Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany
The recently published Australian Government’s Religious Freedom Review, of December 2018, drew attention to a perceived “limited understanding in the general [Australian] community about the human right to religious freedom, its application, and how it interacts with other human rights.” This is particularly apparent in the understanding of, and legal implications surrounding, conscience protection. Countries other than Australia have wrestled with this problem over extended periods and under diverse circumstances. Germany is a leading candidate for comparison because it has a comprehensive and detailed constitutional guarantee of freedom of conscience inside a federal structure. In contrast, Australia has (effectively) no such guarantee and this absence is becoming starker under the glaring lamps of legal opinion and ensuing legislative activity. The lack of unity in Australian law has left academics scratching their heads and has left the Australian polity in an awkward situation of legal and conceptual disunity. Thus, this Article explores recent cases regarding conscience and religious liberty in the German and Australian legal systems and offers commentary on the context of those cases and the possible implications for both countries. This Article does not consider all of the available ‘conscience cases,’ but focuses on the German constitutional cases dealing with headscarves and classroom crucifixes, and two very recent Australian cases concerning religious headwear in Australian courtrooms. In broad terms, it considers elements of comparative law, constitutional law, with the occasional foray into the realm of public reason.
Recommended Citation: Patrick T. Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, 43 Fordham Int'l L.J. 163 (2019).