Religion and the constitution: A response to luke beck’s safeguard against religious intolerance theory of section 116

This article critiques Luke Beck’s ‘safeguard against religious intolerance’ theory of section 116 of the Constitution. We argue that a plausible theory of section 116 must be able to account for the fact that, at Federation, Australia was an overwhelmingly Christian nation, which was opposed to the establishment of any religion but was not ‘secular’, and also for the fact that Australian society has become less religious but with many surviving remnants of the enmeshing of religion and the government. We argue that, consistent with the traditional understanding, section 116 has a federal purpose, being designed to distribute power to legislate in relation to religion throughout the Australian federation. Section 116 can also be seen as promoting religious pluralism, enabling interactions between religion and government. Beck’s theory, and its separationist implications, fails to adequately take these factors into account.