Theories of Religious Education in Ireland

Rory O'Connell

doi:10.2307/3556578

Theories of Religious Education in Ireland

Published online by Cambridge University Press: 15 October 2015

Rory O'Connell

Article contents

Extract
References

Get access

Rights & Permissions

Extract

In this article I argue that an accommodationist approach to Church-State relations provides the most appropriate interpretation of the Irish Constitution. This accommodationist interpretation is however incompatible with Ireland's system of almost exclusively denominational education, in which denominational schools of all the Churches are funded.

To present all the details of this argument requires a lengthy, at times detailed, at other times an only too brief summary of features of Irish law and the educational establishment. The key points to bear in mind during this presentation are the following.

The schools which educate most children until the age of 18 are usually owned by different religious bodies, and have a particular denominational ethos. In Ireland we term these “denominational” schools. Only a small number of schools are multi-denominational or non-denominational. All schools, provided they have adequate local support, and adhere to national curricula and standards, receive State funding on a non-discriminatory basis. Even though they are owned by private bodies, there is massive State involvement. The State pays for almost all of the current running costs of these schools, and makes a significant contribution to the capital costs. The State also plays a major role in designing curricula and syllabi for the courses.

This educational system, which has developed along these lines ever since 1831, has only recently come under sustained legal scrutiny. The 1937 Irish Constitution provides for judicial review and our judges have often been active in using constitutional rights and principles to correct public policy, which strays from the constitutional path. However it offers no clear answer to the obvious moral issues raised by the educational system: the text recognises the right to education, the right to religious freedom, the principle of non-endowment of religion. However it also endorses state deference to parental wishes in the field of education, and explicitly sanctions state aid for denominational schools.

Type: Articles
Information: Journal of Law and Religion , Volume 14 , Issue 2 , 2000 , pp. 433 - 523

DOI: https://doi.org/10.2307/3556578 [Opens in a new window]
Copyright: Copyright © Center for the Study of Law and Religion at Emory University 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. The terms “denominational”, “multi-denominational” and “non-denominational” are the ones used in Ireland. A “denominational” school is one where one particular religious denomination is catered for, and that denomination's ethos dominates (a “sectarian” school in U.S. parlance). In Ireland denominational schools usually allow children from different denominations to attend, and usually excuse such students from religious instruction. A “multi-denominational” school is one which caters for the needs of students from several different religious backgrounds. A “non-denominational” school would not have any particular religious ethos, or provide religious instruction as part of its curriculum.

In Ireland the public debate is usually centred on the need for more multi-denominational schools.

In this article, whenever I first use a term which has a technical meaning in the Irish debate, or which I intend to use in a specific sense, I highlight to bring the fact to the reader's attention the first time it is used.

2. The Irish Constitution, Bunreacht na hÉireann was adopted in 1937. You can find relevant excerpts in the appendix to this article. The full text can be found at http:/www.irlgov.ie/taoiseach/publication/constitution/intro.htm.

3. Campaign to Separate Church & State Ltd. v The Minister for Educ, I.L.R.M. 24 1 (Ir. High Ct, 1996); and the appeal to the Ir. Supreme Ct, unrep (25 March, 1998) (now reported at 3 I.R. 32 1 (1998)). See also In re Article 26 of the Constitution & the Empl Equality Bill, 1997, Ir. Supreme Ct, unrep (15 May, 1997) (now reported at 2 I.R. 321 (1997)). In these decisions all the judges rejected a co-ordination viewpoint. Unfortunately it is not clear which of the alternative viewpoints commands majority support.

4. Quinn's Supermarket, I.R. 1, 23, per Walsh J. (1972).

5. Irish constitutional doctrine is unclear on the issue of positive rights. However it is clear that in some cases the Constitution imposes positive duties on the State to protect rights.

6. 1869 Ir. Church Act.

7. Private morality is immune from State interference except where there is a compelling public need to intervene: see Walsh, J., in M'Gee v Ireland, I.R. 384 (1974)Google Scholar.

8. Kennedy J. in Lee v Weisman, summed up these concerns powerfully, 505 U.S. 577 (1992):

‘The First Amendment's Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting non-believer, these same Clauses exist to protect religion from government interference.’ ‘ … if citizens are subjected to state- sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.”

9. I acknowledge immediately that there are many problems involved in demarcating the ideas of the secular and religious, and in maintaining neutrality among religions and between religion and irreligion. There is a further complication that according to some religious doctrines secularism is not an “irreligious” doctrine but a sectarian religious doctrine compatible with some but not all religions.

10. The most important statement of this viewpoint is Mescal, J., Religion in the Irish System of Education (Clonmore & Reynolds, 1957)Google Scholar.

11. The official Catholic position was uncompromising—it would have prohibited Catholics from attending all non-denominational, multi-denominational, or denominational non-Catholic schools. See O'Rahilly, A., The Irish University Question, 50 Studies: An Ir. Q Rev 225 (1961)Google Scholar.

12. Nolan, M., The Influence of Catholic Nationalism on the Legislature of the Irish Free State Irish Jurist 128, 130-33, 161 (1975)Google Scholar; Mescal, , Religion in the Irish System of Education at 53–59 (cited in note 10)Google Scholar.

13. Mescal, , Religion in the Irish System of Education at 105 (cited in note 10)Google Scholar.

14. Campaign to Separate Church & State Ltd. v The Minister for Educ, High Ct: I.L.R.M. 241 (1996) and the appeal to the Supreme Ct, unrep (25 March, 1998).

15. See Farren, S., The Politics of Irish Education, 1920-1965, (Inst Ir. Studies, 1995)Google Scholar; Coolahan, J., Irish Education: Its History and Structure (Inst Pub Administ, 1981)Google Scholar; Akenson, D., The Irish Education Experiment: The National System of Education in the Nineteenth Century (Roudedge & Kegan Paul, 1970)Google Scholar; Akenson, D., Pre-University Education, 1782-1870, 5 A New History of Ireland 523 (Oxford U Press, Vaughan, W., ed, 1989)Google Scholar; Akenson, D., Pre-University Education, 1870-1921, in 6 A New History of Ireland 522 (Oxford U Press, Vaughan, W., ed, 1996)Google Scholar; Ir. Nat'l Teachers Organisation, The Place of Religious Education in the National Schools System (INTO, 1991); Constitution Review Group's Report of the Constitution Review Group 338–56 (Gov Stationary Office, 1996 Pn 2632)Google Scholar; and the appendix by Hyland, A., The Multi-Denominational Experience at 630Google Scholar.

16. The primary level deals with students from the age of approximately 4-6 to the age of 12 or 13. The post-primary stage of education may last for 3, 5 or 6 years, and thus most children attend it between the ages of 12 and 18. Education is compulsory until the age of 15, but in practice most pupils remain in education until at least 17. Third level education is largely secular, with some significant exceptions.

17. The owner of the school is called the patron, and is usually a religious personage, or body.

18. This is carried out through administrative regulations, not on the basis of statute. Parliamentary approval only comes through die Parliament voting funds in the annual Finance bills to support this system. Since both the Administration and Legislature are obliged to respect the constitutional order, this does not affect the standards of constitutionality. See Campaign to Separate Church & State v Minister for Educ, 3 Barrington J.'s opinion (25 March, 1998).

The 1992 Green Paper on Education commented that: “Ireland is probably unique among European countries in the degree to which it administers an education system without a comprehensive and up-to-date legislative structure.” See also the comments of Costello J. in O'Callagban v Meath Vocational Educ Council, unrep at 1 (20 Nov, 1990).

19. Of state funded primary schools, 3,291 are denominational and only 26 are multi-denominational. Of 775 state funded post-primary schools, 528 are explicitly denominational. The 247 Vocational Schools are multi-denominational in theory, but show some signs of denominationalism.

20. The State—and the schools—nevertheless see this system as non-discriminatory since it provides funding for any National School project which receives sufficient local support. Today there are: 3,088 Catholic schools; 184 Church of Ireland schools; 16 Presbyterian schools; 1 Methodist school; 1 Jewish school; 1 Muslim school and 26 Multi-denominational schools. The one Muslim school was only established in 1996. (These figures were supplied by the Department of Education). The multi-denominational schools date to the 1970s and their establishment was controversial. See Report of the Constitution Review Group at 339 (cited in note 15); and Whyte, J., Church and State in Modern Ireland 392–95Google Scholar.

Secondary Schools, which educate 61% of post-primary level students, are almost all denominational.

The Vocational Schools educate 26% of post-primary students. Vocational Schools are managed by Vocational Educational Committees (associated with the local government structure) and are state funded. These Schools are supposed to be multi-denominational. Religious instruction is offered in them, and some (the 56 Vocational Colleges) also have state-funded chaplains. Despite their multi-denominational principle, there is some concern that the practice tends to be denominational. ( Alvey, , Irish Education, the Case for Secular Reform 53 (Church & State Books, 1991)Google Scholar citing a report in the Teachers' Union of Ireland J.)).

