The following notes are from the address given by Paul Rishworth, Professor and Dean of Law at the University of Auckland, to the Human Rights Commission's Diversity Forum on Religion in Schools, Auckland, August 2007.  In this address, Professor Rishworth considers three views of state/church relationships (separation, state religion, and informed neutrality) and applies these to the question of religious education. [NB - these are Professor Rishworth's actual speech notes so still include typos, etc.  Because of the importance of the points we are grateful for the opportunity to share these notes with the reader).

One point of interest is that the phrase "freedom of religion" is really only a slogan, and even the United Nations accepts that this can exist even in countries where there is a state religion.

By observances we mean such things as prayer, readings of sacred texts, and singing, which are expressions of a religious faith.

The question we are to look at in this session is what should the role of the state be in matters of religion? In particular, what scope, if any, is there for religious instruction and observance in state schools?

Our existing law and practice obviously assumes a certain answer to that question: that is, the Education Act makes instruction and observance possible in state schools - both primary and secondary (though this comes about in a slightly different way for each, as I shall discuss).

I am going to look at the way this works, or ought to work. But it is much better to begin by asking a more fundamental question: What should our law permit or require? (Rather than what does it permit or require?]

Let me sketch 3 simple models of how church and state might interact.

First is the separation model. This model is often described by a famous metaphor of Thomas Jefferson: the "wall of separation". That comes from a letter by Jefferson to the Danbury Baptists Association in 1802, and it was taken up in the 20th century by the US Supreme Court when it began to get cases about prayer in schools and the funding of Catholic schools.

The separation motif suggests that church and state must be kept rigorously separate; that religion be left for the private sphere. It is best exemplified by the USA whose famous Bill of Rights begins with the words "Congress shall make no law respecting an establishment of religion, nor abridging the free exercise thereof".

In other words, the people were telling the state, by passing the Bill of Rights: "don't have a religion, and don't interfere in our religion".[2]

And these, of course, were in the main fervently religious persons who believed that religion and the state flourished best when they were separate.

Over time, as interpreted by the US Supreme Court, the message to the state "don't establish a religion" has come to mean "don't support or endorse a religion"; "don't offer support to any one or even all religions". "Don't take a position on religion" - because ""taking a position" works as a subtle form of coercion. It serves to remind all those who do not share the religion espoused by the state that they are outsiders, and not full members of the political community.

This is what the US school prayer cases were saying in the early 1960s. The Court held it was an unconstitutional establishment of religion for a school district to require a prayer, that it composed, to be said at the start of each school day.

Note that even then, nobody was suggesting for a moment that students be forced to say the prayer. It was axiomatic that they had the freedom not to. That was the second part of the Bill of Rights: everyone has the right to the free exercise of religion and that means they cannot be forced to say a prayer. But what the school prayer cases were about was a different point: that the schools should not even have prayer in the first place, so that non one should even be put in the position of opting out. And so too with religious instruction.  It was not enough to say that people were free to opt out. First, peer pressure might mean that students would not opt out if they wanted to. But second, the state should not support or endorse religion by composing and requiring prayers.

A more recent example is the US Supreme Court in 1994 holding unconstitutional a 45 second prayer uttered at a school graduation ceremony, by a rabbi, working from instructions that his prayer be inclusive and non-sectarian. The majority of the court said that a dissenting student is coerced into conformance: he more or less has to go (it's his graduation after all). Once there has to give all the indicia of agreement, by maintaining a respectful silence.

And other examples are the scores - yes scores - of cases about religious displays at Christmas, and the holding of holidays on Christian festivals. Where the display or holiday is ruled to be a sectarian religious display, it is unconstitutional. Christmas displays are sometimes but not always allowed on the basis that their message is primarily holiday and festive, and not religion: having Santa's and reindeer and not just the Baby Jesus.

Now lest you think that these cases are all American frolics, consider the last 10 or 20 years in NZ. I detect, over that period, a general withdrawal by the state (and I include here regional and municipal government) in overly celebrating the religious aspects of Christmas. Gone are the nativity displays. What we have now are more community events, Christmas in the Park, Carols by Candlelight, in which the cultural dimensions of Christmas are celebrated in a secular sort of way. At the same time, there has been a broadening of celebratory events, Diwali and mataariki.

In other words, what in the US was a product of litigation is in NZ a product of heightened sensitivity about the fact of diversity.

