UNITED STATES – A key hallmark of Western constitutionalism is the demarcation between church and state. In the United States, secular government is enforced through express constitutional prohibition. The “Establishment Clause”, as contained within the First Amendment, says that “Congress shall make no law respecting an establishment of religion”. Implied however (and taken together with the Free Exercise Clause) is a prohibition upon the federal government preferring any religion or promoting any religious idea without a clear secular purpose. There is a developed body of jurisprudence on this issue and, as recent observations confirm, it remains a matter of lively public controversy.

The case of Salazar v. Buono, heard before the Supreme Court this month, adds to the debate about the proper ambit of the Establishment Clause. The key question for the Court will be whether a cross, erected as part of a war memorial on public land, offends the age-old constitutional prohibition. The cross, which was erected in the 1930s to honour war dead, stands in a remote part of Mojave National Preserve in California. A former employee of the National Parks Service, one Frank Buono, filed suit against the cross, claiming the monument contravenes the Establishment Clause. The land on which it sits is federal land, and this might show a preference for one religion (as represented by the cross) over another (given that permission was not granted for other religious symbols to be erected).

Certainly, from an Australian comparative perspective, the extent to which the prohibition has developed in the United States is most intriguing. While Australia shares a similarly-worded anti-establishment clause, contained within s 116 of the Commonwealth Constitution, it has been interpreted much less expansively. Indeed the Australian jurisprudence has not substantively dealt with matters of religious display or governmental preference and has rather confined the prohibition to its most literal terms, see Attorney-General (Vic) (Ex rel Black) v Commonwealth (1981) 146 CLR 559.

Further even if interpreted differently, s 116 would not apply to the States (unlike the Establishment Clause) and thus cannot enter the areas of public life where it has attracted such heated debate in the US (schools, prayer and religious displays, for instance, where those are State regulated areas). As a result, one would not likely see the same argument about whether a government-erected or maintained religious monument (not least a religious symbol on Commonwealth land) contravenes the prohibition in the Australian High Court.

In the United States, however, the question remains: how sensitive should the church/state separation mechanism be? Is an old wooden cross in a remote national park really on the continuum of threats to secular government? Inevitably debate will continue.

Further materials

• Salazar v. Buono, Case Materials – ScotUSWiki
• Oyez Case Summary