Community and Comprehensive Schools educate 13% of post-primary students. These schools are state funded. The Department of Education requires Community and Vocational Schools to hire religion teachers, whose salaries the State pays. It also requires Community Schools to appoint a Chaplain, whose salary is again provided by the State. The State has recendy proposed that Religion should become an examinable subject in post-primary schools. The 1997 Educ Bill (no 2) proposes: “§ 35-§ 5 of the Intermediate Educ (Ireland) Act, 1878 is hereby amended in para 4 by the deletion of, ‘provided that no examination shall be held in any subject of religious instruction, nor any payment made in respect thereof.”

21. See Coolahan, J., Irish Education at 265Google Scholar (cited in note 15); Casey, J.P., Constitutional Law in Ireland 565 (Sweet & Maxwell, 1992)Google Scholar; and Alvey, , Irish Education, The Case for Secular Reform at 45 (cited in note 20)Google Scholar.

22. Less than 5% of post-primary schools and less than 3% of primary schools receive no state assistance.

At the primary level there are about 3,200 “National Schools,” 115 schools for children with special needs and less than 80 private primary schools which receive no State funding. The National Schools educate 98% of all children attending primary education.

The post-primary level of education comprises 775 publicly aided schools and 38 “other and non-aided schools.” There are three different types of post-primary school: Secondary, Vocational, and Community. (Technically there are five types: Secondary, Vocational, Community, Comprehensive and Community College. Actually Vocational and Community College Schools can be considered quite similar, and Comprehensive and Community Schools can also be grouped as one type for many purposes.) The majority of post-primary schools are Secondary Schools: 452. Two hundred and forty-seven are Vocational and 76 are Community. (Dept Educ, Brief Description of the Irish Education System, at http:www. irlgov.ie/educ/organisation/21fe33a.htm, and the Report of the Constitution Review Group at 338-40.) (cited in note 15).

23. Until recently if a group wished to establish a school and receive state funding, it first had to pay for a site where a school could be constructed. Current administrative policy recognises that this is unrealistic in certain cases and now the State may agree to purchase the site for the group. This has eased one of the difficulties facing multi-denominational schools, whose promoters usually lack the organisation and financial assets of the denominations.

24. The National Schools Boards are a typical example: The Board of Management of each National School (introduced in 1975) is today composed of two nominees of the Patron, two parents, the Principal teacher in the sch, one other teacher, and two members representing the local community co-opted by the above mentioned members. The co-opted members must “have a commitment to the ethos of the school” that is its denominational character. (Dept Education's 1997 Boards of Management of National Schools—Constitution of Boards and Rules of Procedure).

25. Flynn v Power, I.L.R.M. 336 (1985), a decision by Costello J. upholding the firing of a teacher on the grounds that her activities outside a school were inimical to that school's values.

26. The policy of the National School system was laid down in a letter written by the Chief Secretary for Ireland to the members of the Nat'l Sch Bd in 1831- The document is called the “Stanley letter.” Its text is found in Akenson, The Irish Educational Experiment. The 1870 Report of the Powis Royal Commission of Inquiry into Primary Educ in Ireland described it as the “original charter” of the national system at 22.

27. Those schools had combined religious instruction for all pupils, where the instruction consisted only of bible reading without interpretation. This was perceived as being anti-Catholic. As the “Stanley letter” puts it: “the indiscriminate reading of the Holy Scriptures without note or comment by children must be particularly obnoxious to a Church which denies, even to adults, the right of unaided private interpretation of the Sacred Volume ….” Id.

28. The separate instruction would take place according to the tenets of each Church. Coolahan, Irish Education at 4-19 (cited at note 15).

29. The objections were various: there was profound distrust between the Churches, they each feared the proselytising activities of the others, and none of them accepted that a division could be made between secular and religious instruction, the Church of Ireland felt that its special established position would be undermined, the Catholic Church asserted its special position as the majority Church.

30. Birrell, speech in the 1912 Government of Ireland Bill Debate, in 42 Parliamentary Debates at col 2274 (23 Oct, 1912).

31. Coolahan, , Irish Education at 52 (cited at note 15)Google Scholar.

32. The Act provides that monies were to be used only for secular instruction, and that the Bd of Commissioners would have no competence in respect of religion. The debate in Parliament is interesting. Opponents of the bill saw it as a form of concurrent (for example, non-discriminatory) endowment for the benefit of denominational schools. Liberal proponents denied this, insisting that the funds were used directly only to aid secular instruction; whether it took place in denominational or non-denominational schools was not relevant. See vol 242 Parliamentary Debate col 262 et seq, (25 July, 1878) and col 1776 et seq (12 Aug, 1878).

33. Writing in 1970 Akenson noted:

The Irish national system of education has been preserved, as if in amber, in the Irish Republic's schools of the Twentieth Century …. To this day Irish primary schools remain small, clerically managed institutions in which Roman Catholic rarely meets Protestant … [the national school system] is a brittle fossil in the second half of die twentieth.

The Irish Education Experiment at 390 (cited in note 15).

The main changes introduced in the 1920s concerned the greater emphasis on Irish language and culture.

34. According to the 1926 Report of the Second National Programme Conference, it continues:

We assume therefore that Religious Instruction is a fundamental part of the school course. Though the time allotted to it as a specific subject is necessarily short, a religious spirit should inform and vivify the whole work of the school. The teacher—while careful in the presence of children of different religious belief, not to touch on matters of controversy—should constantly inculcate, in connection with secular subjects, the practice of charity, justice, truth, purity, patience, temperance, obedience to lawful authority and all the other moral virtues.

Hyland, , The Multi-Denominational Experience, Report of the Constitution Review Group 632 (cited in note 15)Google Scholar.

35. MacNeill, E., Guidelines for an Irish Educational Policy, in 14 Ir. Jur. 378 (1979)Google Scholar. See also Farren, S., The Politics of Irish Education ch five and six, especially 139–42 (cited in note 15)Google Scholar.

36. This was recognised in a number of reports, notably the 1926 Second Nat'l Programme Conference, and the 1953 Council of Educ Report—See Hyland, , The Multi-Denominational Experience at 632–33Google Scholar (cited in note 15).

37. Alvey, David, Irish Education, the Case for Secular Reform 53 (Church & State Books, 1991)Google Scholar citing a report in the Teachers' Union of Ireland J.

38. Preface to the Rules for the National Schools (1965).

39. The Handbook explained: “That the separation of religious and secular instruction into differentiated subject compartments serves only to throw the whole educational function out of focus; …” Primary School curriculum—Teacher's Handbook 19 (Dept Educ, Dublin, 1971)Google Scholar.

40. Apparendy the Department no longer regards itself as incompetent in the matter, at least at the level of post-primary education. See the 1997 Educ Bill (no 2) § 35.

41. Coolahan, , Irish Education 193Google Scholar et seq (cited in note 15); Keogh, Dermot, Twentieth Century Ireland: Nation and State 272 et seq (Gill & McMillan, 1994)Google Scholar.

42. See the debates in Symposium on Re-organising Irish Education in Studies (Autumn 1968).

43. See Whyte, , Church and State in Modern Ireland at 337-40, 390–92 (cited in note 20)Google Scholar.

44. For a time it had been customary to acknowledge that the various parties—State, society (especially parents) and schools were all content with this system of education.

Although such contentment is rarely supported by reference, it seems that there is no general serious dissatisfaction with the system. For a thorough going defence of the denominational principles, see Mescal, J., Religion in the Irish System of Education (Clonmore & Reynolds, 1957)Google Scholar. Defenders of the system argued that the nation's parents were satisfied with the system, that it was non-discriminatory—any school project which received sufficient local support and the initial funding would be supported by the State, that there was the right of pupils to absent themselves from religious instruction if they chose, finally, that, proportionately, the minority churches actually received more money than the Catholic Church.

45. See O'Flaherty, L., Religious Control of Schooling in Ireland, 13 Ir. Educ Studies 62 (1994)CrossRef Google Scholar.

46. According to the 1981 and the 1991 censuses, the figures in percentages are:

47. This trend became clearly identifiable in the 1970s—the removal from the Constitution of Article 44.1.1 and Article 44.1.2, and the birth of primary multi-denominational schools. During the 1980s the State removed controls on contraceptives, and introduced adoption for children of married parents. Prime Minister Fitzgerald proposed a “constitutional crusade” to make the Constitution a more openly pluralistic document. In the 1990s the State has gone a long way to recognising equal rights for gay men and lesbians. The high water mark of this movement was when the electorate voted (by a wafer thin majority) to remove the constitutional ban on divorce. This decreasingly hegemonic atmosphere promotes questioning of the extreme denominationalism of the school system.

For a discussion of the role of religion in Irish public life see Whyte, J., Church and State in Modern Ireland (Gill & McMillan, 1981)Google Scholar; Inglis, T., Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Ireland (U College Dublin Press, 1998)Google Scholar; Chubb, B., The Politics of the Irish Constitution ch 5 (Instit Pub Administ, 1991)Google Scholar; Hogan, , Law and Religion: Church-State Relations in Ireland from Independence to the Present Day, 47 Am J of Comp L 35 (1987)Google Scholar; as well as comments in the general history books.