So that is separation. In state schools in the US it means there should be no official religious symbolism (no 10 commandments on the walls, no pictures of Jesus on the stairways) and no prayers or Bible readings. And much litigation about all the various things that fall just short of this.

Now, let me turn to a possible second model, at the other end of the spectrum from separation: an official state religion. This is what the Establishment Clause in the US constitution says should not happen.

In fact, around the world there are numerous examples of official or state religions, where state and church are entwined in some way, often with the church receiving benefits from taxation. One thinks of revolutionary Iran as one extreme case, but let's not forget the UK where there are Bishops in the House of Lords by right, the Queen is Defender of the Faith, and by law must be a Protestant. And, of course, she is our Queen as well.

Then there are countries like Norway with an established evangelical Lutheranism.

But it is quite clear that religious freedom can exist in countries with official religions. Indeed, the international human rights tribunals of the UN and Europe are clear that the mere fact of an established religion is not contrary to any human rights norms. What counts is that persons must be free in matters of religion; and the fact of an official religion is not itself tantamount to people not being free. That is the real inquiry: are people free in matters of religion? No-one could suggest they are not free in Norway or other European countries with an established religion in the sense of a state supported one.

Let me give you an NZ example that illustrates some of these points (while raising some questions of its own!);

About 5 years ago a member of the NZ public attended a regional council hearing in Hawke's Bay at which waste water consents were on the agenda.  The hearing began with a karakia - a Maori prayer. This person, whose name was Wayne Church, complained to the Human Rights Commission. Now in the US this would have been a clear establishment clause violation. The state espousing a prayer as part of its official business (or even facilitating the private prayer of a community group) would be seen as coercive. But here in NZ that complaint was summarily dismissed by the Human Rights Commission, and then when Mr Church took it to the next level up it was dismissed on the papers without a hearing even by the complaints review tribunal. They said "his level of discomfort during the karakia cannot amount to discrimination". But in the US that level of discomfort is precisely what amounts to the establishment clause violation. People are made to feel outsiders, because the state appears to endorse, or support, a religious belief.

That Hawkes Bay example suggests that we have a sort of unexamined practice - of incorporating religion, especially Maori expression of it, into state practice - yet not regarding it as extracting any toll on those who do not believe. It is not in other words, treated as a serious assault on our freedom that the state does, in these ceremonial senses, take a position on matters of religion. Having to sit through something you don't agree with is not seen as such a serious matter. (I am not, for the moment, considering whether this is a good or bad state of affairs; just observing that it is how we have "acted" in the past and still do.)

So this second mode of dealing with religion that I am now describing - official or state recognised religion - is closer to us than we might imagine at times. There is perhaps not that much of it, but residues remain. Maori meeting protocol being brought into public, and school, events. Is a large chuck of it. The Parliamentary prayer is another example. It is retained; it is explicitly Christian. But no one is made to suffer in any way for not subscribing to it. And its simple existence is not, yet anyway, seen to be "coercive" of the freedom of non-believers.

So this second mode of dealing with religion - establishment or state support, can tolerate the state being involved with religion in some way. What really counts is whether people are free. And the fact of the state involvement does not, per se, mean they are not free.

Let me move to the third model of how the state can interact with religion. Recall, one end of the spectrum was wall of separation. The other end I have just described, is state endorsement of religion by having an official religion, or by offering some support for or expression of religious values.

My third model is what I call "informed neutrality", or as some put it "equal liberty". This model in fact best explains what we have in NZ, without realising it. To explain informed neutrality, or equal liberty" it is best to begin with how it differs from the "wall of separation" and "establishment" ends of the spectrum.

It turns out, you see, that the wall of separation metaphor or model is not as useful as you might think. Church and state cannot be wholly separate, even in the US. For example, the churches get the benefit of state services like policing and fire and other emergency services. They are not left to burn; churches do not have to employ their own police to guard their property rights. Indeed, they get tax exemptions as well.

And coming to NZ, would separation of church and state really mean that students could not get loans for theology at University? And if all law and practice was supposed to be blind to religion - supposed to do it no favours and not support it - would we really be happy? This mean that in war time we force pacifists and conscientious objectors to go to War. Would we also require Catholic doctors and nurses to perform abortions against their conscience" Would we require the Exclusive Brethren to join unions when unions were otherwise compulsory? And would we apply our anti-discrimination law even to religious groups, forcing Baptists to employ a Hindu pastor, Hindus to employ Catholics, or to make the examples more realistic, forcing evangelical churches to ordain gay priests and pastors [when they say that it is contrary to their religious beliefs to do so]?

