Shifting understandings: Radical orthodoxy and the future of the secular state

Section 116 of the Australian Constitution states that the Commonwealth shall not make a law establishing any religion. This is commonly understood in the literature as equivalent to the establishment of a secular state. However, the implicit dichotomy between religion and the secular is questionable when neither term is clearly defined in an establishment context. Some constitutional jurisprudence appears to explicitly or implicitly view the ‘secular’ as a type of religion. This understanding has important implications for High Court jurisprudence surrounding non-establishment. In particular, this article argues that if the secular is a kind of religion, like all other religions it is conceivably subject to the prohibition against state establishment. It follows that the ‘secular state’ is not a constitutionally coherent approach to the relationship between religion and the state