48. O'Flaherty, , Religious Control of Schooling in Ireland, 13 Ir. Educ Studies 62 (1994)CrossRef Google Scholar.

49. The Minister for Educ recognises this.

On a social level, the consensus which previously operated and which facilitated the operation of the education system in our schools through an alliance of Government and school owners no longer exists. The other partners in education, notably parents and teachers, wish to see their role given formal recognition. Parents in particular increasingly want to exercise in a meaningful, practical way their constitutional rights and duties as the primary educators of their children. Furthermore, the interest which the wider community has in the quality of its schools and the scope for the community to contribute to the mission of the schools is recognised by most objective observers. A key objective of this Bill is to provide on a legislative basis for the respective roles and functions of all the partners in the education system.

Debate on the Educ (no 2) Bill, 1997, Dáil Éireann-Second Stage (5 Feb, 1998).

50. Report of the Constitution Review Group at 375 (cited in not e 15).

51. See Government paper Charting our Educational Future: White Paper on Education (1995).

52. According to a letter from the Department dated Nov 9, 1998, the following will be proposed as a revised wording of the Primary School Curriculum:

It is the duty of the school to provide a religious education that is consonant with its ethos and, at the same time, to be flexible in making alternative organisational arrangements for those who do not wish to avail of the particular religious ethos it offers. It is equally important that, in the course of a general engagement with the curriculum, the beliefs and sensibilities of every child are respected.

53. The Department has produced a draft syllabus, which emphasises that Religious Education should not be about indoctrinating students in a particular faith, but in exploring issues of religion in society. There will be a particlar emphasis on Christianity, but other religions will also be explored, and the course is intended to allow students to reflect on “human experience”. This will be an optional subject when implemented.

(Since this article was written, the 1998 Educ Act effected the necessary changes to the 1878 Intermediate Educ Act.)

54. There are clearly a number of features of this system to which one might take objection, from the viewpoint of civil rights or a secular conception of the state, including: “The funding of religious schools per se, whether denominational or multi-denominational; the funding of denominational schools; the funding of denominational schools with discriminatory practices; the funding of an educational establishment which embraces an “integrated curriculum”; the funding of the ‘religious’ activities, instruction, etc., in schools, specifically the paying of the salaries of religion teachers and chaplains; the accommodation, and indeed promotion, of religious activities (observance of denominational holidays, etc.); the establishment of exclusively denominational teacher training colleges; the presence of religious representatives on the Boards of Management, and Vocational Educational Councils; the absence of any genuine non-denominational (secular) alternative; the restricted options open to members of minority denominations.

55. That public interest group simply argued against the payment of chaplains' salaries in Community post-primary schools.

56. Works on Irish constitutional law include: Kelly, J., Hogan, G. and Whyte, G., The Irish Constitution (Butterworths, 1994)Google Scholar; Casey, J., Constitution Law in Ireland (Sweet & Maxwell, 1992)Google Scholar; Chubb, The Politics of the Irish Constitution (cited in note 47); Beytagh, F., Constitutionalism in Ireland: An American Perspective (Sweet & Maxwell, 1997)Google Scholar; Constitution Review Group, Report of the Constitution Review Group (Gov Pub Office, 1996)Google Scholar.

57. 1869 Ir. Church Act. See Shearman, H., Privatising a Church (Ulster Soc'y, 1995)Google Scholar; M'Dowell, R., The Church of Ireland 1869-1969 (Routledge & Kegan Paul, 1975)Google Scholar; Bell, P., Disestablishment in Ireland and Wales (SPCK, 1969)Google Scholar.

58. These “Home Rule” measures included the 1886 Government of Ireland Bill, 1893 Government of Ireland Bill, the 1914 Government of Ireland Act (the First World War prevented this from coming into force), and the 1920 Government of Ireland Act.

59. A link at the statutory level remained until 1948.

60. The legislative power is exercised by a bicameral Parliament (the Oireachtas) where the directly elected lower chamber (the House of Representatives/Dáil Éireann) dominates an indirectly elected upper chamber (the Senate). There is a titular Head of State (the President) who mostly discharges ceremonial functions. The executive power is vested in a cabinet (the Government), presided over by a Prime Minister (the Taoiseach). The Government is responsible to the Dáil, but the Dáil is a very compliant ‘master’ by virtue of the Prime Minister's power of dissolution. Further the actions of the President must usually be approved of (or at least not vetoed) by the Government. The Government also controls the administration and is clearly, in political terms, the dominant power in the land.

61. Judicial review of legislation is specifically sanctioned in the Constitution (arts 15.4, 26, 34.3, 34.4, 50). In principle only the High Ct and Supreme Ct can decide whether a statute is constitutional or not; any other court must refer the question to those courts.

Judicial review is subject to requirements of standing and ripeness familiar to U.S. lawyers, with the exception of “Article 26 references”. The constitutional validity of legislation can be raised in three types of proceedings:

• “incidentally”, that is as part of any ordinary court case;

• by means of “direct attack”, for example, an action initiated in the High Ct seeking a declaration that the legislation is invalid having regard to the terms of the Constitution;

• an abstract reference (“advisory opinion”) under article 26. This allows the President to refer a bill to the Supreme Ct for a decision as to its compatibility with the Constitution. This process must occur before promulgation, and the Court's opinion is binding—the President may not promulgate the bill if the Court finds it repugnant to the Constitution.

62. The apex of the judicial hierarchy is the Supreme Ct, which hears appeals in all areas of law, and sits in panels of either three or five judges. The Court is presided over by a Chief Justice. There are also courts of original jurisdiction, the most important of which is the High Ct, the highest court of first instance, presided over by the President of the High Ct.

The judiciary's independence is guaranteed by the Constitution. The Government decides who is to become a judge, though it must choose from the more experienced echelons of practising lawyers. Once appointed, a judge holds office until retirement at a set age. He or she cannot be removed except by a bill of impeachment for stated misbehaviour approved by both Houses of Parliament. No judge has ever been impeached.

63. Casey, J., The Development of Constitutional Law under Chief Justice Ó Dálaigh, 1 Dublin U L J 3 (1978)Google Scholar; Chubb, The Politics of the Irish Constitution ch 6 (cited in note 47); Hogan, G., Irish Nationalism as a Legal Ideology, in 75 Studies 528 (1986)Google Scholar; Toibin, C., Inside the Irish Supreme Court 8, in Magill (02 1985)Google Scholar.

64. There are some exceptions, for example, bills not yet enacted cannot be challenged (except under art 26); certain emergency powers cannot be held unconstitutional (art 28.2); and legislation approved under an article 26 review can never again be challenged in judicial proceedings.

65. The courts have developed a tort of “infringement of constitutional rights” which allows wronged persons to seek damages (or any other appropriate remedy) to vindicate their rights.

66. These include: the right a to trial in due course of law; the right to equality before the law; the rights to personal liberty; the rights to life, good name, person, property; the rights to life of the unborn and the mother; the right to travel abroad and to receive information; inviolability of dwelling; the rights to free expression, peaceful and unarmed assembly, association and union; the rights of the family; the rights of education; and various rights associated with religion.

67. This is because article 40.3.1 is “open-ended”; this is somewhat similar to some interpretations of the U.S. Ninth Amendment. See Brennan, W., The Ninth Amendment and Fundamental Rights in Human Rights and Constitution Law (Round Hall Press, O'Reilly, , ed, 1992)Google Scholar.

This doctrine was announced in Ryan v Ireland, I.R. 294 (1965), which recognised the unenumerated right to bodily integrity. Since then many more rights have been recognised: the right to dignity, the right to die in peace and dignity, the right to self-determination, the right to social contact with one's peers, the right to work and earn a livelihood, the right to privacy, the right of access to the courts, the right to a legal personality, the right to criminal legal aid, the right to be free from torture, the right to fair procedures, the right to marry, the right to procreate, the rights of children, the rights of unmarried families (art 41 is limited to the married family), the right to communicate. See Kelly, , Hogan, and Whyte, , The Irish Constitution at 755 et seq. (cited in note 56)Google Scholar.

The doctrine has recently been the focus of academic debate, some of it critical, with copious references to Robert Bork and J.H. Ely. See Kelly, Hogan and Whyte id, Kelly, Fundamental Rights in the Irish Law and Constitution, 37-42 (Figgis, 1967); Hogan, G., Unenumerated Personal Rights: Ryan's case re-evaluated, 95 Ir. Jur. 25–27 (1990–1992)Google Scholar; Humphreys, R., Constitutional Interpretation, 15 D.U.L.J. 59 (1993)Google Scholar; Humphreys, R., Interpreting Natural Rights 28-30 Ir. Jur. 221 (1993–1995)Google Scholar; Parker, J. Wilson, Must Constitutional Rights be Specified?, 32 Ir. Jur. 102 (1997)Google Scholar; Report of the Constitution Review Group 245 et seq. (cited in note 15).

68. Kelly, , Hogan, and Whyte, , The Irish Constitution xcv (cited in note 56)Google Scholar; Costello, , The Natural Law and the Constitution, 45 Studies 403 (1956)Google Scholar; Costello, , Book Review, 51 Studies 201 (1962)Google Scholar; Whyte, G., in the Irish Times, Question of chaplains pay shows ideological tensions (18 01 1996)Google Scholar; Whyte, G., Education, Religion and an Indeterminate Constitution in Doctrine and Life 274 (1997)Google Scholar; Lyons, F.S.L., Ireland Since the Famine 536–50 (Fontana, 1973)Google Scholar.

