Minority Religions ('Cults') and the Law:·Comparisons of the United 'States, Europeand Australia ' ,

J~m.s T Richardson JD; PhD. Professor of Sociology and Judicial Studies, University of Nevada,Reno.*

Minority religions and social policy

A number of, scholars have been resem.:ehing the 'new religions' (sometimes called 'CUlts')in the United States and elsewhere for nearly three decades, following several lines ofinquiry and using various methodologies. The research has, focused on some of the morecontroversial groups, jncluding Jesus Movement groups, such as the Children of God (nowknown as The Family), the Hare Krishna, Scientology, and the Unification Church, amongothers. Initially, research focused on recruitment and conversion practices as well as onorganisational and financial considerations. l

Recently research on the new religions has been dominated by questions having to dowith 'efforts at social control that have developed towards the new religions in Westernsocieties. Many ~iologists of religion have become fascinated by the strong public'concern about these groups which are actually quite small. and have very high attritionrates. Indeed, some commentators. have concluded that the reaction to the new groups ismore interesting and potentially enlightening than the groups themselves.2 Thus questions

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This presentation was first prepared for a public lecture co-sponsored by the T C Beirne School of Law and theDepartment of Studies in Religion' at The University of Queensland, where the author was a visitor during Springterm 1993, while on sabbatical leave from The University of Nevada, Reno. I am especially appreciative ofassistance from Richard Hutch, Associate Professor in the Department of Studies' in Religion, f-or comments on \the ideas contained herein, and to Reid Mortensen, Lecturer in the Department of Law, for assistance in under­standing the relationship of law and religion in Australia.For a sampling of major. works presenting research on new religions see E Barker, The Making of a Moonie(Oxford: Basil Blackwell, 1984); J Needleman, The New Religions (Garden City, NY: Doubleday, 1970);T Robbins, Cults, Converts, And ChariSIfIiJ (Beverly Hills, CA: Sage Publications, 1988); S Tipton., Getting Savedfrom th~ Sixties (Berkeley, CA: University of California Press, 1982); E B Rochford, Hare Krishna in AmericQ(New Brunswick, NJ: Rutgers U. Press, 1985); J Lofland, Doomsday Cult (enlarged edn, New York: IrvingtonPublishers, 1977); C Gl~k and R Benah' (eds), The New ReligiOUS Consciousness (Berkeley, CA: University ofCalifornia Press, 1976); D Bromley and A Shupe, StTQnge Gods (Boston: Beacon fress, 1981); R Wallis (~~Salvation and Protest (New York: St Martin's Press, 1919); G Mehon and R Moore (eds), The Cult Experience(New Yark: Pilgrim Press, 1982); J Richardson, M Stewart, and R Simmonds, Organized Miracles (New Bruns­wick, NJ: Transaction Books, 1979); J Richardson (00), Money and Power in the New Religions (New Yen:Edwin Mellen, 1988); T Robbins and D Anthony (eds), In Gods We Trust (New Brunswick, NJ: TransaetlonBooks, 1981); D Bromley and J Hadden (008), The Handbook of Sects and Cults in America (Greenwich, Cf:JAI Press, 1993).See J Beckford, Cult Controversies (London: Tavistock. 1985) for discussion of the controversy surroundiDg I)CW

religions in the United States and several Western European countries. See E Barker, New Religious Movements(London: HMSO, 19&9)., T Robbin~ W Shepherd, and J McBride (eds), Cults, Culture and the l8w (ChKio~CA:Scholars 'Press, 1985), and D'Bromley and J Richardson (eds), The Brainwashing!Deprogromming Controversy(New York: Edwin Mellen, 1983) for general discussions of major controversies surrounding new reti~ andA Shupe and D Bromley (eels), Anti-CIIl, Movements in Cross-Cltbural Perspective (New York: Gar~ Pub­lishing, 1994) for a worJd..wide view of the growing coocem about newer religious groups. Also see C Durham,'Treatment of Religious Minorities in the United States', in The Legol StatIU Of Religious Minorities in theCotmtries of the European Union (Proceedings of a meeting of the EumpeaA Consortium for OlDrch-StaaeReseareb~ Thessaloniki~ Nov 1~2n 1993), for discussion of legal impIicaaions of~ to new religions.

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184 James Richardson

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about the development of social pOlicy concerning exotic religions have become a majorfocus of scholarly interest., '

Scholars of social policy toward religious groups have become aware that contemporary. 'new religions' are but part of a broader tapestry of smaller religious groups in modem

Western societies. Some of these groups have been crucial in determining social policytoward religious freedom, and indeed, toward social experimentation ingeneral.3 Included \in this more expansive history in the United States, for example, are religious groups such

, as the Jehovah's, Witnesses, Seventh Day Adventists, Mormons, Amish, ChristianScientists, and the Native America Church, to name a few that have developed vivid legalhistories as they Ilave defended rights of religious freedom. The term 'minority religion'wil~ be used herein when discussing religious groups and the law to encompasscontemporary new religions, and also to cover some of 'yesterday's cults' that have playedsuch a significant role in policy development toward religious freedom..

As we address the question of social control of minority religions we examine first theAmerican situation in some depth, and then discuss the 'new Europe' and Australia. Thediscussion will be in part adiscourse on freedom of religion in these societies, with anoverall theme of grave COllcern about the freedom of religion which 'seems in danger ofbeing ignored or eroded in some, major Western societies. Prior to this examination in thethree countries, a conceptual framework will be presented to assist the analysis.

A conceptual frameworkThe Honourable Sir Ivor Richardson, an Appeal Court judge from New Zealand, haswritten recently about three, types of rights that need to be balanced in any humansociety - individual rights,' group rights, and community rights.4 By group rights he means

_/ rights associated with ethnic groups such as Aboriginal groups in Australia and NewZealand, or Native American groups in the United States. By community rights is meantconcern for the overall good of a society which must have some prerogatives in order toprotect itself from disorder and dissolution. Individual rights refer to an individual'sfreedom of belief, conscience, privacy, and related matters that allow the individual to befree of detpands that he or she conform strictly to community or group norms in everyarea. Sir Ivor calls for a balancing of these rights, claiming that usually in discussionsabout rights relatively little emphasis is put on community rights. '

Sir Ivor's typology may be illustrated by examining the American experiment in humanrights embodied in the Bill of Rights that was, made a part of the United States Constitutionprior to its acceptance. The Bill of Rigl)ts is a dramatic statement in favour of individualrights, at the expense bf traditional group rights, a development which led to the tapiddevelopment of new forms of social organisation and even a new type of humancommunity. American society became quite different from any other before it, and someof that difference derived from the way individual rights were stressed within the Am~rican

3 For an excellent discussion of the role of religious groups in promoting societal welfare through social experi­mentation see T Robbins and,D Bromley, 'Social Experimentation and the Significance of American New Relig­ions', in M Lynn and D Moberg (eels), 4 Research in the Social Scientific Study of Religion (Greenwich, Cf:JAI Press, 1992).

4 Sir Ivor Richardson, 'Justice for All', a paper presented at the 28th Australian Legal Convention" Hobart, Tas­mania, September 26-30, 1993. Also see the special issue of the Brigham Young Law Review devoted to theproceedings of a conference on 'Individualism and Communitarianism in Contemporary Legal Systems' publishedas (1993) Brigham Young Law Review. Especially the article by K Worthen, 'The Role of LoCal Governmentsin Striking the Proper Balance Between Individualism and Communitarianism: Lessons for and from America'(1993) Brigham Young Law Review 475 is an insightful discussion of the balancing of concerns.

Minority Religions and the Law 185

context.5Another timely illustration of Sir Ivor's typology concerns the Mabo decision onAboriginal land rights I in Australia. This major decision can be interpreted as a dramaticgrowth of one group's rights at the expense of other groups and, some claim, at the possibleexpense of overall societal well-being or community rights, a point of considerable debate.6

This shift may also impact upon the individual rights of members of various subgroupswithin Australian society.

, Sir Ivor's typology will be applied in this presentation which expands somewhat on hisideas. For instance, it seems reasonable to talk of group rights for religious groups,especially communal ones, instead of using the term to refer exclusively to ethnic or racialgroups. Following this logic, the discussion of individual rights herein will focus onreligious beliefs and, practices.

I. The American situationAmerica has perhaps the best known constitutional provisions concerqing religion, withits well-known First Amendment disallowing the establishment of any state sanctionedreligion, as well as prec,luding limitations on the free exercise of religion.? These provisionshave been openly expropriated by many other nations including of course, Australia, andsimilar wording appears in many transnational documents which seek to establishindividual human rights, including the European Convention on Human Rights andFundamental Freedoms which will be discussed in the section on the 'new Europe'.

Some may fail to appreciate the historical and political nature of the provisionsconcerning religion in the American Constitution. At the risk of oversimplifying, theinclusion of the famous provisions resulted from a unique (at that time) politicalcompromise of major proportions. At that time in colonial America, the Church of England(Anglicans) held sway in the South Atlantic colonies, as well as Maryland and New York,whereas the Congregationalists were dominant in the Northeastern colonies of NewEngland.8 Neither church had the power to have itself designated as the official state churchfor the new nation, but they did have enough influence to stop any other group fromassuming that pre-eminent position. Thus, a compromise was struck, and the great 'lively

I experiment' of religious freedom began over two hundred years ago in America.This political compromise can usefully be described in terms of Sir Ivor Richardson's

typology. Each of the, major religious groups worked to protect the long term interests ofits group through the inclusion of the anti-establishment and freedom of religion clauses.Little did those religious and I political leaders know what those clauses would come tomean two hundred years later. The focus on individual rights such as freedom of religionwas crucial for the breaking down of traditional 'mediating structures' in which individualshad been immersed since human history began. Suddenly, individuats had a basis on whichto cha,llenge traditional social control exerted by such human groups as families, tribes,religious and ethnic communities. People could strike out on th~ir own, responding to newopportunities in religious belief and practice, as well as land ownership or jobs. Thus therise of individual rights, including religious rights, contributed to the demise of traditional

5 See J Richardson, 'Legal Status of Minority Religions in the U.S.' (1995) 42 Social Compass 249, for a moredetailed application of Sir Ivor Richardson's ideas within the American.context, as well as Worthen, supra note 4,for a I general discussion ofrights balancing. '

6 See M A Stephenson and S Ratnapala, Mabo: A Judicial Revolution (St Lucia: University of Queen~landPress,1993) for a full discussion of the ramifications of the famous Mabo decision.

