Of Church and State

Emerson. Anne Marie, Prayer controversy: Clive Solomon walks out of meeting (Wanganui Cronicle May 31 2011)

In a nutshell: Wanganui District Councellors insist on having their opening prayers while actually in session. Micheal Laws insists that the council does not have to respect human rights (well OK: he claims that the Human Rights Tribunal has no jurisdiction over them.) Another councellor walks out over the events.

WDC is not the only councel, or even the only governing body, to hold prayers or some kind of religious ceremony as part of it's procedings. There are growing murmers about raising theocracy, religious discrimination and so on. So what is the actual status of church re state in New Zealand?

In a nutshell: there is no formal separation in law. In practise, governing bodies walk a tightrope of public opinion on this issue and so try to keep a neutral approach to religion.

The USA, by comparison, has a formal separation of church and state written into their bill of rights - called the "establishment clause".

New Zealand has a Bill of Rights, called "NZBORA".

s3b extends the act to cover "by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law." That would be District Councils - the duties are conferred or imposed by the Local Government Acts (1974 and 2002). So Mr Laws, with all due respect, pththththt!

In fact, the LGA (both of them) require that councils carry out their duties in accordance with all other acts - which would include NZBORA. So, unless there is a statute someplace which says that Councls must have a wee prayer to start session, then said prayer must be carried out according to the principles in the Bill of Rights.

Four sections are important here:
13, Freedom of religion; 15, manifestation of religion; 19, freedom from discrimination; and 20, rights of minorities.

So - each councellor individually has the right to have and practise their religions in private or in public (within the rest of the law - if your religion requires human sacrifice you dont get to claim a human rights violation when you get arrested for murder). The trouble comes when they act as members of a governing body ... when they hold a particular religious ceremony as part of being the folk in charge, they are making a statement, not of personal faith, but of what the geverning body values.

The bosses opinions tend to take on a coersive air, wether intended or not. When the boss asks other to join him in a totally voluntary prayer meeting, what would you do? You'd feel pressure right? When this is a government, any creed seen to be favored by that government looks like an endorcement of that creed at the expence of others. See the potential for claiming discrimination? It's not unlike the boss asking you to sit on his/her lap while giving you instructions ... totally voluntary of course.

Especially discrimination against minorities. Section 20 is a logical result of s19 - but by explicitly protecting minorities the act wans that "majority rules" is not a mandate to ride roughshod over the minority.

But this could be stretching the definition of "discrimination" somewhat, especially as we tend to tolerate Maori spiritual ceremonies at special civic events. Whatever, it seems WDC is treading a bit of a thin line here: there is clearly a case to answer before the HRT.

We may be prepared to put up with a bit of religious observance in out councils since, if we dont like it, we can vote them out. Think: do we really want to be governed by a bunch of people who openly claim to put some religious view ahead of their duties as councillors? That technically contravenes s10 of the LGA defining the purpose of the council ...

It turns out there is similar legislation - the Education act. This act and associated case law explicitly prevents public schools from teaching religion during school hours on the grounds that this is not what the schools are set up for. The discrimination argument has long been held to apply to schools with regard to religious teaching, prayers in school and so forth. This would appear to be nicely analogous to the local government situation - as schools may teach religion on school property, they must do so outside statutary school hours; so the coucil may hold a religious observance on council property so long it is not part of the statutary council session. This also allows the usual Maori ceremonies at dedications and opening and so on since these are not actual council business (that has already concluded - the ceremony marks this.)

It is easy to argue that a separation of church and state is essential if we are to be a free participating democracy. Perhaps it is time New Zealand had a formal establishment clause in our Bill of Rights?