69. For sources on Irish law and education, see: Osborough, W.N., Education in the Irish Law and Constitution, 13 Ir.Jur. (1978)Google Scholar; Osborough, W.N., Irish Law and the Rights ofthe Irish School Teacher, 14 Ir. Jur. (1979)Google Scholar; MacNeill, E.Guidelines for an Irish Educational Policy, 14 Ir. Jur. (1979)Google Scholar, with a note by Osborough; Clarke, D., Freedom of Thought in Schools: a comparative study, 35 Int'l & Comp L Q 271 (1986)CrossRef Google Scholar; Clarke, D., Freedom of Thought and Educational Rights in the European Convention, 22 Ir. Jur. 28 (1987)Google Scholar; Whyte, G., Education and the Constitution: Convergence of Paradigm and Praxis, 69 Ir. Jur. 25–27 (1990–1992)Google Scholar; Whyte, G., Education and the Constitution in Lane, D., ed, Religion, Education and the Constitution (Columba Press, 1992)Google Scholar; Whyte, G., Education, Religion and an Indeterminate Constitution in Doctrine and Life 274 (1997)Google Scholar; Farry, M., Education and the Constitution (Sweet & Maxwell, 1996).Google Scholar

70. See Farrell, B., The Drafting of the Irish Free State Constitution, 5 Ir. Jur. 115, 343 (1970)Google Scholar; and 6 Ir. Jur. 111, 345 (1971).

71. For sources on law and religion see Hogan, G., Law and Religion: Church-State Relations in Ireland from Independence to the Present Day, 35 Am J of Comp L 47 (1987)CrossRef Google Scholar; Clarke, D., Church and State: Essays in Political Philosophy (Cork U Press, 1984)Google Scholar; Kelly, , Whyte, Hogan, The Irish Constitution at 1103 (cited in note 56)Google Scholar; Casey, , Constitutional Law in Ireland at 566 (cited in note 21)Google Scholar; and Whyte, G., Education, Religion and an Indeterminate Constitution in Doctrine and Life 274 (1997)Google Scholar.

For an international assessment of the state of religious freedom in Ireland, see Boyle, K. and Sheen, J., Freedom of Religion and Belief a World Report 344–51 (Routledge, 1997)CrossRef Google Scholar.

72. Keogh, Dermot, The Constitutional Revolution in Litton, F., ed, The Constitution of Ireland, 1937-1987 (1994)Google Scholar; Keogh, Dermot, Twentieth-Century Ireland: nation and state at 96 (cited in note 41)Google Scholar; Chubb, The Politics of the Irish Constitution chs 2 and 3 (cited in note 47).

It was a section without any parallel in the 1922 text. The first draft of article 44 would have effectively established the Catholic Church, in a manner deeply offensive to non-Catholics. It proposed to “acknowledge[s] that the true religion is that established by our Divine Lord Jesus Christ Himself … [and] the Church of Christ is the Catholic Church.” It would have recognised “the Church of Christ as a perfect society, having within itself full competence and sovereign authority, in respect of the spiritual good of man.” ( Keogh, , Twentieth Century Ireland at 98Google Scholar) (cited in note 41). Such provisions would have antagonised the minority Churches, and so the draft was altered.

Prime Minister DeValera wanted a section which would appease everyone, and the final draft achieved that aim. The minority churches were satisfied with the recognition in article 44.1.3 (and presumably the safeguards in art 44.2), and the Catholic Church was reasonably pleased with the “special position” recognised in article 44.1.1 (even though officially this was heretical). Very few people objected to article 44.1—the most vociferous was a group of radical Catholics who wanted the Catholic Church recognised as the one true Church. Only two members of the Parliament objected on grounds of principle (1937 Dáil Debates vol 67, cols 1885-1891 (4 June, 1937)).

The bulk of legal opinion in Ireland regarded the “special position” in article 44.1.2 as creating no special legal status or privilege, merely as stating a fact (In re Tilson, [1951] I.R. 1). Indeed in 1972, the Supreme Ct announced that article 44.1 demonstrated that the State was a pluralist state (Quinn's Supermarket, I.R. 1, 34, per Kenny J. (1972); M'Gee v Ireland, I.R. 285, 317, per Walsh J. (1974)). However some Northern Irish commentators were of the opinion that this provision established the Catholic Church as the official church: see Calvert, H., Constitutional Law in Northern Ireland 256 (Stevens & Sons, 1968)Google Scholar.

73. Quinn's Supermarket, I.R. 1, 23, per Walsh J. (1972).

74. Kelly, , Hogan, and Whyte, The Irish Constitution at 1092Google Scholar (cited in note 56); Casey, Constitutional Law in Ireland at 556 (cited in note 21)Google Scholar.

75. 1937 Dáil Debates vol 67 col 1891 (4 June, 1937).

76. Keane, J., Fundamental Rights in Irish Law 27–29Google Scholar in Human Rights and Constitutional Law (Round Hall Press, O'Reilly, , ed, 1992)Google Scholar.

77. See § 4 of the 1886 Bill.

78. § 3.

79. § 5 thereof:

neither the Parliament of Southern Ireland nor the Parliament of Northern Ireland shall make a law so as either directly or indirectly to establish or endow any religion, or prohibit or restrict the free exercise thereof or give a preference, privilege, or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at that school or alter the constitution of any religious body except where the alteration is approved on behalf of the religious body by the governing body thereof, or divert from any religious domination the fabric of cathedral churches, or, except for the purposes of roads, railways, lighting, water, or drainage works, or other works of public utility upon payment of compensation, any other property, or take any property without compensation.

80. Anglo-Irish Treaty:

Neither the parliament of the Irish Free State nor the Parliament of N Ireland shall make any law so as either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof or give any preference or impose any disability on account of religious belief or religious status or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school or make any discrimination as respects state aid between schools under the management of different religious denominations or divert from any religious denomination or educational institution any of its property except for public utility purposes and on payment of compensation.

(§ 16).

81. Article 8 provided:

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen and no law may be made either directly or indirectly to endow any religion or prohibit or restrict the free exercise thereof or give any preference or impose any disability on account of religious belief or religious status or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school or make any discrimination as respects State aid between schools under the management of different religious denominations or divert from any religious denomination or any educational institution any of its property except for the purposes of road, railways, lighting, water or drainage or other works of public utility and on payment of compensation.

82. D. Keogh, The Constitutional Revolution (cited in note 72).

83. He had proposed that religious education should be compulsory in all state aided schools (except for the children of dissenting parents); that the control of that religious teaching should remain in the hands of the religious body involved, without prejudice to the State's right of supervision; that no school should be penalised because it was owned by a religious denomination; that “There is no established or State-endowed Church”; that freedom of conscience and religion were guaranteed; and finally that “The State has the duty of making moral protection and religious ministrations available for citizens in public institutions such as educational establishments, barracks, hospitals, prisons, asylums.” Farrell, Brian, Drafting of the Irish Free State Constitution, in 5 Ir. Jur. 354 (1970)Google Scholar.

84. The 1937 text drops the qualifying phrase “directly or indirectly” from the non-endowment clause.

85. Report of the Constitution Review Group 369 (cited in note 15). Since the CRG also concluded that aspects of the education system were being maintained in an unconstitutional manner, this optimistic conclusion is surprising. See the Report at 375.

86. See Kelly, , Hogan, and Whyte, , The Irish Constitution xcviii–cxxiiGoogle Scholar (cited in note 56) for a general overview. For a recent critical assessment, see Kavanagh, A., The Quest for Legitimacy in Constitutional Interpretation, 32 Ir. Jur. 195 (1997)Google Scholar. See also Gwynn-Morgan, D., Constitutional Interpretation: Three Cautionary Tales, 10 D.U.L.J. 24 (1988)Google Scholar; Hogan, G., Unenumerated Personal Rights: Ryan's case re-evaluated, 95 Ir. Jur. 25–27 (1990–1992)Google Scholar; Humphreys, R., Constitutional Law—Bonjour Tristesse: reasons and results in constitutional adjudication, 14 D.U.L.J. 105 (1992)Google Scholar; Humphreys, R., Constitutional Interpretation, 15 D.U.L.J. 59 (1993)Google Scholar; Humphreys, R., Interpreting Natural Rights, 28-30 Ir. Jur. 221 (1993–1995)Google Scholar; and the various articles in Curtin, D. and O'Keefe, D., eds, Constitutional Adjudication in European Community and National Law (Butterworths, 1992)Google Scholar; Litton, F., ed, The Constitution of Ireland (Instit Pub Administ, 1987)Google Scholar.

87. So when the Supreme Ct had to decide whether the basic common law rule that there can be no appeal against an acquittal in a criminal case was constitutional, O'Higgins C.J. referred to article 34.4.3 which provides that there shall be an appeal from all decisions of the High Ct to the Supreme Ct. Simply, “plain words must … be given their plain meaning.” “All decisions” meant all decisions, and so there could be an appeal: People (DPP) v O'Shea, I.L.R.M. 549, 583 (1983).

