Exhibition should be closed on Sundays. This law, he said, was passed simply on the ground that among Christian nations Christian observances should be enforced. (Conv. Deb., Melb., p. 1734.) If, then, such Federal legislation could be founded on a Constitution which contained no reference whatever to the Almighty, how much more likely was it that the Federal Parliament might, owing to the recital in the preamble, be held to possess power with respect to religion of which we have no conception. Consequently, argued Mr. Higgins, the power to deal with religion in every shape and form should be clearly denied to the Federal Parliament. These arguments were allowed to prevail, and the provisions of sec. 116 became part of the Constitution. (See, however, note, § 4, supra, “Humbly relying on the blessing of Almighty God,” and Church of the Holy Trinity v. United States, 143 U.S. 457, there cited.)

The appearance of this section in a chapter purporting to deal with the States is

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somewhat anomalous; it can only be accounted for by the fact that it took the place of clause 15 of Ch. V. in the Draft Bill of 1891, which declared that a State should not prohibit the free exercise of any religion. How such a clause crept into the Bill of 1891 it is difficult to conjecture. It was rejected without hesitation by the Convention of 1898, which saw no reason or necessity for interfering with the States in the free and unfettered exercise of their power over religion.

Whilst the Constitution forbids the Federal Parliament to interfere with the free exercise of religion, it does not make any provision for protecting the citizens of the States in their religious worship or religious liberties; this is left entirely to the State Constitutions and laws, and there is no inhibition in regard to the subject imposed upon the States. (Permoli v. First Municipality, 3 How. 589; Ex parte Garland, 4 Wall. 398. Baker, Annot. Const. p. 179.)

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, and this section cannot be invoked as a protection against legislation for their punishment. (Reynolds v. United States, 98 U.S. 145; Davis v. Beason, 133 U.S. 333. Id.)

“In the great case of Reynolds v. United States, the constitutional immunity of the individual in respect to the freedom of religion and worship was fixed and defined. The court declared that by this constitutional restriction Congress is deprived of legislative power over opinion merely, but is left free to reach actions which it may regard as violations of social duties or as subversive of good order. The free exercise of religion secured by the Constitution to the individual against the power of the government is, therefore, confined to the realm of purely spiritual worship; i.e., to relations between the individual and an extra-mundane being. So soon as religion seeks to regulate relations between two or more individuals, it becomes subject to the powers of the government and to the supremacy of the law; i.e., the individual has in this case no constitutional immunity against governmental interference.” (Burgess, Political Sc. I. p. 194.)

An appropriation of money to a hospital conducted by a Roman Catholic sisterhood is not a law respecting an establishment of religion. (Bradfield v. Roberts, 175 U.S. 291.)

Rights of residents in States.

117. A subject of the Queen463, resident in any State463A, shall not be subject in any other State to any disability or discrimination464 which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

UNITED STATES.—The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.—Const., Art. IV., sec. 2.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State .… deny to any persons within its jurisdiction the equal protection of its laws.—Fourteenth Amendment, sec. 1.

HISTORICAL NOTE.—Clause 17, Chap. V., of the Commonwealth Bill of 1891 was:—

“A State shall not make or enforce any law abridging any privilege or immunity of citizens of other States of the Commonwealth, nor shall a State deny to any person, within its jurisdiction, the equal protection of the laws.”

At the Adelaide session, 1897, this was adopted verbatim. At the Melbourne session, it was proposed, on the suggestion of the Legislative Assembly of New South Wales and the Legislative Council of Tasmania, to omit the first portion. No one was able to suggest a privilege or immunity of a citizen of one State which could be abridged by a law of another State, and it was pointed out that there was no definition of citizenship. Mr. Barton and Mr. Wise wished to give the citizens of each State the privileges and immunities of citizens of the other State; Mr. Reid and Mr. Symon said that this would be an interference with the independence of States, and that the Convention was only concerned with protecting the federal citizenship. Mr. Wise, as a test question,

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moved the first few words of an amendment suggested by the House of Assembly in Tasmania, based on the fourteenth amendment of the American Constitution, and declaring that the citizens of each State should be citizens of the Commonwealth, and entitled to all the privileges and immunities of citizens of the Commonwealth in the several States. After debate, this was negatived by 24 votes to 17; and the words dealing with privileges and immunities were then struck out. An amendment by Mr. O'Connor, to add “deprive any person of life, liberty, or property without due process of law,” was negatived by 23 votes to 19. An amendment by Mr. Glynn, to add “deny to the citizens of other States the privileges and immunities of its own citizens,” was also negatived, and the whole clause was struck out. (Conv. Deb., Melb., pp. 664–91.) At a later stage Dr. Quick moved to insert in the “powers of Parliament” clause a new sub-clause—“Commonwealth citizenship.” The importance of the question was recognized; but there were three different opinions expressed:—(1) That the Parliament should have power to deal with the question; (2) that citizenship ought to be defined in the Constitution itself; (3) that the rights of citizenship were already secured in the Constitution, and that citizenship itself had never been defined in Great Britain, and was better not defined. The sub-clause was negatived by 21 votes to 15. (Conv. Deb., Melb., pp. 1750–68.) On the reconsideration of clauses, Mr. Symon moved, in place of the clause struck out, to insert:—“The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Dr. Quick moved as an amendment to insert a definition of Commonwealth citizenship:—“All persons resident within the Commonwealth, being natural-born or naturalized subjects of the Queen, and not under any disability imposed by the Parliament, shall be citizens of the Commonwealth.” This was thought too wide, and opinions were expressed that the better plan would be to empower the Parliament to deal with the question. Mr. O'Connor then moved to insert:—“Every subject of the Queen, resident in any State or part of the Commonwealth, shall be entitled in any other State or part of the Commonwealth to all the privileges and immunities to which he would be entitled if a subject of the Queen resident in that latter State or part of the Commonwealth.” This was objected to as being too wide, and making residence in one State equivalent to another, for all purposes. It was suggested that the clause should be put negatively, instead of affirmatively, and Mr. O'Connor then proposed it as follows:—“No subject of the Queen, resident in any State, shall be subject in any other State to any disability or discrimination not equally applicable to the subjects of the Queen in such other State.” This was agreed to. (Id. pp. 1780–1802.) After the second report Mr. Deakin moved to substitute “such” for “the” before “subjects,” in order to indicate to the Drafting Committee that State rights of defining citizenship were not interfered with. This was agreed to. Drafting amendments were made after the fourth report.