The fact is that we and other countries have never ordered our affairs in that harsh way. We have, throughout our history, made laws that so far as possible accommodate religious conscience. Some of this is so deeply embedded we don't notice it until we look for it. For example, we don't regard it as child abuse when a parent consents to a non-surgically required operation being performed on his or her male child for purely religious reasons. (I am not saying we should, just observing how we have built the possibility of circumcision into our law.)

The point is that for a law to be fair to religion - to allow its free exercise as the US would say or the right to "manifest" religion in observance (which is the modern terminology) - laws must take religion into account. We make an informed law, one that strives to treat religion in a neutral way, that promotes the liberty of people to be religious, making an appropriate balance with the other concerns of the law.

In other words, no one suggests that law should not punish murder because some religions would wish to practice human sacrifice. But as my circumcision example shows, we have long done made exceptions for religious rituals that are judged not sufficiently harmful that they must be banned whatever their motivation.

This has generally been the NZ way: informed neutrality, or equal liberty.

Looking at education, this is how we operated in 1975 when the Catholic schools funding crisis placed the continuation of those schools in peril. The state enacted a law that allowed schools to integrate and receive public funding. This facilitated the continuing desire of Catholic parents to have their children educated in a Catholic environment - the schools were allowed to retain their "special character". But note that this was done in an equal way: the Private Schools Conditional Integration Act 1975 was neutral as between religions and also as between religion and other philosophical beliefs. We differed from Canada, for example, where only Catholics get state funding (in addition to the public schools). And we differed from the US, where only trivial amounts of state funding can be routed to religious private schools: certainly not for general teacher salaries or operating expenses.

So the NZ way to date has not been separationist. There are elements of that, as I suggested when I said that the state has retreated a little from celebrating only Christian holidays and events. Nor has it generally been at the other end of the spectrum, of officially supporting religion - though there are indeed elements of this as for example the apparent acceptance at some public events of Maori spirituality. Still, I have noted, that might be justified if it does not come at the cost of affecting anyone's freedom - and whether it does depends on context.

Much NZ experience of how the church and state interact is best explained by way of the middle ground - the idea of informed neutrality or equal liberty. Of taking religion into account, and seeking not to place impediments in the way of religious liberty.

No, let me apply all this to religion in schools particularly.

I will start with state primary schools.

The starting point was that education should be "secular". We put that in our 1877 Education Act, giving a clear answer to a major question of the day. Interestingly, the so-called "secular clause" was in fact the tail end of a longer sentence whose primary mission was to tell us how long the school day had to be: at least four hours, of which two were to be in the morning and two in the afternoon.

Therein lay the origin of the so-called Nelson system for religion education in schools. Because schools could well have 5 hours of instruction, one hour each day was technically an act of supererogation, not actually required by law. So a school could "close" for half an hour or an hour, and have religious instruction, and still observe the secular clause when considered as a whole.

By 1962 it is said that 80% of primary schools had religious instruction and observances. This was the subject of a whole chapter in the Royal Commission on education that reported in 1962 - the Currie commission.

The Currie commission approved of the Nelson scheme, and thought it should be explicitly put into law. And this led to special legislation in 1962, ahead even of the general review of the Education Act that led to the 1964 Act. It explicitly allowed schools to close for up to half an hour, later extended to an hour, for religious instruction.

Currie recommended that schools be required to ensure that students were opted into, rather than out of, religious instruction in state primary schools. When it went through Parliament the thinking was that it was administratively simpler to stick with the idea of opting out. (So, not seen as a question of principle, just administrative simplicity).

Interesting that this was happening around the very time that the US was deciding the famous school prayer ands religious instruction cases of 1962 and 1963. We were explicitly going down a different path.

So the NZ system is essentially this:

• Schools education is to be secular
• No primary school has to have religious instruction or observance
• Whether they do it is up to the locally elected school board
• If they do then the school must offer the possibility of opting out.

Note that the religion spoken of is not necessarily Christian. It is religious instruction not Christian instruction.

I will come back to some finer points shortly.