7 The exact language of the portion of the First Amendment dealing with religion is: 'Congress shall make no lawrespecting an establishment of religion, or prohibiting the free exercise thereof; ...' , '

8 See J, Wilson, 'Religion Under the State Constitutions, 1776-1800' (1990) 32(4} Journal of Church and Stqte753, and Durham, supra note 2, 326-329, as well as the excellent discussion in P Berger, The Sacred Canopy(New York: Doubleday, 1969), especially chapter 6.

186 James !?Ichordson '

societal constraints and thereby gave impetus to a new fonn of comtnunity which evolved'in IAmerica.

There is debate about the degree of intentionality of the American founding fathers indeveloping and implementing Enlightenment ideas concerning individual ~uman rightssuch as religious freedom. But there is little disagreement that the new emphasis on humanfreedoms freed the individual, and, ironically, in the process weakened old, ways ofinfluencing people. New vistas were opened in I terms of the voluntariness of humansocieties and, very importantly, new 'possibilities arose for types of economic arrangementsthat were impossible prior to the exertion of i~dividual rights.9 ,

1\ should also be recognised that the new American approach, developed under the I

banner of 'separation of Church and State', has had immense consequences on thedevelopment of religion in American society. We have seen the evolution of a 'religiousfree market' economy in America which, according to scholars, has contributed greatly tothe viabiQty of religion wi~n American society.IO Religious groups ,in order to survivehave had to compete with each otherfwhich h~ led to considerable enthusiasm, much'product differentiation' and 'standardisation', as well as considerable self-promotion byreligious groups using whatever communications technology is available.

As a result of this unique historical and political situation in America there seems tobe a religion for even" social niche, designed to apPeal to a narrow band of participants.Many groups, especially newer ones, typic~ly are quite evangelical and proselytize openlyin American society. Religious groups, in order to survive, have stressed the individ~

right of people to change religions. Thus, individual religious freedom has become a majortool for use in developing and maintaining the very existence of newer religious groups.It may seem odd to see members of a Hindu sect on the streets trying to convert peopleinstead of contemplating the great mysteries of life in a cave in the mountains. II However,such is the 'free market 'economy' of religio~ in America. If you are a religious leader inAmerica, you compete for followers or your group may simply disappear.

Religiou~ group~ in America must 'also develop ways to attain the needed sustenancefor group' survival since direct support from the government is not allowed under theestablishment clause of the Constitution. This material concern has resulted in manyapproaches to group fmancial sUpport.12 We see televangelists ,asking for money ontelevision and radio, religious groups operating businesses for needed funds but in opencompetition with other, secular businesses, members of newer religions hawking books inairports or accepting 'donations' for services such as meditation, c~unselling, 'chann~lling',

or classes in a new philosophy. Sonietimes the counselling is done with technological aidssuch as the E-meters used by Scientology, a practice which has resulted in many courtbattles over the legal definition 'Of such devices. Even in more traditional faiths we seeovert pleas for money and' regular solicitation of funds from members with emphasis onsuch practices as individual tithing. I "

Thus America has a rather unique approach to religion but it is not set in concrete.Indeed, there has been a great ebb and flow of religious freedom and religious persecution

9 C Bean;L An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1941) isperhaps the best known treatise on this point. 1See also, S Krislov, 'Alternatives to Separation of Church and Statein Countries Outside the United States' in J Wood (00), Religion and the Stat'e (Waco, TX: Baylor UniversityPress, 1985), 421, for a discussion of stnlctural and historical factors giving rise to religious tolerance.

10 See Berger, supra note 8, ch 6, and R Finke, 'Religious Deregulation: Origins and Consequences' (1990) 32(3)Journal of Church and State 609.

11 See T Pilarzyk, 'Conversion and Alternation Processes in the Youth ,Culture' (1978) 21 Pacific SociologicalReview 379. .

12 See J Richardson, 'Financing the New Religious' (1982) 21(3) Journal for the Scientific Study of Religion 255,and Richardson (1988) supra note 1.

187Minority Religions and the .Law;

in American history.13 We have seen limits placed on religious freedom such that, forinstance, freedom of religion cannot be a defence for violating the law by using (lOisonoussnakes in a worship service. Use of illegal drugs such as LSD are not allowed as the basisof a religious faith~ and polygamy cannot be practised by a religious group under colourof law, to list a few such restrictions. Groups doing those things are not defined in

,American society as having a right to maintain their religious practices legally and openly.We also contravene the impact of certain religious beliefs such as preclusions on bloodtransfusions, or use of 'spiritual healing', when such would seem to be harmful to childrenof members of religious minorities whose beliefs include such a ban.14

We have also seen our share of religious related violence in America, from the killings ­of early Mormon leaders and the persecution ofShakers, to mob violence against Catholics,both occurrences of the mid-1800s.15 More recently, of course, we have the tragedy of theBranch Davidian~ in Waco.16 Jews were common targets of violence in America until thetragedy of the Second World War made anti-Semitism unfashionable. Thus, it must be_admitted that the presence of the freedom of religion clause in the Constitution sometimesdid little to overcome the fears and prejudices of the populace and the authorities as theycontemplated groups with different beliefs and practices.

It is worth noting, however, that the vast ptajority of religious groups in Americansociety live together in harmony and do not cause problems for their neighbours or forgovernmental authorities. Most members of religious groups, including the 'new religions',apparently benefit from their ,expepence.17 Contrary ~o the impression left by mediafixations on occasional violent acts or odd behaviours associated with religious groups, thelively experiment of American freedom of religion seems to be working quite well for thelarge majority of American people.

We have seen our society grant unusual allowances for some religious practices that ; ~

might be limited or disallowed in some other societies.ls Thus we have seen rights ofreligious groups to proselytize and raise funds without governmental interference upheld

,in the courts. We 'have seen Jehovah's Witnesses allowed to not salute the flag or do otheracts usually defined as patriotic duties simply because of their strong belief that to partakeof such acts would be a violation of their religious beliefs. Amish families have beenallowed to disregard state compulsory school attendance la}Vs for their older children on l

13 For an excellent discussion of this changing meaning of freedom of religion in America, see R T Miller andR Flowers, Toward Benevolent Neutrality: Church, State, and the Supreme Coun (Waco, TX: Markham PressFund, 1987). This volume contains many of the major reli~on cases decided since the nation's inception, alongwith commentary. Also see Durham, supra note 2.

14 See J Richardson and J DeWitt, 'Christian Science Spiritual Healing, the Law, and Public Opinion' (1992) 34(3)Journal of Church and State 549 for discussion of legal protections offered for using spiritual healing withchildren.

15 ,See D Miller, 'Deprogramming in Historical Perspective' in D Bromley and J Richardson (OOs), The Brainwashing!Deprogramming Controversy (New Y.ork: ~win Mellen, 1983), as well as Durham, supra note 2.

16 Some recent efforts to explain religious violence include S Wright (00), Armageddon at Waco (University ofChicago Press, 1995), and J Lewis (00), From the A,shes: Making Sense of Waco (Lanham, Maryland: Rowanand Littlefield, 1994).

17 There is a large literature on the positive effects of participation in religious groups in the United States. SeeE Idler, 'Religious Involvement and the Health of the Elderly: Some Hypotheses and an Initial Test' (1987) 66Social Forces 226; D Larson, et al, 'Systematic Analysis of Research on Religious Variables in Four MajorPsychiatric Journals, 1978-1982' (1986) 143 American Journal of Psychiatry 329; D Larson, et ai, 'Associationsbetween Religious Commitment and Mental Health Reported in the American Journal ofPsychiatry and Archivesof General Psychiatry: 1978-1989' (1992) 149 American Journal of Psychiatry 557 for-summaries of suchresearch. For specific reviews on ,physical and 'mental health of participants in new religions also see J Richardson,'Psychological and Psychiatric Studies of New Religions' in L Brown (00), Advances in the PsychoLOgy ofReligion(New York: Pergamon Press, 1985) and J Richardson, 'Clinical and Personality Assess~nt of Participants in

, New Religions' (1995) 5 International Journal of Psychology of Religion 145, as well as B Kilbourne and JRichardson, 'Psychotherapy and New Religions in a Pluralistic Society' (1984) 39(3) American Psychologist 237.

18 Miller and Flowers, supra note 13, and Durham, supra note 2.

188 James Rk;hordson

the claim that such would interfere with the continuation of their way of life. ,Conscientiousobjectors have been allowed an exemption from nonnal militarY service even though theirclaim of exemption was

1not based on a religious belief per see We have seen religious

groups which practice religious healing given some protection under the law.. Religiousgroups have been allowed to staff businesses or perfonn services without following regularpay and benefits scales, especially if using volunteers or their own members as workers. 'Native American Churches have usually been allowed to use peyote in their ceremonies

~ even though the drug is so~etimes classified as illegal for others to use'. Each of theseexemptions and allowances which have been allowed under the freedom of religion clausehas the effect of encouraging the maintenance of the religious group involved in thepractice. In short, the law of religious freedom has been developed in ways clearlysupportive of the notion of group rights.

The list of exemptions based on the free exercise of religion could be longer but isparticularly interesting because all of those important precedents which have definedreligious 'freedom until recently in America have been over-ruled, seriously eroded, orjeopardized in recent times by the United States Supreme Court using cases involvingmembers of minority religious groups, including the newer sQ-called 'cults~, as well assome of the older minority religious groups.19 Some details of this remarkable record th~thas been developed of late concerning minority relig~ons will assist readers inunderstanding the dramatic shift that has occurred in the law of religious freedom inAmerica. These changes threaten, group, and individual rights and some claim that theoverall good of the society itself has been threatened as well.20

The Hare Krishna and Jews for Jesus organisations have had severe restrictions placedon their raising of money in public forums in America overturning precedent that is fiftyyears old. So-called 'time and place' restrictions have been approved which basically meanthat the organisations can only raise money in many public places if they ~o it froJJ1 abooth rather than by going among the crowds of people soliciting directly. Also, someareas where people gather in contemporary America such as shopping centres have beendeclared 9ff limits to all groups seeking to promote political or religious messages. ' '

(The Unification Church ('Moonies') won one major battle that might be called a'Pyrrhic' yictory'. In a close five to four vote they won a decision before the United StatesSupreme Court against legislation directly aimed at them in Minnesota which required any

, religious group receiving more than fifty ~r cent of its funding from non-members toregister with the state and to allow the state to review its financial records. The history ofthis legislation clearly revealed that it was designed to 'get the Moonies' but that it shouldnot impact on other groups such as the Catholic Church. The victory was a close one andmight not prevail now under a more recent ruling which I will discuss later. Also, fourjustices signed an opinion in the case raising the issue of whetQer the Unification Church

, was, in fact, a religious group 'which would have 'standing to file an action against thestate law.

