The Constitution and Religion
The preamble to the Constitution has an explicitly Christian basis, which has been deployed in the interpretation of the Constitution. It is said to underpin the Christian nature of the State and has been used to justify the introduction of Christian principles and precepts into the judicial review of laws under the Constitution.
Formerly, the Constitution acknowledged the special position of the Roman Catholic Church as the faith professed by the majority of citizens. It also recognise the church of Ireland, Presbyterian Church, Methodist Church, Religious Society of Friends and Jewish Congregation and such other religious denominations existing in Ireland at the time of the coming into operation of the constitution. This provision was removed by Referendum in 1972.
Article 44.2 of the Constitution guarantees freedom of conscience and the free profession and practice of religion. The State cannot endow religion or discriminate on the basis of religious profession, belief, or status. Subject to public order and morality, a person is free to practise and profess the religion of his choice in accordance with his conscience. He may profess no belief or abstain for the practice of any particular religion.
A person shall not be coerced or compelled to act contrary to his conscience insofar as to the practice of religion is concerned. However, the fact that a person feels free obliged in conscience to pursue a particular activity or to follow a particular practice, is not protected if otherwise unlawful, even if mandated or even required by his religion.
Protections and guarantees along the above lines are common in most western countries. However, the Irish Constitution provides some less typical provisions in relation to religion. It provides that the State shall respect and honour religion. It provides that the State cannot discriminate between schools under the management of different religious denominations. Students of schools receiving public money cannot be obliged to attend religious instruction at that school.
Legislative Categories based on Religion
The Radio and Television Act prohibits the broadcast of advertisements directed towards any religious or political end or in relation to an industrial dispute. A broadcast relating to the resurrection of Christ was banned and the applicant claimed that the prohibition breached the protection of Article 44.
The Supreme Court found that lawmakers were entitled to take the view that citizens would resent such advertisements on divisive subjects and that the persons in a position to purchase advertisements could unfairly pursue their beliefs, to the detriment of others. If found that no form of discrimination existed on the basis of religious profession, belief or status under the provision. The restriction was minimalist and was rationally connected with an objective of legislation that is not arbitrary, unfair, or based on irrational considerations. It impaired constitutional rights as little as possible and was proportionate to the objective.
In the early 1970s, Superquinn challenged a regulation that discriminated in favour of Kosher butcher shops. It was held that the exception made in relation to the sale of meat killed in accordance with Jews rituals constituted discrimination on the grounds of religious belief and status. However, because the exemption from normal shop opening hours was designed to facilitate Jewish observance, the provision was found to be consistent with the guarantee of freedom of conscience and the profession of religion, subject to public order.
The implementation of the guarantee of free profession and practice of religion required a distinction to make it possible for persons professing and practising a religion, a guaranteed right, to do so. The distinction was not invalid under the Constitution. The law ensured and facilitated the practice of religion. However, the discrimination went too far, as it permitted Kosher shops to open each evening, whereas opening on Saturday only, was required to facilitate the free practice of the Jewish religion. To this extent, the restriction went too far and was struck down.
The Employment Equality Bill 1996 was referred to the Supreme Court by the President under Article 26 of the Constitution. The Bill contained permitted discrimination in certain circumstances, by allowing religious institutions to favour employees of one religion over another. The Court decided that this was permissible as a proportional restriction.
The adoption laws formerly permitted an adoption only if the adopted parents were the same religion as the child’s parents or the mother. The effect was that a couple of different religions could no adopt at all. The provision was found unconstitutional in that it discriminated on the basis of religion, without compelling justification.
Laws Affecting Religion
Laws that intentionally target a particular religious practice are subject to higher scrutiny than ones that indirectly affect them. In the case Murphy v IRTC, Supreme Court accepted that an outright ban on religious advertising did not prejudice or affect a person’s right, freedom to practise religion. “No question of any form of discrimination or distinction being made on the ground of religious profession, belief or status arise, once all religions are being treated equally, if only in a negative sense.”
Laws have been enacted, prohibiting or requiring particular practices, which run contrary to religion. Generally, the courts internationally have not been willing to allow special exemptions for law on the basis that the tenets of a particular religion, so require.
Religious practice and profession may be limited on the grounds of public morality. The nature of the morality concerned and the religion informing it is unclear. It is likely to be largely informed by Christian-type morality, which is arguably anomalous.
Discrimination on the Basis of Religion
The State may not discriminate on the ground of religious profession or belief. In the Quinn Supermarket v. Attorney General, the regulations made under the Shops (Hours of Trading) legislation was found discriminatory on religious grounds.
In Molloy v Minister for Education, teacher’s salary increments were claimed to be discriminatory as time spent teaching abroad for religious, but not by lay teachers was included in the computation of increments, allowed for laypersons but not religious teachers. The claimant was a Catholic priest who had taught abroad and the Supreme Court held this to be impermissible religious discrimination.
In M v An Bord Uctala an adoption case, the distinction made on a religious basis was prohibited. It proposed a disability that was not justified on grounds of public order or morality and was accordingly unconstitutional.
In the Quinn case, it was said that “if the implementation of the guarantee of free profession and practice of religion requires that a distinction should be made to make possible for persons professing or practising a particular religion, their guaranteed rights to do so, then such a distinction is not invalid having regard to the Constitution.”