88. Indeed, in O'Shea, the Supreme Ct divided three to two on the meaning of the clause!

89. A Constitution is not a Finance Act, as Gavan Duffy J. quipped in NUR v Sullivan, I.R. 77 (1947). See Dixon J. in O'Byrnev Minister for Finance, I.R. 1 (1959):

… in the case of a Constitution, which is a unique, fundamental document, concerned primarily with the statement of broad principles in general language, I am inclined to the view that it is not to be parsed with the particularity appropriate to ordinary legislation, and that the intention, if it can reasonably be gathered, should prevail.

Sometimes, the Irish text is used to clarify the meaning of the English one: M'Gee (Contraception case), I.R. 284(1974); O'Donoghue v Minister for Educ (right to education), 2 I.R. 20 (1996).

90. Thus in Tormey v Ireland, the Supreme Ct relied on a harmonious technique to avoid overturning the court structure established by law; I.R. 289 (1985). See Gwynn-Morgan, D., Constitutional Interpretation: Three Cautionary Tales, 10 D.U.L.J. 24 (1988)Google Scholar.

91. Kelly, , Hogan, and Whyte, , The Irish Constitution xcii, xcix (cited in note 56)Google Scholar.

92. See Kelly, J., Law and Manifesto, in Litton, F., ed, The Constitution of Ireland (cited in note 72)Google Scholar.

93. M. Farry believes that a historical interpretation offers the denominational system of education its “strongest defence”: The Green Paper, The Church and the Constitution, 82 Studies 160, 166 (1993)Google Scholar. Kenny J. observed this in Crowley v Ireland, I.R. 102, 126 (1980): “The Constitution must not be interpreted without reference to our history and to the conditions and intellectual climate of 1937 when almost all schools were under the control of a manager or of trustees who were not nominees of the State.”

94. The Supreme Ct indicated in 1940 that this would be a consideration, when it held that the Constitution allowed internment without trial. It explained that internment was a measure so widely used in the pre-1937 Irish State, that one would have expected an explicit prohibition on internment, if it was to be prohibited at all: Offences Against the State (Amendment) Bill, I.R. 470 (1940).

95. I.R. 284, 292 (1974); see also Melting v Ó Mathghamhna, I.R. 1 (1962); Ryan v Alt Gen, I.R. 294 (1965).

96. Sometimes, as in the first instance judgement of O'Keefe P. in M'Gee, it is confused with the previous variant: I.R. 285, 292 (1974).

97. I.R. 36 (1984).

98. The Supreme Ct has decisively rejected this version of the historical approach in many cases, including M'Gee where the Supreme Ct reversed O'Keefe P. There are many other cases where historical institutions existing in 1937 (and occasionally even mentioned in the text) have been swept away by a literalist, harmonious, purposive or moral standards analysis. For instance, most elements of the “royal prerogative” have been eliminated from the constitutional order despite being mentioned in the text itself (article 49). See Byrne v Ireland, I.R. 241; Howard v Commissioners for Pub Works, I.L.R.M. 665 (1993). See also State (Heafy) v O'Donoghue, I.R. 325, 347 (1976) (criminal legal aid). All the other approaches insist that: “regard must be had to the extent to which ideas and values prevailing at one period have been conditioned by the passage of time” F. v F.,2 I.L.R.M. 401, 410 (1994).

99. For, as O'Higgins C.J. said in O'Shea: “… the very existence of an inconsistency between what was formerly the law and what the words of the Constitution … declare, repeals and abrogates what had been the law.” I.L.R.M. 549, 553-54 (1983).

100. Records detailing the secret drafting of the Const have only been available since 1987; the Parliamentary debates are unenlightening, and as M'Carthy J. observed in Norris:

I find it philosophically impossible to carry out the necessary exercise of applying what I might believe to be the thinking of 1937 to the demands of 1983 … it would plainly be impossible to identify with the necessary degree of accuracy of description the standards or mores of the Irish people in 1937—indeed, it is no easy task to do so today.

101. The point behind this approach in summed up by Costello J. in a case dealing with whether the right to earn a livelihood was invaded when the State established a monopoly. Costello J. (as he then was) says: “… the courts should bear in mind that this document is a political one as well as a legal one and, whilst not ignoring the express text of the Constitution, a purposive approach … is often a desirable one.” Papertink v Att Gen, I.L.R.M. 373, 385 (1984).

See Murray v Ireland, I.R. 532, 539 (1985), rejecting a claim by a married couple, in jail, to be allowed to conceive children; Quinn's Supermarket, I.R. 14, 34 (1972), per Kenny J. explicitly preferring a purposive to a Iiteralist approach, and M'Grath & O Ruairc v Trustees of Maynooth College, I.L.R.M. 166, 187 (1979).

Sometimes the purposive argument has been taken very far indeed; see Att Gen v Hamilton (no 1), 2 I.R. 250 (1993); Meagber v Minister for Agriculture, 1 l.L.R.M. 1, 27 (1994).

102. State (Quinn) v Ryan, I.R. 70 (1965), at 123, per O Dálaigh C.J.:

It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen, that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights. As a necessary corollary, it follows that no one can with impunity set these rights at nought or circumvent them, and that the courts' powers in this regard are as ample as the defence of the Constitution requires.

103. People (DPP) v O'Shea, I.R. 384, 426 (1982). See his majority opinion in Tormey v Ireland, I.R. 289, 295-96 (1985); M'Gee, I.R. 284, 325 (1974); and O'Higgins C.J. in State (DPP) v Walsh, I.R. 412, 424 (1981).

104. Att Gen v X, 1 I.R. 1, 53, 71, 86 (1992).

105. See, for instance, M'Kenna v An Taoiseach (no 2), 2 I.R. 10 (1995).

106. Kelly, Hogan and Whyte, The Irish Constitution ci (cited in note 56).

107. In 1976, O'Higgins C.J. explained:

… rights given by the Constitution must be considered in accordance with the concepts of prudence, justice and charity which may gradually change or develop as society changes or develops, and which fall to be interpreted from time to time in accordance with prevailing ideas … the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to those virtues at the time of its enactment.

State (Healy) v Donoghue, (criminal legal aid) I.R. 325, 347 (1976). See also the powerful comments of Walsh J. in M'Gee, I.R. 284, 317-19 (1974).

108. Abortion Information Case, 2 I.L.R.M. 81, 102, 107 (1995). See F. v F., 2 I.L.R.M. 401, 408 (1994); Att Gen v X, 1 I.R. 1, 52-53 (1992).

For discussion of the relationship of the “natural law” to constitutional law, see: State (Ryan) v Lennon, I.R. 170, per Kennedy C.J. diss. (1935); Grogan, , The Constitution and the Natural Law, 8 Christus Rex 201 (1954)Google Scholar; Clarke, D., Church and State: Essays in Political Philosophy (Cork U Press, 1984)Google Scholar; Walsh, The Constitution and Constitutional Rights, in Litton, ed, the Constitution of Ireland; O'Hanlon, , Natural Rights and the Irish Constitution in Ir. L Times 8 (1993)Google Scholar; O'Hanlon, , The Judiciary and the Moral Law, 11 ILT 129 (1993)Google Scholar; Twomey, , The Death of the Natural Law?, 15 ILT 270 (1995)Google Scholar; Clarke, , The Constitution and Natural Law, 11 ILT 177 (1993)Google Scholar; Murphy, , Democracy, Natural Law and the Irish Constitution, 11 ILT 81 (1993)Google Scholar; Whyte, , Natural Law and the Constitution, 16 ILT 8 (1996)Google Scholar; De Blacam, , Justice andNatural Law, 32 Ir. Jur. 323 (1997)Google Scholar.

109. O'Leary, per Costello J., I.L.R.M. 454, 459 (1991).

110. Kelly, , Hogan, and Whyte, , The Irish Constitution at xciii, at 532–38 (cited in note 56)Google Scholar.

111. On occasion courts have relied on custom; for example, what political actors such as Parliament and the Government do, determine the meaning of the Constitution to be. However this is quite rare, and open to the obvious criticisms that the political branches should obey the Constitution, not determine its content. See Att Gen v Hamilton (no 1), (cabinet confidentiality) for a controversial example: I.L.R.M. 81, 99, 125 (1993).

112. See, for instance, the lengthy discussion of Church-State case law in Quinn's Supermarket, I.R. 1, 17-23 (1972); examination of age and religious discrimination in In re Article 26 & the Employment Equality Bill 1996 Supreme Ct, 2 I.R. 321 (1997); discussion of the right to use contraceptives in M'Gee I.R. 284, 326-28, 335 (1974); discussion of the right to die in In re A Ward of Ct, 2 I.R. 79, 129-33 (1996); analysis of discrimination and bills of attainder in An BlascaodMor Teoranta & Others v Commissioners of Public Works, High Ct, 1 I.L.R.M. 401 (2000) (27 Feb, 1998). In Norris, I.R. 36 (1984), M'Carthy J. observed that there were many similarities between the U.S. and Irish Constitutions.

113. See Byrne, I.R. 241, 267 (1972); Murphy v Att Gen, I.R. 241 (1982); Att Gen v Hamilton (no 1), I.L.R.M. 81, 88 (1993); Heaney v Ireland, 3 I.R. 593, 607 (1994); M'Kenna v An Taoiseach (no 2), 2 I.R. 10, 54 (1995), for references to British, Australian, Canadian, New Zealand, South African, Indian, German, French, Italian and Cypriot cases and laws.