Later the United States S,upreme Court refused to review a conviction of the UnificiationChurch leader, the Reverend Moon, for tax evasion, letting stand a jury conviction and a

19 c What follows is a summary from Richardson, supra note 5. Also see D Bromley and T Robbins, 'The Role ofGovernment in Regulating New and Nonconventional Religions' in J Wood and D Davis (OOs), The Role ofGovernment in Monitoring and Regulating Religion in Public Life (Waco, TX: Dawson Institute of Church-StateStudies, 1992); Durham, supra note 2; R Brisbin, 'The Rehnquist Court and the, Free Exercise of Religion' (1992)34(1) Joumal ofChurch and State 57; J Choper, 'Separation of Church and State: New Directions by the "New"Supreme Court' (1992) 34(2) Journal of Church and State 363;, V Megan, 'Employment Division, Depanment ofHuman Resources of Oregon v Smith: Does the Constitutionally Compelled Free Exercise \Exemption Have aPrayer?' (1991) 2~(4) Pacific Law Review 1415.

20 See Robbins and Bromley (1992) supra note 3, and Durham, supra,note 2.

Mindrity Religions ,and the Lawif \ d'll'\

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later two to one Circuit Court of Appeal ruling. Representatives of religious groups with125 million members filed briefs asking that the case be reviewed, but to no avail. Thus,the Reverend Moon spent time in a federal prison for the handling of funds in ways similarto how a number of religious groups arrange their finances, with' property, stocks andbonds being held in the name of the leader. Although the government promised duringthe trial not to apply the same logic against traditional groups (a possible violation of the'equal treatment' clause of the Fourteenth Amendment), the precedent has beenestablished.21

The Alamo Foundation lost an action brought by the Federal government to forceapplication of the Fair Labor Standards Act to workers in group cottage industries used

I to support the communal organisation. No longer could group members donate their labourto the group in exchange for basic sustenance furnished by' the organisation even thoughthey wanted to do so. This decision has potentially far-reaching impacts on many religiousgroups that support themselves in part or .whole using donated labour from members.'Immediately after the Alamo decision another minority religion, the Salvation Army, whichhas over a hundred centres around the United States to serve indigents, was told by thefederal government that it must begin to pay minimum wages to its thousan~s of volunteerlabourers, a move that Salvation Army officials say would put it out of business or severelycurtail the work it does with the poor. Such a hew and cry was raised about this LaborDepartment effort that the issue was dropped, at least in the short term, with a pledge byElizabeth Dole, Secretary of Labor under President Bush, that an exemption from the lawwould be sought for the Salvation Army which had enough popular support to avoidapplication of the Alamo precedent.

A communal Jesus Movement organisation, which I and some doctoral students studied,for years,22 encountered severe problems with the Internal Revenue Service because itdeveloped a number of small businesses to help support its Icommunes around the country.The Internal Revenue Service brought an action against the group to collect several

I hundred thousand dollars in claimed back taxes for 'unrelated business income', a termreferring to income not directly related to the 'exempt purpose' of the group. The group I

claimed that it needed funds to maintain its operation which had as its purpose therehabilitation and conversion of young people most of whom were former users of illegaldrugs. They also ,claimed that working in the small businesses was a form of-work therapyfor the people involved. After years of 'discussion, negotiations and litigation in the TaxCourt the group lost. The lawyers' fees and judgment resulted in the loss of their majorproperty which was the coup de grace for an already struggling group. This case illustratesthe apparent discrimination being shown against newer communal religious groups sincetraditional communal religious organisatIons such as Catholic orde~s or convents aregranted a blanket exemption under United States tax law.23 The United States SupremeCourt also ruled recently that an Amish person who had hired Amish workers to work onhis farm had to pay i~xes into the Social Security System (United States v, Lee24). The

I case was all ~e more s~king because it was the famous Amish case, Wiscoflsin v Yoder,25

21 The famous 'constitutional law professor from Harvard Law School, Lawrence Tribe, carned the UnificationChurch's brief to the United States Supreme Court but to no avail. See H Richardson, Constitutional Issues inthe Case of Reverend Moon (New York: Edwin Mellen Press, 1984) and J Richardson, 'Public Opinion and theTax Evasion Trial of Reverend Moon' (1992) 10 Behavioral Sciences and the lAw 53.

22 Richardson, Stewart and Simmonds~ supra note 1.23 See M Emory and L Zelenak, 'The Tax Exempt Status of Communitarian Religious Organizations', and J Rich­

ardson, 'The "Defonnation" of New Religions: Impacts of Societal and Organization~Factors', both in Robbins,Shepherd and McBride (eds), supra note 2. Zelenak was the attorney for the group which battled the IRS, and

,R,chardson's chapter describes this episode.24 455 US 252 (1982).25 406 US 205 (1972).

190 James ,RIchardson

which established over 20 years ago that the state could not demonstrate a strong enoughinterest to warrant being able to force Amish high school students to attend school asrequired by law. Plainly, the situation concerning the Amish has changed in America unlessone is willing to argue that obtaining minuscule social security paym~nts from a.few Amishfarmers is more important than the education of young people.

Christian Science, a long tenn respected but small faith in America, has alsoencountered severe legal problems recently. A numQer of legal actions taken'in severalstates have held parents criminally responsible for the death of a child who was beingtreated for an illness using traditional spiritual healing methods of the Christian Scientists.These charges have been brought in spite of the fact thal' specific exemptions exist in thelaws of many states concerning the use of spiritual healing methods. Many of theseconvictions have been overturned on appeal on the due process ground that the existenceof the exemption did not give fair warning to the parents that they were violating the law.However, there is now a campaign to remove the exemptions from the law, th!!S makingfuture convictions under child endangennent and manslaughter laws more likely to beupheld.~

Public sentiment favours prosecuting parents who seem to allow their children to diewhen they might have been saved through applications of modern medicine. However, theissue is one of selective prosecution that suggests a bias against ~nority religions."Regrettably, many children do not receive proper m¢ical care in America. Indeed, nearlyforty million people in America have no health insurance' at all and the type of medicalcare one receives depends mainly on one's ,social class and occupational status. The fewChristian Science parents whose children die when under spiritual healing are apparently,being prosecuted because they could afford traditional medical care but did not seek it.For the millions of children with no medical care available there seems little recourse.

A series of cases involving Native American religious concerns demonstrate thatpresently the legal system offers little solace to this faith that has existed for centuries in ­America.27 One recent Supreme Court decIsion allowed the government to build a roadthrough a sacred burial site of a Western tribe which had defined the site as sacred forhundreds of years. Over strong protests by the tribe and others the court ruled that theforest service road to facilitate 'ogging operations could be built, even though it wouldseverely' hinder or even preclude traditional religious practices of this group of NativeAunericans. "

The most famous of recent Native American cases is Employment Division v Smithinvolving two Native American Church members who were drug counsellors in Oregon.28

They were fired from their positions for using peyote in Native American churchceremonies and then were refused unemployme~t benefits from tqe State of Oregon. Theysued and won in the state court and then on appeal. However, the State of Oregon appealedto the' United States ~upreme Court which issued a stunning ruling in 1990 virtuallyobliterating any special treatment for religious practices in America.29

The court rejected the traditional 'compelling interest' test from Wisconsin v Yoderwhich allowed governmental infringement of religious practices only if there was acompelling governmental interest in issue. Instead, the court adopted a 'f~cially neutral'

26 See Richardson and DeWitt, supra note 14.,27 See Durham, supra note 2, 340-342~ and Worthen, supra note 4, 491-494 for excellent discussions of reCent

Native American Church cases.28 494 US 872 (1990). \ ,29 See R Boston, 'The Day "Sherbert" Melted' (1990) 43 Church and State 4; Me~ ~upra note 19; J Wood,

~Abridging the Free Exercise Clause' (1990) 32(4) Journal of Church and State 741; J Wood, 'The ReligiousFreedom Restoration Acf (1991) 33(4) Journal' of Church and State 673; Bromley and Robbins, supra note 19;Choper, supra note 19; Brisbin, supra note 19; 0 Laycock, 'Free Exercise and the Religious Freedom RestorationAct' (1994) 62 Fordham lAw Review 883.

Minority Religions and the Law 791

test which means that if a law is neutral on its faCe, that is, it does not specifically single I

out a religious group or practice, then the law can be applied to a religious group's practicesthat appear to contravene the law. Thus the drug laws of Oregon, even though they werenot enforced against peyote users, allowed denial of unemployment benefits to theplaintiffs.

