Freedom of Religion under Bills of Rights

467 Pages·2012·4.47 MB·English

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Freedom of Religion
under
Bills of Rights
For our families
Freedom of Religion
under
Bills of Rights
Edited by
Paul Babie and Neville Rochow
Published in Adelaide by
University of Adelaide Press
Barr Smith Library
The University of Adelaide
South Australia
5005
[email protected]
www.adelaide.edu.au/press
The University of Adelaide Press publishes externally refereed scholarly books by staff of the University of
Adelaide. It aims to maximise the accessibility to its best research by publishing works through the internet as
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Please use the electronic version to serve as the index.
© 2012 The Authors
This book is copyright. Apart from any fair dealing for the purposes of private study, research, criticism or
review as permitted under the Copyright Act, no part may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise
without the prior written permission. Address all inquiries to the Director at the above address.
For the full Cataloguing-in-Publication data please contact National Library of Australia
ISBN (electronic) 978-0-9871718-1-8
ISBN (paperback) 978-0-9871718-0-1
Book design: Midland Typesetters
Cover design: Emma Spoehr, John Emerson, Paul Babie
Paperback printed by Griffin Press, South Australia
Contents
Acknowledgments vii
List of Contributors ix
Foreword by The Hon Sir Anthony Mason AC KBE: Human Rights and
Courts xi
INTRODUCTION
1 Protecting Religious Freedom under Bills of Rights: Australia as Microcosm 1
Paul Babie and Neville Rochow
SETTING THE SCENE
2 How Religion Constrains Law and the Idea of Choice 12
Ngaire Naffine
3 Is the Emperor Wearing the Wrong Clothes? Human Rights and Social
Good in the Context of Australian Secularity: Theological Perspectives 29
Bruce Kaye
4 Anniversary Overlap: Or What happens when St Paul Meets the Universal
Declaration of Human Rights 51
Alan Cadwallader
CONTEMPORARY FREEDOM OF RELIGION ISSUES
5 Defamation and Vilification: Rights to Reputation, Free Speech and
Freedom of Religion at Common Law and under Human Rights Laws 63
Neil Foster
6 Should an Australian Bill of Rights Address Emerging International
Human Rights Norms? The Challenge of ‘Defamation of Religion’ 86
Robert C Blitt
7 Christian Concerns about an Australian Charter of Rights 117
Patrick Parkinson
8 Apostasy in Islam and the Freedom of Religion in International Law 152
Asmi Wood
v
Freedom of Religion under Bills of Rights
COMPARATIVE EXPERIENCE WITH FREEDOM OF RELIGION
Europe
9 Political Culture and Freedom of Conscience: A Case Study of Austria 172
David M Kirkham
10 The Sky is Falling if Judges Decide Religious Controversies! –
Or is it? The German Experience of Religious Freedom Under a Bill of Rights 190
Cornelia Koch
11 Religious Freedom in a Secular Society: The Case of the Islamic Headscarf
in France 216
Nicky Jones
12 Religious Freedom in the UK after the Human Rights Act 1998 239
Ian Leigh
North America
13 Judicial Interpretation, Neutrality and the US Bill of Rights 253
Frank S Ravitch
14 Protecting Religious Freedom: Two Counterintuitive Dialectics in
US Free Exercise Jurisprudence 285
Brett G Scharffs
15 Walking the Tightrope: The Struggle of Canadian Courts to Define
Freedom of Religion under the Canadian Charter of Rights and Freedoms 321
Barbara Billingsley
16 Quo Vadis The Free Exercise of Religion? The Diminishment of Student
Religious Expression in US Public Schools 349
Charles J Russo
Australia and New Zealand
17 Freedom from Discrimination on the Basis of Religion 365
Kris Hanna
18 Ruminations from the Shaky Isles on Religious Freedom in the Bill of
Rights Era 371
Rex Tauati Ahdar
19 Indigenous Peoples and Bills of Rights 393
Paul Rishworth
TABLE OF LEGISLATION AND INTERNATIONAL INSTRUMENTS 422
INDEX 437
vi
Acknowledgments
It goes without saying that a volume such as this would not have been possible
without the contributions and assistance of many people. The book had its genesis
in the ‘Cultural and Religious Freedom under a bill of rights’ Conference held 13-15
August 2009 at Old Parliament House in Canberra, Australia. Many of the chapters
in this volume had their first airing at that conference and we express our gratitude
to all of those who presented and participated.
The organisation of the conference was a substantial undertaking, and Stephen
Webster deserves special mention for directing the work of the Organising Com-
mittee. Of course, that organisation could not have happened without significant
support from a number of sources, to each of which we express our sincere thanks:
the International Center for Law and Religion Studies at Brigham Young University
Law School and its sponsor, the Church of Jesus Christ of Latter-day Saints, the
Adelaide Law School, The University of Adelaide Research Unit for the Study of
Society, Law and Religion (RUSSLR), the University of Auckland, the University
of Otago, Durham University, The Group of Eight Universities, ATF Press, and the
Australian Human Rights Commission.
A number of valued contributors both to the conference and to the book deserve
special mention: the former Chief Justice of Australia, Sir Anthony Mason AC, KBE,
whose conference keynote address appears in revised form in this volume; Professors
W Cole Durham, Jr, and Brett G Scharffs from Brigham Young University Law
School; Dean Rosemary Owens and Dean John Williams of the Adelaide Law School;
the Archbishop of Adelaide, the Most Rev Philip Wilson; Dean Carolyn Evans of the
Melbourne Law School; Dean Bruce P Elman of the University of Windsor Faculty
of Law; Nigel Wilson and Peter Burdon of the Adelaide Law School and RUSSLR,
and; Hilary Regan of ATF Press.
We are, of course, indebted to Ben Mylius (LLB candidate, Adelaide, 2012) for
research and editorial assistance, and to our publisher, The University of Adelaide
Press, and its Director, Dr John Emerson, and its Commissioning Editor, Dr Patrick
vii