114. In O'Leary v Att Gen, Costello J. decided that the right to a fair trial included the right to a presumption of innocence. In making this interpretation, he referred to the European Convention on Human Rights, the U.N. Universal Declaration, the American Charter of Human Rights and the African Charter on Human and Peoples' Rights: I.L.R.M. 454, 459 (1991). In Heaney v Ireland, 3 I.R. 593, 605-06 (1994) Costello J. found guidance in the case law of the European Ct of Human Rights. See also O'Donoghue, 2 I.R. 20 (1996); Desmond v Glackin, 3 I.R. 67 (1993).

The use of international instruments has been identified as being of particular importance by Humphreys, R., Constitutional Interpretation, 15 D.U.L.J. 59 (1993)Google Scholar.

115. There have been isolated references in case law to Aristotle, Hohfeld, and Cardozo (see M'Gee, I.R. 284, 318 per Walsh J (1974); Att Gen v Paperlink, I.L.R.M. 373, per Costello J. (1984); Murray v Ireland, I.R. 532, 540, per Costello J. (1985); and M'Kinley v Minister for Defence, 2 I.R. 333, 348, per Hederman J. (1992)). Some judges, when writing extrajudicially, have referred approvingly to Aquinas (Walsh, The Constitution and Constitutional Rights 94, in Litton, ed, The Constitution of Ireland; Costello J., Limiting Rights Constitutionally 178, 180, in O'Reilly, ed, Human Rights and Constitutional Law); Finnis, (O'Hanlon, Natural Rights and the Irish Constitution, 11 I.L.T. 8 (1993)Google Scholar and Dworkin ( Keane, J.'s Book Review of Law's Empire, 22 Ir. Jur. 125 (1987))Google Scholar. The Pope has done much better, with several judges appealing to papal encyclicals (Kenny J. in Ryan v Att Gen, I.R. 294 (1965) and O'Hanlon J. in O'Donoghue v Minister-forHealth and Others, 2 I.R. 20 (1996)).

116. See the references to Professor Kelly's work in Employment Equality Bill 1996, Supreme Ct 15, 2 I.R. 321 (May 1997); People (DPP) v Pringle, Supreme Ct (4 March, 1997); Comptroller & Auditor Gen v Ireland, High Ct, unrep (20 Dec, 1996); Riordan v Deputy Prime Minister Spring, 2 I.L.R.M. 107 (1996); Doyle v The Commissioner of the National Police, High Ct (27 Aug, 1997).

Professor Casey's work has also been referred to in An Blascaod Mor Teoranta & Others v Commissioners of Public Works, High Ct, 1 I.L.R.M. 401 (2000) (27 Feb, 1998); Eastern Health Board v Fitness to Practice Committee of the Medical Council, High Ct, unrep (3 April, 1998); Director of Public Prosecutions v Moroney, High Ct, unrep (3 Nov, 1994).

117. See Dworkin, , Law's Empire (Fontana, 1986)Google Scholar; Habermas, , Between Facts and Nortns, (MIT, 1995)Google Scholar, particularly ch 5. Note that Keane J., writing extrajudicially has endorsed Dworkin's interpretative approach: Book Review of Law's Empire, 22 Ir. Jur. 125 (1987).

118. Per Costello J. (as he then was) in Att Gen v Paperlink, I.L.R.M. 348 (1984); Murray v Ireland, I.R. 532 (1985).

119. Per Henchy J. in Tormey v Ireland, I.R. 289 (1985) (italics added).

120. Per Costello J. in Att Gen v Paperlink, I.L.R.M. 348 (1984).

121. A point emphasised implicitly in In re A Ward of Court, 2 I.R. 79, 161 per Denham J. (1996).

122. Quinn's Supermarket v Att Gen, I.R. 1, 14 (1972).

123. I.R. 1, 34, per Kenny J. (1972).

124. I.R. 1, 24, per Walsh J. (1972).

125. I.R. 284 (1974).

126. I.R. 284, 313, per Walsh J. (1974).

127. I.R. 284, 316, per Walsh J. (1974): “Correlatively, he is free to have no religious beliefs or to abstain from the practice or profession of any religion.” Note also at 303, per Fitzgerald C.J.

128. I.R. 284, 317, per Walsh J. (1974).

129. I.R. 284, 318, per Walsh J. (1974).

130. I.R. 284, 319, per Walsh J. (1974).

131. Norris v Ireland, I.R. 36 (1984); Att Gen (Soc'y for the Protection of the Unborn Child) v Open Door Counselling, I.R. 477 (1987). See R. O'Connell, Natural Law: Alive and Kicking? 258 in 9 Ratio Juris (1996). In Norris, O'Higgins C.J. declared:

The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity and recites that the people of Ireland humbly acknowledge their obligation to “our Divine Lord, Jesus Christ”. It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that faith and conviction and with Christian beliefs. (64)

See also Hamilton, P., Open Door Counselling, I.R. 477, 496 (1987)Google Scholar.

132. 1993 Crim L (Sexual Offences) Act.

133. See the Amendments to article 40.3-3 relating to the rights to travel and information.

134. See Abortion Information decision 81 in 2 I.L.R.M., especially at 104 (1995); F. v F., 2 I.L.R.M. 401, 408-09 (1994); In re A Ward of Ct (withholding of medical treatment), 2 I.R. 79, 90, 155 (1996).

135. 2 I.R. 79, 161 (1996).

136. Only three cases rely explicitly and significantly o n the theological portion s in the last 30 years: two are Norris and Open Door, which are now rather isolated examples. In contrast, since 1968, thirty-one cases refer to the constitutional duty to assure the “dignity and freedom of the individual” and 19 refer to the virtues of “Prudence, Justice and Charity”.

137. 1916 Proclamation of the Republic, text found in Curtis, E., McDowell, R., Irish Historical Documents 1172–1922 (Barnes & Noble, 1968)Google Scholar.

138. In fairness to the “alien government,” religious segregation was favoured not by the U.K. Government but by the different denominations in Ireland (at least during most of the 19th and 20th centuries).

139. Article 45.1 emphasis added. This provision cannot be invoked by the Courts to invalidate legislation, may be used as an interpretative guide: Kelly, , Hogan, and Whyte, , The Irish Constitution 1120 (cited in not e 56)Google Scholar.

140. M'Gee, I.R. 284, 326 per Henchy J. (1974). See also his dissenting opinion in Norris, I.R. 36, 72 (1984).

141. Compare the terms of article 42 with the 1990 Convention on the Rights of the Child, Protocol No. 1 to the European Convention on Human Rights.

142. By emphasising the pluralist element in this article I do not wish to suggest that this was necessarily envisaged by the drafters of the text. Undoubtedly they were influenced more by the State as supporter ideal which had its roots in Catholic social teaching. However as I have already indicated the use of the drafters intentions—(as opposed to their words)—is not an appropriate interpretative methodology.

143. Crowley v Ireland, I.R. 102 (1980); O'Donoghue v Minister for Health, 2 I.R. 20 (1996).

144. In re Employment Equality Bill.

145. Campaign to Separate Church and State, 2 I.L.R.M. 241, 257-58 (1996).

146. Kelly, , Hogan, and Whyte, , The Irish Constitution at xcii (cited in note 56)Google Scholar.

147. Campaign to Separate Church and State 26 (25 March, 1998).

148. I.R. 310 (1965). The case mostly turned on bodily integrity, and whether water fluoridation violated this right.

149. I.R. 350 (1965). Finlay P. thought that no contradiction existed between the High Ct and Supreme Ct decisions in this matter: Landers v Att Gen, 1, 5, in 109 Ir. L Times Rpt (1975).

150. 2 I.R. 20, 62 (1996). Although only a High Ct decision, it is a very detailed and well argued one which has found much acceptance with other High Ct judges: See Comerford v Minister for Educ, 2 I.L.R.M. 134 (1997); Law v Minister for Justice, Minister for Educ, The Minister for Health, Ireland, unrep (24 March, 1995).

151. An early case seemed to envisage a very limited role for the State; however that was a very early decision of the Supreme Ct exercising judicial review in rather special circumstances, and the holding has been the subject of much criticism. In re Sch Attendance Bill 1943, I.R. 334 (1943). See the discussion in Osborough, Osborough, W.N., Education in the Irish Law and Constitution, 13 Ir. Jur. 145 (1978)Google Scholar; Casey, , Constitutional Law in Ireland at 527 (cited in note 21)Google Scholar.

152. I.R. 102, 122, 126 (1980).

153. I.R. 102, 130 (1980).

154. See Kelly, , Hogan, and Whyte, , The Irish Constitution at 701, 787–89 (cited in note 56)Google Scholar. Casey describes it as “most unsatisfactory,” Casey, , Constitutional Law in Ireland at 526 (cited in note 21)Google Scholar.

155. For other examples, please see FN (a minor suing by his next friend MH) v Minister for Educ, Minister for Health, Ireland & the Att Gen & the E Health Bd (notice party), 2 ILRM 297 (1995); Comerford (a minor) suing by his mother and next friend Elizabeth Comerford v Minister for Educ, Ireland & the Att Gen & the E Health Bd (notice party), High Ct, 2 ILRM 134 (1997).