The State of Oregon has since decriminalized the use of peyote in Native American,ceremonies but the damage had been done concerning freedom of religion in America.Now, for example, if a governmental entity wants to outlaw alcohol use, this could beapplied against the use of sacramental wine in ordinary churches. Douglas Laycock, anpted constitutional scholar, claims that virtually any religious act could be made illegalunder the new Smith precedent.30

One of the most disturbing aspects of the Smith decision was the statement in themajority opinion that religious freedom was only viable if 'combined with some otherprotected freedom such as freedom of expression or association~ This new concept of a'hybrid' right has earned considerable criticism from scholars but it is now the law of theland. Thus, we have seen a dramatic switch to the extent that just a decade or so agoSupreme Court opinions were being written that assumed protection of religious freedom i '"

was 'first among equals' because it was listed in the First Amendment of the Bill ofRights. Now we have Supreme Court judges stating that the right basically does not evenexist unless coupled with another prot~cted freedom.31

Other governmental actions in AmericaThe recent case law history recounted above is disturbing for those concerned aboutfreedom, of religion in America. But, in one sense recent case law is but one part of theproblem, although case law developments give impetus to and grant important legitimation,to other types of actions that limit religibus freedom in America.32 Governmentalbureaucracies at the state and federal level are exerting considerable pressure on somenewer religious groups. '

(a) Federal activity

Already discussed are cases involving the federal Internal Revenue Service applying taxlaws in ways that are arguably discriminatory against minority communal religions. Thefederal Immigration and Naturalization Service also has fought many battles with religiousgroups that have attempted to bring in members and; leaders frpm other countries. In someinstances they have simply refused to process applications, or taken an inordinate amountof time in doing so. In others they have taken direct action to stop religious leaders orgroup members from entering the country~ or have tried to force them to leave if they are'here. '

The federal Dep~ment of Justice has a policy not to prosecute so-called'deprogrammers' who kidnap members' of minority religions for purposes ofdeprogramming' under federal kidnapping laws, defining such situC\tions instead as 'familymatters'. Only a few of thousands 'of deprogrammings have involved federal kidnappingcharges being brought.33 The law enforcement arm of the Department of Justice, the FBI,was involved in the badly botched tragic situation in Waco in 1993. The FBI took oyerfrom another law enforcement group under the Department of Treasury, the Bureau of

30 D Laycock, 'The Remnants of Free Exercise' [1990] Supreme Court Review 1~

31 As Durham, supra note 2, 335-338 points out, a number of key religious freedom cases also involve issues offreedom of speech. However, the Smith decision seems to suggest that freedom of religion does not exist apartfrom another protected right, which is considerably beyond the earlier views espoused by the Supreme Court.

32 See Bromley and Robbins, supra note 19, for a more detailed discussion of these related issues.33 See Richardson, supra note, 19, and Bromley and Robins, supra note 19, for discussion of this policy.

192 James Richardson

Alcohol, Tobacco and Firearms that initiated the raid on the Branch Davidians in February,1993. However, the FBI's tactics have also been roundly criticized by a wide range ofobservers.34

(b) State Government actions

Individual state governments have also made efforts to pass state laws or take' other actionlimiting the activities of newer religious groups. The campaign by the State of Oregonagainst the Rajneesh group illus~ates what can happen when a state wants to bring to bearall of its resourctfs to control or force the removal of a new religion which has chosen tosettle within its boundaries.35 The Rajneesh group under the leadership of the BhagwanShree Rajneesh attempted to withdraw from society and build a utopian commune in thevast reaches of Eastern Oregon. This did not occur, in part because of the very lawsdesigned to offer unique protections to religious groups in America. The State of Oregonused an anti-establishment legal theory to disallow its co-operation with and support forthe town of Rajneeshpuram which had been established by the group as the centre of itsactivities in Eastern Oregon.

The State argued successfully in state and federal court that the town of Rajneeshp,uramwas established by, a religious group which owned all the property within its boundariesand which, therefore, could decide who could and could not be a resident jn the to~n.

Thus the town was legally indistinguishitble from the religious group. To furnish the townwith the normal state services land with rebates of taxes collected by the state would violate,it was argued, the federal and state constitutional anti-establishment provisions which weredefined as requiring the total separation of the, state from religious organisations.

This -theory was first proposed as an opinion of the Oregon StaJ:e Attorney-Generalwhich gave it the force of law among all state \agencies, from the department of educationto the highway department and state law enforcement organisations. Then, when' it waschallenged, the state successfully obtained'a declaratory judgment from state and federalcourts supporting this novel application of the' theory. The Rajneesh community fought thetheory on freedom of religion grounds claiming that the theory would force them to changetheir theologically-based communal way of living, but to no avail. The group eventuallydissolved in the face ,of criminal charges of various kinos, some of which may haveinvolved actions \done in response to efforts of the state to control or put out of operationthe Rajneesh community.

As, this episode developed, the level of co-operation between state and federalauthorities was impressive. The federal court ~ystem eventually sanctioned tlte legal theorybut other agencies, particularly the United States Immigration and Naturalization Service,also played major roles. Many 'sanyasins' were from outside the country as was theBhagwan himself. This gave the INS leverage to seek deportations and to refuse to allowmore foreign ,sanyasins to enter the country, effective tactics which placed the Rajneeshgroup on the defensive.

(c) (Brainwashing' based legal a'ctions

For several, years early in the 1970s the legal system in America allowed an interpretationof state conservatorship laws which were initially written to assist when older citizensbecame too senile or incapacitated to manage themselves and their affairs. Such laws weresometimes applied to young people who had joined religious gr{)ups even if they were of

34 See Wright, supra note 16, anp Lewis, supra note 16.35 See J Richardson, 'Religion on Trial: New Religions in Oregon' (a paper presented at the annual meeting of the

Pacific Sociological Association, Spokane, WA, 1990).

Minority Religions and the Low 193,

age.36 The usual logic behind this use of such laws was that young people were sufferingfrom being 'brainwashed' and under- 'mind control', and thus needed assistance to leavethe group and regain their personal autonomy. The alleged induced mental state of recruitsto certain religious groups was treated as functionally equivalent to dementia under theconservatorship law. The California Appeal Court, finally stopped this use of the law in a1977 ruling disallowing such use of the conservatorship law, and the ruling becameinfluential throughout America.37 Deprogramming still takes place but usually not underthe colour of state law, as had been the case in many instances prior to the ruling of the "California Appeal Court.

In other legal battles the legal system has allowed quite questionable evidence to beused in civil actions against minority religions. Expert testimony concerning so-called'brainwashing' of participants was allowed for years, although recent Federal ~ourt

decisions have brought that practice into disrepute.38 Such cases have resulted in a numberof very large verdicts against minority religions, the very existence of which has beenthreatened by these judgments.39 Also, and most telling, has been the allowing ofconsiderable evidence strictly about beliefs and practices in the new religions under theguise of support for creative applications of a 'choice 'of evils' or 'necessity' defences intrials of deprogrammers who were being sued civilly or charged under state kidnappinglaws. Some courts have allowed testimony about religious practices without any legaljustification except that of some relevancy in knowing what a religious group wa;s \like.These courts have ignored the longstanding prohibition against examination of religiousbeliefs by the courts, or have avoided it by saying they were looking at conduct, notbelief.4o

The Religious Freedom Restoration ActThere has been a significant reaction to this pattern of new case law, policy, and practiceconcerning religion that has developed in America. Especially the Smith decisiongalvanized many religionists and others to seek a way to overturn the discarding of thecompelling interest test that was done in the case.41 The result of this effort is still unknownbut the Religious Freedom Restoration Act was introduced in Congress with specific,,language to reinstitute that test. Thus, any state law or executive action that impinged upona religious practice would be examined in the future to see if it: 'I(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive IJleans of furthering that compelling governmental interest.42

The Bill passed the House and Senate with overwhelming majorities, and President

36 See T Bohn and J, Gutman, 'The Civil Liberties of Religious Minorities' in M Galanter (ed), Cults and NewReligions (Washington, DC: American Psychiatric Association, 1989), 257; D Bromley, 'Conservatorships andDeprogramming: Legal and Political Prospects' in Bromley and Richardson, supra note 2, 267 ~

37, Katz v Superior Court 73 Cal- App 3d 952; 141 Cal Rptr 234 (1977).. 38 See D Anthony, 'Religious Movements and Brainwashing Litigation' in T Robbins and D Anthony (eds), In Gods

We Trust (2nd ed, New Brunswick, NJ: Transaction Books, 1990) and D Anthony and T Robbins, 'Law, SocialSciences and the "Brainwashing" Exception to the First Amendment' (1992) 10(1) Behavioral Sciences and theUlW 5.

39 See Laycock, supra note 29, for details about how one such 'suit came close to taking all assets of the HareKrishna organisation in the United States.

40 See Bromley and Robbins, supra note 19; Durham, supra note 2; Richardson, supra note 5; J Richardson; 'Cult!Brainwashing Cases and Freedom of Religion' (1991) 33 Journal of Church and State 55.

41 See Laycock, supra note 29; Wood, (1991) supra note 29; Durham, supra note 2.42. House resolution 1308, I03rd Congress, Ist Session, pp 3-4.

I ~ I

194 James Rlphordson

Clinton signed the Bill into law on November 16, 1993.43 However, it should be notedthat virtually all the cases discussed above that disallowed or limited newer religiousgroups from engaging in activities or in other ways dealt with them dismissively werepre-Smith decisions. In short, most of those cases Were dealt with during the time whenthe compelling interest test was supposedly the 'law of the land'. Thus, there may not be ­as much change as hoped for in some quarters by the passage of the Religious FreedomRestoration Act.44 However, the symbolic meaning of the strong affmnation of religious,freedom contained in the Religious Freedom Restoration Act could also lead to moreattention being paid to such concerns within the American pluralistic context.

II. Europe

The European situation concerning minority religions has recently been described in twopapers which will be used as the basis of this section.45 The frrst focused on how new

\ religions were being received -by the public and institutional struc~s, including legalones, within four European countries - the United Kingdom, Germany, France, and theNetherlands. The other examined how the European 'Court of Justice and the EuropeanCourt of Human Rights, as well as the European Parliament and the ParliamentaryAssembly, have dealt with minority religions. Space does not allow a recounting of thesepapers in detail, so I will offer only a summary of some' of the findings, focusing mainlyon the larger pan-European commumty institutions. .

ReligiouS' freed~m in selected European countries

New religions have been viewed with skepticism by the authorities in the United Kingdom,Germany, and France. In the Netherlands, after a thorough study of the phenomenon, noofficial governmental actions were taken because the groups were not thought) of as athreat to society or to citizens of the Netherlands. In the United Kingdo~ Germany, andFrance, 'the response has varied' but overall could be characterized as one of suspicion ,fuelling efforts to exert social control. Germany has taken the most drastic measuresconcerning ,the groups, with a federal agency taking the lead in<educating the public aboutthe threat of so-called 'yoQth religions'. Co-operation with anti.-eult, groups has been thenorm in Germany, leading to considerable official pressure on various of the newer groups.

In France, federal authorities and the Catholic Church have worked together with aparent-led group to put pressm:e on newer \religious groups based on the belief that suchgroups are a threat to society. In 1992 there was a large raid on The Family communesin southern Fran~e' after accusations of child sex abuse were made by detractors. The raidswere similar to those taken against communes of The Family in Australia 'a few years

43 The Bill took considetable time because of initial opposition by Cath;>lic groups concerned that the Bill wouldforce governmental support for ,abortion, a fe8r that was taken care of with some language changes. There wasanother attack on the Bill just prior to passage by a few state attorneys-general who feared the Bill would forcetoo much recognition of the rights of prisoners, but this effort also failed.