The primary purpose of the guarantee against discrimination is to ensure freedom of practice of religion. Any law which, by virtue of the generality of its application, would by its effect, restrict or prevent the free profession or practice of religion by any persons, would be invalid, having regard to the provisions of the Constitution, unless it contains provisions which save from such restriction or prevention, the practice of religion of the person who would otherwise be restricted or prevented.
It would be completely contrary to the spirit and intent of Article 44.2 to permit the guarantee against discrimination on the ground of religious profession or belief to be made the very means of restricting or preventing the free practice or profession of religion.
Endowment of Religion
Pre-1972, the State recognised the special position of the Holy Catholic Apostolic and Roman Church, as “the guardian of the faith professed by the great majority of its citizens”. This was removed following a referendum in 1972.
Endowment is seen in the sense of endorsement of State religion. Endowment in the classic sense is the selection of favoured State religion for which permanent financial provision is made out of taxation or otherwise. It occurs in various other states.
In a challenge by Campaign to Separate Church and State,, the Supreme Court was of the view that the word ‘endow’ meant vesting of property or income in a religion as such in a perpetual or quasi-perpetual manner.
In the Maynooth College case, it was held that the college was not exclusively a seminary. The case did not consider whether it was constitutionally possible for a college while remaining essentially a seminary of a particular religion, to be financed as it is by the State and, whether statutes need to be revised to meet its changed academic status and composition.
State Support for Education
The payment of salaries to chaplains in community schools was challenged by the Campaign to Separate Church and State, on the basis that it offended the guarantee against the endowment of religion. The Supreme Court upheld the constitutionality of the provision. The payment of public monies for denominational schools was found not to be an endowment of religion. The provision of chaplains in Community Schools was found to be justified.
Parents have the right to have religious education provided in schools which their children attend. This followed from the guarantee in Article 42 of the right and duty of parents to provide for the religious and moral education of their children. The Supreme Court held that the protection was not designed to render unlawful aid to denominational schools, which was an essential feature of the Irish school system and was expressly acknowledged by the Constitution.
The Constitution guaranteed that any child could attend any school in receipt of public funds, provided that they could not be compelled to attend a religious course of instruction. The endowment of religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation. This is prohibited. However, the concurrent endowment of various religions was permissible.
Endowment implied vesting property or income in a religious body in a permanent semi-permanent perpetual form. This was not the case here as the support was indirect insofar as it removed the burden of providing salaries for priests, who happened to be chaplains. The right of the State to assist parents in the moral education of children could not, in the court’s view, be an unconstitutional endowment.
Discrimination in Education
A person dismissed by Maynooth College challenged his dismissal procedures on a number of grounds including that the State college, being in receipt of public money, could not discriminate on religious grounds. As in the Quinn case, the Supreme Court held that the State may on occasion, recognise and buttress protection for religion.
The College was a national seminary for students of the Roman Catholic priesthood. The discrimination in the College rules amounted to an implementation of the guarantee that every religious nomination should have the right to manage his own affairs, acquire and administer property and maintain institutions for religious or charitable purposes. On this basis, the discrimination was permissible.
Unconstitutional discrimination on the basis of religion was found in the case where the Department of Education scheme recognised teaching work by non-religious teachers abroad, but not that by religious teachers. The Supreme Court found the scheme to be unconstitutional, in this regard. It imposes a disability and discrimination on a person who happened to be a clergyman, nun, brother or other person holding religious rank, which was not applied to other persons not holding the equivalent position.
Provisions in the Employment Equality Bill 1996 which made certain distinctions and allowed certain exemptions on religious grounds from a general ban on discrimination on the grounds of religion, were upheld by the Supreme Court on similar grounds to that of the Maynooth case.
The Chief Justice said, “it is constitutionally permissible to make distinction or discrimination on grounds of religious profession, belief or status, in so far but only insofar as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion”. Accordingly, it appears that medical and educational bodies with a particular religious ethos may be allowed a certain degree of religious grounds preference in hiring employees.
A panel system of hiring teachers in Catholic-owned secondary schools, requiring previous teaching in those schools, was upheld. This was based on previous employment history, rather than religious belief. It was indicated that criteria based on actual religious belief or practice might be unconstitutional.
The matter has been influenced by Article 42 which entitles parents to have their children educated in denominational schools and preserve the right of those in charge to preserve their religious ethos.
The Maynooth case was influenced in part by Article 44.2.5 which allows every religious denomination to have the right to manage its own affairs. They accordingly implemented the guarantee.
Special Protection for Religious Property
The property of any religious denomination or any educational institution shall not be diverted, save for necessary works of public utility and on payment of compensation. Article 44.2.6.
The famous case of Cook v Carroll upheld so-called sacerdotal privilege in Ireland. This is the privilege of a Roman Catholic priest against disclosing matters, subject of confession.
The Supreme Court seemed open to extending the principle to other cases where a person receives counseling from a minister of his religion. In Johnson v Church of Scientology, the claim was rejected in the circumstances because there was insufficient evidence of the equivalence of relationship. The privilege had in any event been waived.
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