156. I.R. 102, 126-27 (1980). See also O'Higgins, C.J. at 122, arguing the article wished to avoid

the provision of free primary education in exclusively State schools. Rather was it intended that the State should ensure by the arrangements that it made that free primary education would be provided, when one remembers the long and turbulent history of the church schools in Ireland, and the sustained struggle for the right to maintain such schools by the religious authorities of all denominations in all parts of Ireland, one can well understand the care with which the words used must have been selected.

157. 2 I.R. 20, 65, 66, 67 (1996).

158. Paraphrasing Mills v Bd of Educ of DC, 348 F Supp 866 (1972), quoted by O'Hanlon, J., in O'Donoghue, 2 I.R. 20, 59 (1996)Google Scholar.

159. Supreme Ct, unrep (15 May, 1997).

160. Religious non-discrimination is also explicitly sanctioned in relation to certain political rights: article 40.6.2.

161. Among the cases reviewed were: M'Gowan v Maryland 366 U.S. 420 (1961); Two Guys from Harrison-Allentown v M'Ginley, 366 U.S. 582 (1961); Sherbert v Verner, 374 U.S. 398 (1963); Braunfield v Brown, 366 U.S. 599 (1961); Abington Sch D v Schempp, 374 U.S. 203 (1963), and especially Brennan J.'s opinion in the last named.

162. I.R. 1, 14 (1972).

163. I.R. 1, 24 (1972).

164. I.R. 284, 316 (1974).

165. I.R. 88 (1975).

166. I.R. 1 (1975).

167. I.L.R.M. 166 (1979).

168. Paragraph 702 of the 1964 Civil Rights Act; Church of Jesus Christ of the Latter Days Saints v Amos, 483 U.S. 327 (1987).

169. Supreme Ct, unrep (15 May, 1997). The statute was invalidated on other grounds.

170. There are other cases where the Courts recognise the freedoms of religious persons as acts of accommodation: R. v R., I.L.R.M. 125 (upholding privileged communications to religious persons) (1981) Merriman v St. James Hospital, (25 Nov, 1985) Ir. Times (ordering the re-instatement of a hospital worker who had refused to take a crucifix to a dying man); Flynn v Power, I.L.R.M. 336 (1985) a decision by Costello J. (upholding the firing of a teacher on the grounds that her activities outside a school were inimical to that school's values).

171. Farry, M., The Green Paper, The Church and the Constitution, 82 Studies 160, 169 (1993)Google Scholar.

172. I.R. 1, 15 (1972).

173. I.L.R.M. 166 (upholding the firing of two teachers from a State funded religiously run university) (1979).

174. Farry, M., Education and the Constitution (Sweet & Maxwell, 1996)Google Scholar; Farry, M., The Green Paper, 82 Studies 160 (1993)Google Scholar.

175. B. Walsh, The Constitution and Constitutional Right in Litton, ed, The Constitution of Ireland 1937-1987; Walsh, J., Existence and Meaning of Fundamental Rights in the Field of Education in Ireland, 2 Human Rights L J 319 (1981)Google Scholar.

176. Kelly, , Hogan, and Whyte, , The Irish Constitution at 1104, 1113 (cited in note 56)Google Scholar.

177. Report of the Constitution Review Group 375 (cited in note 15).

178. Constitutional law in Ireland at ch 19 (cited in note 21).

179. For Professor Clarke's criticisms, see Clarke, D., Freedom of nought in Schools: a comparative study, 35 Int'l & Comp L Q 271 (1986)CrossRef Google Scholar; Clarke, D., Freedom of Thought and Educational Rights in the European Convention, 22 Ir. Jur. 28 (1987)Google Scholar; Clarke, D., Church and State: Essays in Political Philosophy ch 6 (Cork U Press, 1984)Google Scholar. Professor Clarke's views have been described as too extreme by some legal academics.

180. Whyte, G., Education and the Constitution: Convergence of Paradigm and Praxis 25-27 Ir. Jur. 69 (1990–1992)Google Scholar; Whyte, G., Education and the Constitution in Lane, D., ed, Religion, Education and the Constitution (Columba Press, 1992)Google Scholar; Whyte, G., Education, Religion and an Indeterminate Constitution, Doctrine and Life 274 (1997)Google Scholar.

181. Constitutional Law of Ireland (Mercier, 1987)Google Scholar.

182. Calvert, Constitutional Law in Northern Ireland (cited in note 72); Graham, E., Religion and Education—The Constitutional Problem, 33 N Ir. Legal Q 20 (1982)Google Scholar.

183. Campaign to Separate Church and State 2 I.L.R.M. 241, 258-59 (1996).

184. I.R. 284, 316 (1974) (emphasis added). (Although that 1974 decision restricted the right to conscience to religious matters, as far as article 44 was concerned, it is noteworthy that the courts have referred to the unenumerated personal right to “follow one's conscience”: G. v the Adoption Bd, I.R. 32, 52 (1980) and to “dignity”: In re a Ward of Ct, 2 I.R. 79 (1996)).

185. I am not saying that denominational education infringes the conscience rights of people who accept the faith in question.

186. See Kelly, , Hogan, and Whyte, , The Irish Constitution at 687 (cited in note 56)Google Scholar.

187. Circuit Ct case, reported in Ir. Times (22 Feb, 1986).

188. 1926 Sch Attendance Act.

189. Griffin, S., Desegregating the National Schools: Archbishop Murray (1823-1852) as a Pioneer of Church-State co-operation, 13 Ir. Educ Studies 56 (1993)Google Scholar.

190. Ir. Nat'l Teachers Organisation The Place of Religious Education in the National School System 30.

191. That this is an ideal endorsed in some religious attitudes is clear: Editorial The Religious School in a Pluralist Society, 81 Studies 373 (1992)Google Scholar.

192. Quinn's Supermarket, I.R. 1(1972); Equality Employment Bill reference Supreme Ct, unrep (15 May, 1997).

193. O'Donoghue v Minister for Health, 2 I.R. 20 (1996).

194. Since I assume the reader is familiar with the U.S. debate, I will not try her patience further with extensive citation. Generally I have relied upon Robert Thomas Miller and Flowers, Ronald B., eds, Toward Benevolent Neutrality: Church, State, and the Supreme Court (Baylor U Press, 1998)Google Scholar; Abraham, Henry J.J. and Perry, Barbara A., Freedom and the Court: Civil flights and Liberties in the United States (Oxford U Press, 1998)Google Scholar; Tribe, Laurence H., American Constitutional Law (Foundation Press, 1988)Google Scholar.

195. 374 U.S. 203 (1963).

196. At 213, citing Zorach v Clauson, 343 U.S. 306, 313 (1952).

197. Clark J.'s words are poignant:

This is not to say, however, that religion has been so identified with our history and government that religious freedom is not likewise as strongly imbedded in our public and private life. Nothing but the most telling of personal experiences in religious persecution suffered by our forebears, see Everson v Bd of Educ … could have planted our belief in liberty of religious opinion any more deeply in our heritage.

198. At 231:

While our institutions reflect a firm conviction that we are a religious people, those institutions, by solemn constitutional injunction, may not officially involve religion in such a way as to prefer, discriminate against, or oppress, a particular sect or religion. Equally, the Constitution enjoins those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. The constitutional mandate expresses a deliberate and considered judgment that such matters are to be left to the conscience of the citizen, and declares as a basic postulate of the relation between the citizen and his government that “the rights of conscience are, in their nature, of peculiar delicacy, and will litde bear the gentlest touch of governmental and ….

199. At 294:

…. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends where secular means would suffice. When the secular and religious institutions become involved in such a manner, there inhere in the relationship precisely those dangers—as much to church as to state—which the Framers feared would subvert religious liberty and the strength of a system of secular government.

200. At 294-95:

For not every involvement of religion in public life violates the Establishment Clause …. ‘On the other hand, there may be myriad forms of involvements of government with religion which do not import such dangers, and therefore should not, in my judgment, be deemed to violate the Establishment Clause. Nothing in the Constitution compels the organs of government to be blind to what everyone else perceives—that religious differences among Americans have important and pervasive implications for our society. Likewise, nothing in the Establishment Clause forbids the application of legislation having purely secular ends in such a way as to alleviate burdens upon the free exercise of an individual's religious beliefs.'

201. Indeed even the most stalwart advocates of pluralism in Ireland tend to criticise some of the strict separation U.S. case law: See Redmond, M., Constitutional Aspects of Pluralism, 67 Studies 54 (1978)Google Scholar.

202. I am not referring to Bradford v Roberts, 175 U.S. 291 (1899) or Quick Bear v Leupp, (1908) 210 U.S. 50, although one Irish academic defender of the current denominational system believes they are useful guides “[d]espite a recent tendency to the contrary”: Farry, , Education and the Constitution at 134Google Scholar (cited in note 174). To the extent that those cases are relevant, they should be read in the context of the college cases discussed in the text, which lead to the opposite conclusion for which Dr. Farry argues.