44 See D Davis, 'Rebuilding the Wall: Thoughts on Religion and the Supreme Court Under the Clinton Adminis­tration' (1993) 35(1) Journal of Church and State 7 for another cautious view of the Religious Freedom Resto­ration Act.

45 See J Richardson and B van Oriel, 'New Religions in Europe: A Comparison of Developments and Reactions inEngland, France, Gennany, and the Netherlands' in A Shupe and D Bromley (eels), Anti-Cult Movements inCross-Cultural Perspective (New York: Garland Publishing, 1994); J Richardson, 'Minority Religions, ReligiousFreedom, and the New Pan-European Political and Judicial Institutions' (1995) 37 Journal ofChurch and State 39.

Minority Religions and the Law 195 '

ago.46 I~ the United Kingdom, after a twelve year ~ against immigration byscientologists, the government has chosen to do little in recent times in terms of overtcontrol of new religions even though under heavy pressure to take away the charitable

- status of the Unification Church. Some have said the government is still embarrassed aboutthe Scientology ban and that it also learned the futility of trying to enforce such a policy.

Religious freedom and pan-European institutionsActions taken by the pan-European institutions have 'been sporadic but quite important~ at

\ least symbolically. In 1984 the European Parliament passed a lengthy resolution opposingnew religious groups and urging that a number of specific efforts be made to exerci,secontrols on the new groups. Having been motivated mainly by concern about theUnification Church in Britain, R Cottrell MEP fro~ Britain developed the measure andsucceeded in getting it approved even over strong protests from the British Council ofChurches, its French counterpart, and others. '

No direct action has flowed from the Cottrell resolution but it was passed on to allparticipating governments, and to the Council Qf Europe institutions, including the'Parliamentary Assembly. The Assembly took up the matter of so-called ·sects and cults'in 1987, and eventually produced a report authored by Sit John Hunt MPA from the UnitedKingdom. The Report called for the registration of_groups, dissemination of informationabout the groups, passage of legislation dealing with child custody to make it harder formembers to travel, among other items. A version of 'the Hunt report was passed in 1992.

\ The two major pan-European courts - the /Court of Justicel for tIle EuropeanCommunity and the European Court of Human Rights which is associated with the Councilof Europe and its Parliamentary Assembly - have also had occasion to deal with newreligions. The Court of Justice has dealt very little with cases" relevant to freedom ofreligion, however, as its major task is to pandle the economic union of the twelve'participating countries. It has allowed to stand a ban on a scientologist travelling to Englandduring the United Kingdom's ban on such immigration, even though EC documents clearlygrant the right to travel to all citizens. It has also made one decision undercutting Ireland'sconstitutional ban on abortions, a case with significant ramifications.47

The European Court of Human Rights, whose judges are selected by the ParliamentaryAssembly, has had many occasions to deal with issues of freedom of religion. This Courtis the major enforcement arm for the European Convention on Human Rights ·andFundamental Freedoms to which twenty-nine countries are now signatories. Individualclaims can be lodged with the Human Rights ComInission which certifies them for theCourt of Human Rights. Between two and three thousand claims of all kinds are submitted 'leach year to the Commission and about ten per cent of those are submitted to the Courtfor adjudication. There is currently about a five year backlog, of c(l$es. .

Many of the submitted claims are based in part on Article 9 of the Convention whichprotects 'freedom of thought, conscience, and religion', and which explicitly grants theright for a person to change his or her religion or belief. However, the Court of HumanRights has a dismal record of enforcing Artic~e 9 claims, appearing to do all it ~an toavoid them. One tactic is to rule on another claim such as freedom of association or

46 Raids against Family communes have now occurred in five countries, all with similar results. The Children haveall been returned to their families and charges have been unproven. However, the raids have been very disruptivewith considerable consequences for all concerned. See J Lewis and G Melton (eds), Sex, Slander, a,nd Salvation:Investigating the Family/Children of God (Stanford CA: Center for Academic Publication, 1994) for papers onthese and related events.

47 See J Choppel and A'O'Neill, 'The European Court of Justice: Taking Rights Seriously?' (1992) 12 Legal Studies227 for a somewhat critical view of the Court's role in enforcing human rights which in<;ludes ~ discussion of _the abortion case from Ireland.

\,1

796 James Richardson

freedom of expression (1l\ost cases involve multiple claims). Another is simply to ignore, such claims and defer to the Member States, typically using one of the 'loopholes' listed

in paragraph two of Article 9. This paragraph states:

Freedom to manifest one's religion or belief shall be subject only to such limitations as ~prescribed by law and are necessary in a democratic society in the interests of public safety, forthe ,protection of public order, health or morals, or for the protection of the rights and freedomsof others.

These many exceptions have been used to the extent thal only one decision has everbeen made by the Court of 'Human Rights finding a violation of Article 9. That occurredin 1993 and involved a Jehovah's Witness in Greece who was fined and sentenced toprison for proselytizing ~ neighbour. Appcirentl~, putting a person in jail for, trying toconvert someone was an action that required a finding that Article 9 had been violated.The vote of the Court was six to three in favour of finding a violation, however, with thedissenters taking strong exception to the idea that a nation could be directed not to bringcriminal charges against those who vigorously proselytize for their faith.

The Court of Human Rights has dealt a number of times with claims by groups suchas Scientology but has found ways to avoid ruling,in their favour. In an interesting casefrom Sw~n, scientologists were appealing a governmental ruling (that disallowed theiradvertising which included mention of their famous 'E-meter' used in 'clearing' -people.

'- They used freedom of religion and freedom of expression grounds for their appeal. TheCommission used freedom of expression logic to handle the case, finding that the ban onadvertising was a violation of freedom of expression but then stating that advertising whichincluded the E-meter was 'commercial speech' which was afforded less protection than'political speech'. I

Observers, of the pan-European situation may be puzzled about the lack of enforcementof Article 9. The situation does pot avail itself of easy answer. Plainly, the pan-European '

J institutions are demonstrating great respect for Member States' rights in the area of religion.Perhaps this could be thought of as respecti"g the community rights of the Member I Statesso, they will allow the machinery of the greater pan-European ,community to continue todevelop. Some commentators have simply said that religion is usually considered a pnvatematter, not subject to handling in such a forum. For individuals who think their religiousfreedom has been violated, and for religious groups whose existence might be threatened \by the apparent lack of interest in Article 9, either logic may seem a bit strained., It is ~lso worth pointing out that as Eastern European nations and former Soviet Unioncountries are developing their fledgling democracies, religious freedom is being put to thetest in the new context. Old arrangements are falling away but are being replaced in someinstances with tygimes that involve close ties between a state sanctioned religion and ~e

state. Some of these new regimes are demonstrating' that they are less than interested in aconcept of freedom of religion that allows new groups access to power and state funding.48

III. AustralieJ49

Australian ,history is filled with many anomalies and contradictions concerning the rightsof religious minorities. Australia is required to have a Head·of State who is a member of

( ,

48 See J Wood, 'Rising Expectations for Religious Rights in Eastern Europe' (1991) 33 Journal of Church andState 1.

49 The section depends heavily on two major sources: New South Wales Anti-Discrimination Board, Discriminationand ReligioU3 Conviction (Sydney: New South Wales Anti-Discrimination Board, 1984), a large treatise Writtenmainly by Juliet Sheen, Project Officer of the Board; Reid Mortensen, 'The Secular Commonwealth: ConstitutionalGovernment, Law and Religion', PhD thesis submitted to the Law Faculty, University of Queensland (1996).Also, I was able to have numerous infonnatlve conversations with Ms Sheen and Mr Mortensen for which I amgrateful. .

Minority Religions and the Law 197

, the Anglican faith but most Australians appear to care so little about religion that theHonourable Justice Kirby, the President of the New South Wales Court of Appeal, hassaid that bne of the most important protectors of religious freedom in' Australia isindifference towards religion.50

As late as 1950 the High Court was called upon to ,decide whether an elected memberof the House of Representatives could be precluded from serving because he was a Catholic 'and therefore, by definition, must be serving a foreign,pOwer. But, at present, five of theseven justices sitting on the High Court were raised as Catholics, suggesting that Australiahas either succumbed to the 'papal menace' or that Australians are no longer concernedabout the issue.51

Australia's formal legal approach to the rights of religious minorities suggests that thesociety is remarkably homogenous with few differences of opinion about matters religious.Yet, there are over 200,000 Moslems and 70,000 lews in Australia presently, not tomention thousands of participants in other faiths which are not part of the mainstream,including growing communities of Hindus and Buddhists. One, source claims that there arecurrently over eighty different religions being practised in Australia,52 and Justice Murphyin the famous Scientology tax case stated that there are more than; 500 distinct religiousgroups in Australia. Gaze and Jones point out that in 1984 there were one hundred and I

eighty seven different religious groups registered under the Marriage Act, and that therewere more than eighteen hundred different answers given in response to the question onthe Australian census about religious affiliation.53

The tide of non-European immigrants has dramatically increased since 1966, the yearof a major change in Australian immigration policy. The nation began to allow peoplefrom non-Christian societies to move to Australia raising the pOssibility of needing toadjust official perceptions and legal protections to accommodate these new peoples. Theofficial recognition of Australia as a multicultural society in the 1970s also suggested somemodifications might be needed to accommodate $e increasing diversity.

Australia may be able to continue with the cultural tradition of religious toleranceinherited from England during diamatic changes in the make-up of its population, butquestions are being raised about religious freedom on several fronts. Before proceedingwith comments about the contemporary situ~tion and the possible need for more protectionfor religious minorities in Australia, however, a brief examination of key historicaldocuments is needed.

Section 116 of the Australian Constitution

,There is a clause in the Preamble of the Australian Constitution invoking 'the blessing ofAlmighty God', a result of a concerted campaign by the Protestant churches and thecolonial governments (although for political reasons the successful motion to include thephrase was made by a Catholic). Austr~ians have no bill of rights but s 116 exists in the

\ Commonwealth Constitution which seems to guarantee similar rights as those containedin the United States Constitution after which is was modelled. The section states:

The Commonwealth shall not make any law for establishing any religion, or for imposing anyreligious observance, or for prohibiting the free exercise of any religion, and no religious testshall be required as a qualification for any office or public trust under the Commonwealth.54

50 Justice. M Kirby, 'Religious Liberty in Multi-Cultural Australia' in R Coombe (00), Proceedings of Pacific RimCongress of the International Religious Liberty Association (Suva, Fiji, June 7-10, 1992).