What about secondary schools? Nothing is said about religion in secondary schools in the Education Act. To the extent there is any law about it at all it is to be found in a 1971 case in the Court of Appeal. A Miss Rich had organised a walk out of the assembly at Christchurch Girls High School in protest at the religious observances, hymns and readings. She was expelled. She challenged this on procedural grounds in the courts. Part of the legal argument necessarily traversed whether a secondary school was entitled to have religious observances at all, because obviously if it was not then she could not be disciplined for objecting to them. On that point the Court said that a decision to have religious observance was within the general power of the school board to control the management of the school. They also said that a school had to permit the opting out of students (which CGHS apparently did). And so the case proceeded.

So the secondary school position is the same as in primary schools:

• School does not have to have it
• If it does, it must permit an opt out.

Now, that is a 1971 case and may not be followed in 2007.

The landscape has changed since 1990 in a major respect. In 1990 the New Zealand Bill of Rights was enacted, which guarantees freedom of religion and belief as well as the right to manifest religion and belief in worship teaching observance and practice.

What the Bill of Rights does is permit new arguments to be made in the field of religious education. They are not wholly new arguments, because it is not as if people in previous times were blind to what was at stake - how religion and schools interact. But there is no question that the enactment of an explicit Bill of Rights in 1990 has focused attention on issues like religion in schools and brought about fresh consideration of the issues. And so the question becomes, is religious instruction and observance in state schools consistent with the New Zealand Bill of Rights Act 1990?

Some might hope there is a simple answer to this. But expressions like "freedom of religion" are really only slogans, and they need to be given content by, ultimately, the courts. The experience of similar rights in other countries is a guide. But what that experience shows us, as I have noted, is that different models are possible. And that is why I began by sketching them out.

It is useful to ask two questions about religious instruction and observance in schools, and the impact of the Bill of Rights.

First, does the guarantee of religious freedom that New Zealand made in 1990 mean that the 1964 act, permitting religious instruction into schools, should go? There is a  respectable argument to that effect: it is the one that has prevailed in the US and Canada (which I haven't mentioned to this point but the Canadian courts in Ontario decided in the late 1980s that religious observances and instruction, even with an opt out, were a restriction on freedom of religion because the unwilling students would be coerced by peer pressure into not opting out).

But that argument is not all one way. There are other models, as we saw. On the "establishment" end of the spectrum, we saw that a state might have a sort of official status for religion but so long as it does not impair the freedom of non-believers to believe otherwise, it is not a breach of freedom of religion to have some special place for religious belief.

We also saw that on the equal liberty or informed neutrality model of organising state and church relations, one might justify religious instruction in schools on the basis that it serves to promote the right of parents to have their children educated in a forum that gives some recognition to their religious belief. Let me put that argument more fully now.

Constitutional law around the world recognises the rights of parents to send their children to a private education (while recognising the right of the state to ensure certain standards are reached). In general, private schools are more expensive than state schools to attend. This means the rich can afford a private religious educaiotn for their children and the not-so-rich cannot. The possibility that even a state school may leave room for some religious instruction is thus a means of ensuring a certain equal liberty, one that treats religion equally with secularism. It is informed neutrality.

Interestingly, South Africa in its Bill of Rights added, after a guarantee of freedom of religion, that this did not preclude religious observances at public events, so long as these were conducted on an equitable basis. Again, a model of liberty or neutrality; not separation.

But these are legal debates we are yet to have in a court room, because no one has taken a dispute to court yet. It certainly could happen, and the Human Rights Commission has had a variety of complaints over the years.

I said there were two aspects to the question about how the Bill of Rights affects religious instruction. The second is this. Given the law as it is (and forgetting about whether it should be changed), how should it be interpreted and applied in a manner that is most consistent with religious freedom?

Some quick points:

• Be sure about the opt out. Schools can, when applying s 78 of the Education Act, go further than the law may technically require, and move to an opt in. Indeed, is there really any difference between making sure everyone gets the chance to opt out, and asking them to opt in?
  
• Is it really workable to have opt outs at assemblies for prayer? The Currie Commission was explicit that the opt out regime worked also for prayers in assemblies, but does it, really?? Closing the school for a minute, and asking non-participants to come late, seems odd. An alternative is to do what I call "abstract and rotate". That is, religious observances might be offered at assemblies in a way that is inclusive and from which no one feels the need to opt out.  That is, prayers can be abstracted to be less sectarian (God, and not Jesus, say). And, or perhaps or, they can be rotated, so that a school gives expression to different faiths. I see nothing wrong with recognising the general prevalence of Christianity as a feature of New Zealand's heritage, while making room for other faiths. By adopting neutrality in observance, the exclusionary effect is reduced.