203. Tilson v Richardson, 403 U.S. 672 (1971); Hunt v McNair, 413 U.S. 734 (1973); Roemer v Maryland, 426 U.S. 736 (1976). See Leavy, E., Raps, E., The Judicial Double Standard for State Aid to Church Affiliated Educational Institutions, 209 J Church & State 21 (1979)Google Scholar.

204. Kommers, D., The Constitution Jurisprudence of the Federal Republic of Germany 444 (Duke U Press, 1997)Google Scholar. See also Currie, D., The Constitution of the Federal Republic of Germany ch 5 (U Chi Press, 1994)Google Scholar.

205. Interdenominational School Case, 41 BVerfGE 29, cited in Kommers 467, 470 (1975).

206. 93 BverfGE 1, cited in Kommers at 478.

207. The example of Italy offers lessons similar to those derived from the German experience. Again one must be wary of the Italian cases, because of different textual provisions—the Italian Constitution contains no prohibition on endowment of religion, and does contain special provisions for relations with the Catholic Church (art 7).

The Italian Constitutional Ct accepts that the State must engage in the positive protection of religious rights (Case 195/1993 (19 April, 1993) Giurisprudenza Costituzionale 1324; Case 440/1995 (18 Oct, 1995)). However it must do so in a manner which respects the fundamental constitutional principle of pluralism, and so must do so in a non-discriminatory manner.

These requirements of pluralism, and respect for religious liberty and equality, entail that religious instruction, although provided in State funded schools, must be entirely non-obligatory. The decision to accept or reject it must not be accompanied with any burdens whatsoever. Thus it must be possible to attend education without feeling any pressure to attend the formal periods of religious education (Case 203/1989 (11 April, 1989) Giuris. Cost. 890; 13/1991 (11 Jan, 1991) 1 Giuris. Cost. 77)).

208. Farren, The Politics of Irish Education ch 3 (cited in note 15).

209. Co Council of Londonderry v M'Glade, N.I. 47 (1928).

210. The relevant documents are found in Graham, (cited in note 182).

211. Id.; Calvert, , The Constitution of Northern Ireland at 274 (cited in note 72)Google Scholar.

212. Graham, at 20, 40 (cited in note 182).

213. Indeed Irish courts have often commented on this, echoing the words of Marshall C.J., “it is a constitution we are expounding.”

214. Morgan, J., The New Irish Constitution 17 (Kennikat Press, 1912)Google Scholar.

215. §116 of the Australian 1900 Constitution Act says: “The Commonwealth shall make no law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required for any office or public trust under the Commonwealth.”

216. Boyle, and Sheen, , Freedom of Religion and Belief at 173 (cited in note 71)Google Scholar.

217. 146 C.L.R. 559 (1981).

218. 146 C.L.R. 559, 598 (italics added). See also 582, 613 (1981).

219. Clarke, D., Freedom of Thought and Educational Rights 22 Ir. Jur. 28. article 2Google Scholar, Protocol No 1 provides that (1987) “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

In respecting this right, the State must obey die principle of non-discrimination in article 14 of the Convention.

220. Danish Sex Education Case, Ser. A, No23. See Evans, M., Religious Liberty and International Law in Europe especially 355–59 (Cambridge U Press, 1997)CrossRef Google Scholar. It would appear that the State may never sanction “indoctrination”, in either specific classes or in an integrated curriculum. However it is not certain the Convention system would label the denominational system of education a form of indoctrination.

221. 2 I.L.R.M. 241 (1996).

222. 2 I.L.R.M. 241, 254, (1996). He relies on Bell, Disestablishment in Ireland and Wales ch 4 for this (SPCK, 1969).

223. 2 I.L.R.M. 241, 254 (1996). He relies on Marshall v Graham, (1907) 2 Kings Bench 112, 126; and Att Gen for the State of Victoria v Australia, 146 Commonwealth L Rpt 559, 582. (1981).

224. Supreme Ct, unrep (15 May, 1997).

225. Hamilton C.J. (who had delivered the Equality Empl Bill opinion), O'Flaherty and Denham J.J. concurred with Barrington J.'s opinion. Hamilton C.J. and O'Flaherty J. also agreed with Keane J.'s opinion.

226. Supreme Ct, unrep 23 of Barrington J.'s opinion (25 March, 1998).

227. He refers to the discussion in Graham, (cited in note 182).

228. Quinn's Supermarket, I.R. 1; Equality Employment Bill reference Supreme Ct, unrep 15 May 1997 (1972).

229. O'Donoghue 2 I.R. 20 (1996).

230. Contrast articles 44.2.1 and 44.2.3 with the U.S. First Amendment; indeed there is no right to education mentioned in the U.S. Constitution, which did not deter O'Hanlon J. from looking for U.S. assistance in interpreting the Irish right to education!

231. The U.K. has no written Constitution, has no judicial review, has no bill of rights. In addition it has not one, but two established churches. Finally most of the “relevant” case law from that jurisdiction concerns issues of charities and trusts, far removed from affairs of constitutional principle. The case of Marshall v Graham, cited by Irish judges for its definition of “establishment”, dealt mainly with whether a particular holiday was an obligatory religious observance day for one particular religion, 2 K.B. 112 (1907).

232. Clarke, , Freedom of nought arid Educational Rights in the European Convention, 22 Ir. Jur. 28 (1987)Google Scholar.

233. It appears that “religious instruction” for Barrington J. means something similar to “religious education” for Costello P. What Barrington J.'s idea of “religious education” is, is unclear but apparently it includes elements of what Costello P. calls “religious formation”.

234. At 16 Keane J. says that endowment involves “the vesting of property o r income in a religion as such in perpetual or quasi-perpetual form.” Costello P. however had earlier indicated that, prima facie, endowment would include paying the salary of a chaplain (1996) 2 I.L.R.M. 241, 254.

235. I.R. 350 (1965).

236. 2 I.R. 20 (1996).

237. See Lane, D., ed, Religion, Education and the Constitution (Columba Press, 1992)Google Scholar, especially the article by J. Hull, Religion and Education in a Pluralist Society; Ir. Nat'l Teachers Organisation The Place of Religious Education in the National School System (INTO, 1991); Burke, G., The Teaching of Senior Cycle Religion 10 Ir. Educ Studies No 1, 151 (1991)CrossRef Google Scholar; Editorial The Religious School in a Pluralist Society, 81 Studies 373 (1992)Google Scholar; Nat'l Council Curriculum and Assessment, Religious Education Consultation: Junior Certificate Syllabus (May 1997).

238. This is the interpretation placed on the word “any” in Att Gen v Commonwealth, 146 C.L.R. 559, 598, 604 (1981). Contrast Murphy J.'s dissent at 624.

239. Walsh, J., Existence and Meaning of Fundamental Rights in the Field of Education in Ireland, 2 Human Rights L J 319 (1981)Google Scholar.

240. M'Gee v Ireland, I.R. 284 (1974).

241. De Burca & Anderson v Att Gen, I.R. 38 (1976).

242. Brennan v Att Gen, I.L.R.M. 355 (1984); Blake v Att Gen, I.R. 117 (1982).

243. 1987 Adoption Bill (No 2) Article 26 reference I.R. 656 (1989).

244. Costello v Director of Public Prosecution, I.R. 436 (1984).

245. M'Mahon vAll Gen, I.R. 69 (1972).

246. State (Quinn) v Ryan, I.R. 70 (1965).

247. People v O'Shea, I.R. 384 (1982).

248. Webb v Ireland, I.R. 353 (1988).

249. Intermediate Educ (Ireland) Act, 1878.

250. Letter from the Dept Educ, Nov 9, 1998:

“There are no chaplains employed at primary level. Individual schools within their own parishes may organise some form of chaplaincy service but this is not part of the formal system. There are no religion teachers, per se, in the primary system. In Catholic schools all teachers are nominally involved in religious education while in other denominational schools and in multi-denominational schools there is a fairly common practice of using non-teaching personnel (local clergy) to provide some or all religious education. In such cases it falls to the school authorities to pay any costs incurred.”

“Chaplains are employed in all 77 (c.10% of post-primary schools) Community and Comprehensive schools and in designated Community Colleges (There are 56 such schools=7% of post-primary schools). These are specific types of post-primary school. Chaplains are not employed officially in other Secondary Schools.”

“Chaplains have been employed in Community/Comprehensive schools since about 1974.”

251. Bell, Disestablishment in Ireland and Wale ch 4 s (SPCK, 1969).

252. 241 Parliamentary Debates 415, 1482 Qune 28, July 15); 242 Parliamentary Debates 261, 1776 (July 25, Aug 12) (1878).

253. Vaughan, W., ed, 5 A New History of Ireland 736 (Oxford U Press, 1989)Google Scholar.

254. Suppose for instance the Government simply gave grants directly to students and told them to spend it on any educational facility they chose—would that be prohibited on an accommodationist argument? The same effect as direct funding of denominational education is achieved but indirectly.

255. Articles 44.1.2 and 44.1.3 were deleted by the Fifth Amendment approved in 1972 by 721,003 votes to 133, 430.

Article contents

Theories of Religious Education in Ireland

Extract

Access options

References

Save article to Kindle

Save article to Dropbox

Save article to Google Drive

Reply to: Submit a response

Your details

You have entered the maximum number of contributors

Conflicting interests