51 F Devine, 'Judging the Judges', The Australian Weekend Review, October 9-10, 1993, 4.52 B Gaze and M Jones, Law, Liberty, and Australian Democracy (Sydney: The Law Book Co, 1990).53 Ibid. See also, A Black (00), Religion in Australia (Sydney: Allen and Unwin, 1991). ·54 Note that s 116 even contains one clause prohibiting the Commonwealth from making any law for imposing a

religious observance, a clause missing from the United States Constitution provisions on religion.

198

, -'

James Richardson

The United States constitutional provisions concerning religion are granted someprimacy by being included in the First Amendment of the famous Bill of Rights but ,oddly,the Australian s 116 is located toward the end of the Constitution in a section entitled'The States'. Even more interestingly, s 116 does not apply to the States but instead governsonly the Commonwealth and the territories, a rather severe limitation on the effect of thecl~use. The United States provisions concerning religion are applicable to the Statesthrough action of the United States Supreme Court in its case law.55

Section 116 was add~ after a major campaign initiated by a minority faith, the SeventhDay Adventists, who, with some reason, thought that the Preamble statement might leadto Commonwealth Sunday closing laws and other fOnDS of persecution. The Adventistshad been prosecuted for violating Sunday closing laws in New South Wales in years priorto the constitutional considerations. The campaign to add s 116 was successful, however,only when those from the dominant religious and political groups of the, time decided toallow the inclusion of the clause to gain the votes of those concerned about the effect ofreferring to religion in the Preamble. '- There is much argument about what s 116 actually means, however, and whether it hasany real substance. In one clear demonstration of the weakness of s 116, apparently theprovisions were not even thought of as binding on judicial orders. In 1982 a case involvinga custody dispute resulted in a High Court statement that s 116 did not bind the Court,which raises the serious question of possible religious discrimination in such cases. TheAustralian High Court in the few decisions that have dealt directly with s 116 have Dotgfanted it much significance, choosing to interpret its provisions quite narrowly even as itapplies to the Commonwealth. The Court has,focused 0]1~ explicit purpose of legislationusing a limited analysis attending only to the explicit language of the provision.56 '

Thus the High Court has to date refused to read s 116 more liberally so as to attendto the fconsequenc~ of legislation or executive action for individual religious liberties. Aslong as legislation or executive action is not designed to' establish a specific state churchor 'to specifically prohibit a religious practice, then it is usually pennit~, even to theextent during the Second World War of disbanding and expropriating the property of the ­Jehovah's Witness church. The Witnesses doubled their membership during the time ofthe b~ according to the New' South Wales Anti-Discrimination Board (1984)~ which alsosuggests that banning this religious group may have been provoked by Catholic pressureon the- Government.57 This position of deference to the executive and legislative branchessuggests I that historically the High Court has preferred to wash its hands ,of religiousfreed0m issues. McLeish has stated that the upshot of the Court~s grappling with s 116'has been to confmn .the impression of its strangeness' .58

,State constitutions and statutes,Only one Australian state has a constitution~ guarantee lor freedom of religion~(Tasmania),

and that can explicitly be overridden by parliamentary a~tion.59 Three others (Queensland,Victoria -and Western Australia) have some limited protection for f;reedom of religionthrough their Equal Opportunity legislation.60 As just indicated, the Federal Constitution

55 See Duttlam, supra note 2.56 Much ink has been spilled, for instance, over the meaning of the word 'for' which appears three times in s 116

(The Commonwealth shall make no law for ...), and this bas led to an insistence by High Court judges that. they must focus only on purpose, not consequences.

57 New South Wales Anti-Discrimination Board, supra note 49, 203.58 S McLeish, 'Making Sense of Religion and the Constitution: A Fresh Start for Section 116' (1992) 18 Monash

University Law Review 2CJ7.59 Kirby, supra note 50.60, Gaze and Jones, supra note 52.

Minority Religions and the Law 199'I

11

, . ~

affords little assistance to ~ose desiring protection for the practice of their religious faith.Thus, freedom of religion in Australia depends on the goodwill of those in power at ,anygiven time, a majoritarian approacll that may offer little 'solac~ to members of the growingminority faiths which are trying to practise' their faith within Australia. This approach hasengendered considerable critical comment by scholars, including Professor Walker's oft..quoted article entitled 'Dicey's Dubious Dogma of Parliamentary Sovereignty' .61 In hispaper Professor Walker states, concerning freedom of religion, that: .

The absence of any such protected right may well lead to an increased social tension in Australiaif the present trend for the decline of conventional religions and the rise of unconventional onescontinues.62

Religious freedom in'Australia: a problematic recent history

If members of minority faiths are to depend on the goodwill of those individuals andinstitutions in power in Australia, what are the prospects? A few recent examples mayoffer insight into the way the dominant societal institutions react to members of minorityfaiths. For instance, in the famous 'Hilton Bombing' case three members of Ananda Margawere apparently falsely convicted on the basis of /quite flimsy evidence and spent sevenyears in prison before the conviction was overturned. The Ananda Marga group is ofHindu derivation, and can safely be referred to as a rather radical group. However, theirworst crime at the time of the Hilton borpbing may have been a conspiracy to paint politicalslogans on public walls. Their status as members of this controversial minority religiousgroup played a major role in what happened in the case which saw the legal system, lawenforcement and media working together in ways that might give considerable pause forthought to many Australians.63

I •

For over two years prior to the Hilton bombing incident the Ananda Marga group,because of its protest activities, had been experiencing considerable continued interest bygovernmental agencies. Immigration controls were placed on members and a number weredeported or refu~ed entry into the country. Police raids and seizure of documents occurredwith some regularityM as part of the surveillance activities ~y authorities. The eventualcharges concerning the .boJ11bing were apparently vi~wed by some political and police,officials as the logical culmination of several years of investment in the investigation ofthe Ananda Marga organisation. '

Another case in which religious faith played a major role involved Seventh DayAdventists Lindy and Michael Chamberlain whose baby disappeared on a trip to AyersRock in Central Australia. Great hysteria gripped Australia during the lengthy effort todiscern the truth about what happened that fateful nigl;lt at Ayers Rock when theChamberlain baby disappeared, probably taken by a wild dingo.65 Lindy ChamberlaiQ wasconvicted of murder' and served three years in prison prior to being freed after aCommission of Inquiry examined the evidence against her and found it sorely wanting.Again, the legal system seemed to' break down under the pressure of public and mediaattention fed by hysteria and rumour about alleged strange religious beliefs and practicesof the Adventists. Very questionable 'expert' evidence and legal theories were allowed tocarry ,the day in court. Justice was not served and religious tolerance in Australia wasdamaged.

61 G de Q Walker, 'Dicey's Dubious Dogma of Parliamentary Sov~reignty' (1985) 59 Australian Law Journal 276.62 ld 283.63 See New South Wales Anti-Discrimination Board, supra note 49; Gaze and Jones, supra note 52.64 New South Wales Anti-Discrimination Board, ~upra note 49, 223.65 See Gaze and Jones, supra note 52; R Harding, 'Jury Perfonnance in Complex Cases' in M Findlay and P Duff

(OOs), The Jury Under Attack (Sydney: Butterworths, 1988); D Brown and D Neal, 'Show Trials: Media and theGang of Twelve' also in Findlay and Duff (OOs) (above).

200 James Richardson

j

More recently, the episodes of large' numbers of children of members of a minorityreligious" group, The Family (formerly known as the Children of God or COG), beingtaken into custody in synchronized raids against houses of the group in Melbourn~ and

, Sydney raise issues of religions freedom, among others. These raids were organised afterallegations of child abuse, including sexual abuse, were lodged by some former membersand others opposed to the group. The raids involved governmental agencies, massive mediacoverage and little apparent concern for parental rights or freedom of religio~ defined ineither group or individual terms. The Sydney case was resolved fairly quickly through amediated settlement but the one in Melbourne continued for three years before it too wassettled similarly to the Sydney case.66 •

The recent actions against The Family are nothing new.67 Seventeen Children of Godcommunal homes across Australia were raided on the night of November 29, 1976 byCommonwealth immigration officials searching \for violations of immigration laws. Noviolations were found, however, as all visas were in order. The Children of God have alsobeen the subject of intense attention in the New South Wales Legislative Assembly, witha motion to have an official investigation of the group failing by a vote of 48 to 49 inFebruary 1977. During the debate on this motion the AttorneylGeneral of New SouthWales at the time stated that the Children of God had been the focus of discussions among,the state and Commonwealth Attorneys-General. Later that year it was revealed that infact an inter-departmental committee had been set up in February after the failed vote togather information on the Children of God. The Committee was made up of representativesfrom the Premier's Department, the Department of Attorney-General and Justice, theDepartment of Family Services, and the Department of Youth and Community Affairs.However, the Committee, after gathering information for several 'months and finding noviolations of law, did not recommend any further action.

The Unification Church has also been the target of repeated calls for efforts to controlthem or drive them from the country.68 Some of this effort may have been provoked bythe' actions taken within the European Parliament and the Parliamentary Assembly thathave been described, much of which was directed at the Unification Church. Other actionswithin the Federal Parliament and the New South Wales Legislature have resulted from 'extremely negative coverage which had been given the Unification Church in majorAustralian newspapers. Also, strong local efforts have sometimes been made to deter theUnification Church, as well as other minority religions, from building places bf trainingor worship in areas available to more traditional groups.

A long history of discrimination against Scientology is documented ~n the New SouthWales Anti-Discrimination Board's 1984 study.69 There have been governmental studiesand laws banning Scientology in several Australian States. Various state psychologicalpractices Acts have banned Scientologists from registering, ,advertising, teaching, orreceiving payments for services, while granting exemptions to ministers of other faiths \who practise counselling. In the past, the Australian Companies Code has included theterms scientology and dianetics in its Prohibited Names Directive. '

Scientology lost a major case against the Australian Security Intelligence Organisation(ASIO} in 1983, the same year as their victory on the issue of being defined a religionfor tax purposes in the Church of the New Faith v Commissioner for Payroll Tax (Vic).7o

66 , See J Richardson, 'Social Control of New Religions Through Use of Child Sex Abuse Accusations', a paperprese_nted at Faculty Forum, University of Sydney' Law School, February 1994. Also see M Oliver, 'Today'sJackboots: The Inquisition revisited' in Lewis and Melton supra nQte 46, 137. ,

67 The details that follow are from New, South Wales Anti-Discrimination Board, supra note 49, 214-219.,68 Id 219-222.69 Id 207-214.70 (1983) 154 CLR 120.