Now, a word about private schools:

The possibility of sending one's children for a private education is generally seen as a safeguard for parental liberty.

Though I am perhaps the only person in the world who has not read Harry Potter, the point is well made in an extract from the seventh and last volume (p. 210):[3]

"What's Voldemort planning for Hogwarts?" she [Hermione] asked Lupin. "Attendance is now compulsory for every young witch and wizard," he replied. "That was announced yesterday. It's a change, because it was never obligatory before. Of course, nearly every witch and wizard in Britain has been educated at Hogwarts, but their parents had the right to teach them at home or send them abroad if they preferred. This way, Voldemort will have the whole Wizarding population under his eye from a young age."

Now, one suspects that JK Rowling was signalling the general desirability of free choice in education, and that has certainly been the US position. Long ago in 1923 the Supreme Court ruled in a case called Pierce v Society of Sisters that it was a part of the liberty guaranteed by the US Fourteenth Amendment that no state could require its students to attend only the state's schools. That is, it had to allow private educaiotn.  The law in that case concerned Oregon where there was considerable anti-Catholic feeling so the law was essentially an attack on Catholic schools. There were various technical reasons why the case was not a freedom of religion case but all agree that if it were to happen today it would be decided as one.[4]

So the option of private schooling or home schooling is seen as a bulwark of religious freedom, certainly in the US and I suspect amongst a considerable number in New Zealand as well.

Now, as I say, the state must ensure that private schools and home schooling reaches a certain standard that ensures the appropriate education of its future citizens. And in New Zealand there is an elaborate registration and licensing and inspection regime designed to this end. But, subject only to that, the ability of persons to choose to operate schools within their own faith tradition is a vital protection of religious freedom, and must be maintained at all costs.

I have sought to set out what New Zealand's law is, and to locate that within a broader theory of how the state and religion can interact. I have sought to show different models around the world.. What we need to look for is a general theory, or orientation, to assist as we reckon with the myriad issues that arise when religion and education intersect. [The simple words "freedom of religion" and "freedom of thought and belief" don't solve problems on their own.] I have suggested that the apparent easy path - of "separation" - is not easy at all and nor does not reflect the best of our own tradition. Many people are religious; most admit to the recognition of a spiritual dimension to their lives. The studied removal from our schools of any allusion to these dimensions of human existence would actually represent a religious statement of its own. But anything that is done has to be designed to treat all beliefs equally, and that of course includes non-belief.

In the end, how religion and education intersect is a legal question, because it is something to which the Bill of Rights is relevant, and on which the courts may have the final say. But I believe it is a good thing that the courts have not been involved much to this point. The courts are there only to solve disputes that are not otherwise sorted out. Events like today's help in sortinng them out.

Anyway, it would be a mistake to think that the answers given by courts are a final answer. One only has to look at the controversy over religion in US schools to see that court decisions are often just the beginning, not the end, of a long battle for supremacy, fought by interest groups on both sides.

The New Zealand model has generally been one of informed neutrality, and it has achieved this without (for much of the time) a Bill of Rights or the assistance of courts. I hope this can continue, though I do think there is much to be learned from the experiences of other countries as they have reckoned with constitutional guarantees of religious freedom.

[1]           Although I suspect that the reality of what occurs in schools, pursuant to the statutory permission given by the Education Act for religious instruction, is that much of it is really "about" religion. It is just that it will be about Christianity, and not necessarily purporting to address the whole field. The idea of instruction "in a religion", in the sense of aiming to inculcate a faith in students, is a little narrower. Perhaps it is what persons envisaged back in 1964 and earlier, but I don't think it describes the current practice. But I may be wrong about this; one would need to know what happens on a day to day basis in schools that have religious instruction.

[2]            A fuller account of this would discuss how it came to be that the First Amendment, originally designed only to ensure that the new federal government could not establish a religion, transmuted into a restriction on even the 50 states establishing a religion.

[3]           I owe this reference to my participation on a listserv "Law and Religion" operated out of the United States

[4]           The technical reason relates to an earlier footnote: at one time it was US law that the First Amendment

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