~inorlty Religions and the Law 201

Gaze and Jones treat this less well known scientology case as quite important in the areaof secrecy and national security, as well as a limitation of religious freedom.7l They reportthat the High Court offered little help when scientologists complained about ASIO keeping {them under surveillance a,nd reporting their association with Scientology to Commonwealthagencies to whom individual scientologists were applying for jobs. So, althoughScientology was accepted as a religion in the famous tax case, anoth~r case at virtuallythe same time sanctioned reporting, scientology members to agencies considering hiringthem which in effect denied them jobs. Gaze and Jones note that a majority of the Justices

I stated that ASIO was subject to judicial review but that this case did not warrant such areview on its facts.

'Deprogrammings' of adult members of some of the groups already mentioned havealso occurred in Australia in the past, a number of which are described in the New SouthWales Anti-Discrimination Board study.72 People who were of age have been taken byforce from their religious group and made to undergo rigorous re-socialization to force achange of religious beliefs. Law enforcement agencies, in Australia typically have refusedto prosecute those i~volved in the deprogrammings, apparently following the Americanpattern of defining the situations as 'family matters', no matter what the age of the'deprogramee' .

A number of other examples concerning treatment of religious minorities in Australiacould be given but these will suffice to make the point that some, minority religions haveencountered apparent discriminatory treatment in recent times in Australia.73

Freedom of religion, voters and ~he political contextIn 1988, Australia's Bicentennial Year, the voters of Australia turned downoverwhelmingly (sixty-nine per cent against) some amendments to the CommonwealthCon,stitution, including one which would have extended a requirement of fre~om ofreligion to the States. This addition to the meaning of s 116 was recommended by theConstitutional Commission and supported by the Government in part because of a 1984South Australian Supreme Court decision holding that 'there was ,no common lawprotection for religious freedom in the States of Australia', a decision roundly criticisedby some.74 Religious freedom appeared to be at the mercy of parli~entary action andwas not held to be inviolate. Australian voters had turned down extending s 116 to theStates before (in 1944), so perhaps this result should not have been surprising.75 Votersturned down the proposed amendments in 1988 for many reasons, including lack ofbipartisan support and opposition from some mainline churches specifically on freedomof religion.76 Whatever the reasons, defeat of the referendum suggests that concern forreligious freedom was low among the majority of the pOpulace. .

It is also noteworthy that some key documents such as the Anti-Discrimination -Actpassed by the New South Wales Parliament in 1977 do not include any protection, againstreligious discrimination. Indeed, the Act explicitly states that the provisions of the Act donot ~pply to religious bodies thereby allowing them to discriminate in decisions aboutstaffing religious institutions. The 1984 report by th~ Anti-Discrimin3;tion Board of NewSouth Wales was ~ massive study that revealed a litany of, instances of religious

71 Gaze and Jones, supra note 52.72 New South Wales Anti-Discrimination Board, supra note 49,143-'252.73 The substantial treatment of the issue by the New South Wales Anti-Discrimination Board, supra note 49, contains

many other examples of probable religious based discrimination, and the reader is referred to that excellentsourcebook.

74 ~See Kirby, supra note 50; Walker, supra note 61.75 New South Wales Anti-Discrimination Board, supra note 49, 43.76 Gaze and Jones, supra note 52.

202 James RIchardson

discrimination against a number of minority religions, some of which I have mentionedherein.77 A 1985 report of this same body fOCused on discrimination against AustralianMuslims,,7s

The 1984 report of the New South Wales ~ti-Discrimination Board included arecommendation to add a provision precluding discrimination on the basis of religion tothe Anti-Discrimination Act but this led to a ftrestonn of criticism and no action was takenon the recommendation. According to Justice Kirby, the President of the New South WalesCourt of Appeal, politicians in New South Wales, following the lead of some majorChristian denominations, were apparently not ready to accept the need for such a newaddition even in the face of the growing multi-cultural character of New South Wales.79

In Victoria, the State of the famous Scientology case over the tax status of that church,similar concerns had arisen concerning the Seventh Day Adventists. The VictorianCommissioner of PrObate Duties had decided that this religious group,-' which has been inAustralia since 1~85, was not a religious institution under the tenns of the law. Justice 'Murphy, in his erudite opinion in the Scientology case noted this controversy and alsobandied the matter with dispatch even though it was not officially before the Court. After

,/ stating that early Christianity would not meet the criteria for a religion established by theSupreme Court of Victori~ Justice Mwphy stated unequivocally that the' Seventh DayAdventists were a religion under the Australian Constitution. His comments abOut earlyChristianity bear repeating:

Christianity claims to have begun with a founder and twelve adherents. It had no writtenconstitution, and no permanent meeting place. It borrowed heavily from the teachings of theJewish religion, but had no complete and absolute moral code. Its founder exhorted~ tolove one another and taught by example. Outsiders regarded his teachings, especially about thenature of divinity, as ambiguous, obscure and contradictory, as well as blasphemous and illegal.On the criteria used in this case by the Supreme Court of Vi~ori~ early Christianity would nothave been considered religious.80

Early in 1993 a controversy erupted when the Australian Attorney-General, MichaelLavarch, declared the Government's intention to adopt the United Nations 'Declaration onthe Elimination of all Fonns of Intolerance and ,of Discrimination Based on Religion orBelieF which contains strong language guaranteeing freedom of religion.. A number ofpeople and groups, the most vocal of whom were fundamentalist Christians, took severeissue with this proposal, and there was considerable attention in the media.81 'Thisopposition campaign, lalthough ultimately not successful, was reveaUng. Spokespersons forthose opposing adoption of the UN Declaration stated that they feared the govemment wastrying to accomplish what it bad failed to do in 1988 with the referendum, and further,that adoption of the Declaration would take away the primacy of the Christian faith inAustralia. State's rights issues were raised, as were concerns by major faiths that theadoption of~ Declaration would impact on the ability of such groups to organise theirreligious institutions as they saw fit.S2

77 New South Wales Anti-Discriminahoo~ S"'Q note 49.78 W Sadurski~ 'Last Among Equals: MiRorities and Australia Judge-Made Law~ (1989) 63 AKItmlioa lAw Joumal

474. ' ,19 Kirby, SMpm DOte 5(180 CltuJd of tlte New Foilk vC~,.frn~l Tax (Vic) (1983) 154 CLR 120~ 161.81 Bf~ 'Libs 'RethiDt' Stand OR Religious IntoIeraI'lce Bar' AMStTaIian Jewish News (Melboume edition~

,4 June 1993. '82 Kirby, 3.,.. DQte so.

Minority Religions and the Law 203

Signs of change in Australia?Although the situation in Australia is one of concern and even conflict about thedevelopment of fonnal religious freedom in Australia, there are signs

lof change in the

Australian approach to the freedom of religion and protection of religious minorities. First,it should be noted that not all the items discussed above had totally negative outcomes.There are checks and balances that work within the Australian system, of government andlegal system even if they do so slowly and sporadically. For instance, the Ananda Marga'convictions were eventually' overturned, as was the conviction of Mrs Chamberlain.Reasonable people and govellllriental officials admitted serious problems with both majorcases, and some action was taken, even though in both these major cases people "spentyears in prison before being released.

There were no official investigations of any new religious groups voted by anylegislature (although SMutch MP moved for such an investigation in the New SouthWales Parliament on March 3, 1993, meaning the issue is not dead). Federal and stategovernments regularly refused to support such requests officially on the ground of freedomof religion, although the executive branch agencies have sometimes set up their own studygroups o~ specific organisations. The children of The Family ,have been returned to them,and the major cases in New South Wales and ,Victoria appear to have been resolved,although not without difficulty and great expense in time and money. Scientology, aftermany court battles, seems to be begrudgingly accepted by most governmental authoritiesand institutional structures.

Efforts have been made in at least one State, New 'South Wales, through its Anti­Discrimination Board, to adopt a position on religious freedom more cognizant of themulticultural nat~ of Australian society (although, as, stated, the effort was notsuccessful)., The Federal Government was, after all, successful in .its plan to adopt theUnited Nations Declapltion dealing with religious intolerance, and there is growingrecognition that Australia is signatory to several international agreements which recognisereligious freedom as a fundamental right. Some of these documents also, protect the rightto change religions, a point of special significance for newer religious groups, which mustsolicit participation from those who are not affiliated or are affiliated \\{ith another faith.

Religious freedom arrd the, Australian courts,There has been a rising chorus of criticism about the passive role of the legal system inthe area of civil rights in Australia, with explicit calls for a more individual rights basedinterpretation of s 116.83 The Court may be responding to that chorus of criticism in a fewcontroversial decisions that suggest more latitude in applying s 116. The famous decision

, in the 1983 Scientology case, for instance, can be viewed as showing a greater respect forreligious diversity. The Court approached the issue in a serious and quite sophisticatedmanner as indicated by the substance of the opinions in tile case which show appreciationfor religious freedom. In their leading judgment, Mason ACJ and 'Brennan J stated:'Freedom of religion, the paradigm freedom of conscience, is the essence of a freesociety' .84

The High Court accepted that religious beliefs did not have to be theistic (that is, aperson does not have to believe in a god to be considered religious), and ,the Court, alsodefined religion as encompassing both belief and conduct which seems a reasonable stepforward. As Gabriel Moens _has noted,85 not accepting the false dichotomy of belief and

83 See Gaze and Jones, supra note 52; Sadurski, supra note 78; McLeish, supra note 58; Kirby supra note 50;Mortenson, supra note 49.

84 (1983) 154 CLR 120, 130.85 G Moens, 'The Action-Belief Dichotomy and Freedom of Reliron' (1989) 12 Sydney lAw Review 195.

204 James Richardson

conduct avoids the dilemma of the United states Supreme Court which fought mightilyfor decades to explain and defend tht1 distinction between belief and conduct since itsfateful inception in the famous Monnon polygamy case.86 Moens notes that ' ... the action­belief dichotomy has the potential 'to strike down any fonn of behaviour that the Statefinds undesirable. '87 Therefore, since virtually all religion involves action that is requiredof its devotees, all religion is potentially jeopardized by this crode dichotomy.

Following the Scientology decision in 1983, 'the High Court in 1,987 also refused toallow discrimination against an Islamic community which wished to build a mosque in asuburb of Sydney. The decision demonstrated considerable sophistication concerning the \type of society Australia is becoming, and the need to adjust usual rules' governing conductof religious groupS.88 A similar pattern of overturning negative local zoning decisions hasalso occurred with the Local Government Appeals Tribunal in s,everal cases involvingminority religions.89 '

What is even more interesting is criticism by high ranking judges themselves ofAustralia's legal position and record in the area of human rights. In 1993 The Australiannewspaper carried a major article about some prominent judges calling forI a pill of rightsto h~lp end discrimination in Australia.90 'Some might claim that this interest.in a bill ofrights by judges is an attempt to increase judicial power. However, studying theirarguments suggests otherwise. The Australian article did not mention religious freedomspecifically but contained quotations from 'Justice Wilcox of the Federal Court and JusticeKirby, President of the New South Wales Court of Appeal, decrying the current situationin Australia which, they claimed, does not protect minorities and is an internationalembarrassment for Australia.91 Members of the High Court have also joined the discussion.Although not focused strictly on religion, Chief Justice Mason gave presentations callingfor a more activist role for the Court in protecting the rights of minorities. It is quiterevealing to read some of tiis lectures given in the late 1980s in light of the Maho decision.The most interes~ing from the perspective of this paper was, his speech concerning theneed for an 'Australian Bill of Rights delivered in ~ 1'988 in Townsville to the AustralianBicentennial Conference.92 In that speech he discussed the 'phenomenal emergence ofhuman rights as a pre-emin~nt pol1tical. force in our time'93 which is challenging theorthodoxy of parliamentary supremacy. He went on to say:

Human rights ar,e now a potent rallying cry across the wodd, not least on the international stage.Human rights are seen as a countervailing force to the exercise of to~itarian, bureaucratic andinstitutional power - widely identified as the greatest threats to the liberty of the individual and

" democratic freedom in this century.94

He notes that such' rights are firmly entrenched in constitutions in the United States andEurope, except for the United Kingdom (and he suggests that the United Kingdom has an ,

I embarrassing record in th~ field of human rights,: as indicated by that country being broughtbefore the European CQ':lrt of Human Rights so many times). Chief Justice Mason statedthat any n~w constitutiort being written today will almost automatically include a bill of

86 Reynolds v United States 98 US 244 (1879).87 ,Moens, supra note 85, 211.88 Kirby, supra note 50.89 New South Wales Anti-Discrimination Board, supra note 49, 232-236.90 J Fife-Yoemans, 'BiU of Rights Needed to End Discrimination, Say Top Judges', The Australian, 18 October

1993,5.91 ,Also see Justice M Kirby, 'The Role of the Judge 'in Advancing Human Rights by Reference to Human Rights

Norms' (1988) 62 Australian 4w Journal 514; and Kirby, supra note 50. 1

92 Sir Anthony Mason, 'A Bill of Rights for Australia' (1989) 5 Austtalian Bar Review 79.93 Ibid94 Ibid

~, I

Minority Religions and the Law 205

rights. He seemed to lament the fact that Australia and New Zealand 'are virtually alonein standing outside this mainstream legal development' .95

Chief Justice Mason, after discussing'several criticisms of the idea of a bill of rights,offered a lengthy list of reasons why having one would be good for Australia. He admittedthat 'in A~stralia the need for this protection is not as great as it used to be'. This isbecause' of a surge of legislative activity in various states and at the federal level. But hedecried the breadth of this coverage as being narroWer than would be found in a bill ofrights, and the fact that the development has been 'uneven in their coverage', which meantthat citizens in some states enjoy greater rights than do those in qthers. It is noteworthythat this logic is similar to that used by the United States ,Supreme Court when it mademost of the Bill of Rights applicable to the States in America. 'Equal protection' was thelegal theory that carried the day in Americ~. Perhaps some variant of that notion is beingcontemplated in Australia.96

ConclusionsI Every society must develop a workable approach to balancing individual, group and

community rights in order not to stifle the creativity and energy of its citizens, to allowfor needed social experimentation so that the society does not become stagnant, and toration availa);>le resources.97 Sometimes, when a society is relatively homogeneous, andhas a cultural tradition of individual freedom, il may appear that there is little need fora~y special emphasis on group or individual rights. However, it may be more correct tosay that there is simply an overlap of community, group, and individual rights in such a

I situation which vitiates the need for any special attention.When the society is more diverse, then if that society is to function with the full

participation of all its members, recognition of group and individual rights should beallowed. Efforts can be made to force conformity but that would seem to fly in the face'of reality and of the international climate of opinion at this time. Suppression of minoritiestakes its toll on the moral fibre and resources of any society as the American case withBlack Americans has amply demonstrated.

The three societies' briefly reviewed herein in terms of their treatments of minorityreligions all suggest different approaches to the matter of balancing the rights ofindividuals, groups and communities even as they also show something of a similar pattern.In all three societies religious freedom, especially for minority faiths, seems to be hangingin the balance. .-

America, in this century, has been relatively tolerant of religious minorities until quite,recently when decisions of the United States Supreme Court have dramatically shifted theground rules. This has led to such a level of concern that the United States ,Congressattempted to move back to a pre-Smith kind of equilibrium with the Religious FreedomRestoration Act. Passage of the latter does not remove all barriers to minority religiouspractices, of course, and indeed, not many would want such a complete lack of restraint.However, the Religious Freedom Restoration Act does recognise the tremendous diversitywithin America to some degree, and demonstrates an attempt to accommodate that extrememulti-cultural reality. Such an important symbolic statement concerning the primacy ofre,ligious freedom in America could have the effect of granting more group rights to

95 Id 80. Of course, New Zealand approved a Bill of Rights in 1990, teaving Australia almost alone among Westernnations without such a governing document. ' I

96 In fairness, it should be said that Chief Justice Mason does mention freedom of religion specifically but only topoint out that decisions in this and other areas such as freedom of expression are difficult. He notes that theUnited States Supreme Court has had difficulty in developing a theoretical approach in dealing with freedom ofreligion and of expression, which has led to a 'bewildering array of confusing decisions'.

97 See Richardson, supra no~e 2; Robbins, and Bromley, supra note 3; Worthen, supra note 4.

206 James RIchardson,

'I

minority religious groups .even if the discUssion centres more on individual religiousfreedom. ~.

The 'New Europe' situation, as revealed by the pan-European institutions discussedherein, seems more difficult to fit into the tripartite scheme of Sir Ivor Richardson.However, i~ seems reason~ble to say that pan-European communitY' interests haveovercome virtually all others as Europe tries to organise a new societal form. The obviousdeference to 'Member State's Rights' shown in court decisions has/led to some subrnerg~ng

of group and individual rights, at least in the short teon. Arguments over whether to allowindividual claims against the Member States illustrate this issue, although the decision to'allow them seems also a recognition that in order to develop as a society the 'New Europe'must allow some recognition of such rights.

Some have also claimed that there is a degree of cynicism involved as the pan-Europeaninstitutions use individual rights to break down legal defences of Member States less sureabout European unity.98 In addition to the court actions described, the actions of theEuropean Parliament and the Parliamentary Assembly concerning minority religious groupscan be viewed as serving pan-European community interests in an expedient fashion byshowing Member States that their concerns in this area can be dealt with, and by furnishingsomething of a common problem for Member States to address collectively in pan­European bodies. ,

With appropriate deference to those who have studied the Australian situation longer,I also offer some comments about the Australian situation. First, it seems that Australia isin the grip of a massive struggle over the broad issue of human rights. The Mabocontroversy is but the tip of the iceberg. But like. most -icebergs, its major bulk isundetwater, hidden from easy view. People are beginning to understand that there is muchmore, 'down there' than just Mabo, and that realisation is causing consternation in ,manyquarters. '

Second, it is useful to apply Sir Ivor Richardson's typology of rights to the Australiansituation. Forces are li.ning up in defence of what Sir Iyor would call community rights,some claiming, for instance, that Mabo goes too far and will hurt Australian society in the ,future. Others/ are foc~sing· on developing more group rights for the Aboriginal people. Afew are urging more grQup rights for other minOrities in Australi~ society, and some aretalking about individual rights, including freedom of religion. S9me of these people ar:etrying to make a point that all these types of rights·are a part of a cogent and integrated

, package of rights that Australia is being forced to examine at this time. The balancing of, all these competing rights must begin and be done with all seriousness.

Third, the situation is not without its contradictions, of course, just as has been the casein America and elsewhere. For instance, some of the strongest proponents of group rightsfor Aborigines appear', much less enthusiastic about group rights for selected religiousminorities, or for religious freedom that might threaten usual ways of doing things inAustralia.99 The current approach to the relationship of state'to religion in Australia seemsto in one sense be a recognition of the group rights of $everal ~or religious groups inAustralian sOCiety but at the expense of group rights of other religious groups. One couldeven talk reasonably about a 'religious oligopoly' in Australia. lOo However, with thedevelopment of a more multi",cull\lral Australia a serious issue is being raised concerning_which other religious groups should be granted similar rights 10 those of the dominantreligious groups. I

Focusing· on only one part of the overall human tights package, such as Aboriginal

98 See discussion in Richardson, supra note 45.99 See for an example the discussion of Catholic efforts to have controls exercised against the Jehovah's Witnesses

in the 1940&: New South Wales Anti..Di~rimination Board, supra note 49, 202-205.100 ·Oligopoly' is defined in The MacqfrKlrie Dictionary as a market where there are few sellers.

Minority Religions and the Law 207

rights, may be a necessary step for some in Australia but that singular focus musteventually be expanded. Few societies can long justify granting rightsito only one minority

I group even if that' group has an apparent moral right to primacy. A truly multi~culturaI

society should, for the good of the overall long tenn interest of the society, grant grouprights to all minorities within its borders as well as individual rights to all who make upits body of citizens.

• I