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Religious freedom and the ‘right to discriminate’ in the school admissions context: a neo-republican critique

Published online by Cambridge University Press:  02 January 2018

Eoin Daly  and
Tom Hickey
Eoin Daly*
Affiliation:
School of Law and Government, Dublin City University
Tom Hickey*
Affiliation:
(National University of Ireland, Galway)
*
*[email protected]
+[email protected]
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Abstract

In law and discourse, it has typically been assumed that the religious freedom of state-funded religious schools must trump any competing right to non-discrimination on grounds of belief. For example, the Irish Constitution has been interpreted as requiring the broad exemption of denominational schools from the statutory prohibition on religious discrimination in school admissions. This stance is mirrored in the UK Equality Act 2010. Thus, religious discrimination in the public education context has been rationalised with reference to a ‘liberty-equality dichotomy’, which prioritises the integrity of faith schools' ‘ethos’, as an imperative of religious freedom. We argue that this familiar conceptual dichotomy generates a novel set of absurdities in this peculiar context. We suggest that the construction of religious freedom and non-discrimination as separate and antagonistic values rests on a conceptually flawed definition of religious freedom itself, which overlooks the necessary dependence of religious freedom on non-discrimination. Furthermore, it overstates the necessity, to religious freedom, of religious schools' ‘right to discriminate’. We argue for an alternative ordering of the values of religious freedom and non-discrimination – which we locate within the neo-republican theory of freedom as non-domination.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 4 , December 2011 , pp. 615 - 643
Copyright
Copyright © Society of Legal Scholars 2011

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References

1 We use the phrase ‘non-coreligionists’ to refer to students attending such schools who hold beliefs – whether religious or non-religious – that do not correspond with the particular belief-system promoted by the school.

2 See Houses of Parliament Joint Committee on Human Rights Fifth Report 10 February 2006, discussed further below. Although the case was decided on very different grounds than those considered in this paper – primarily, that of racial rather than religious discrimination under the Race Relations Act 1976 – see also R (on the application of E) v JFS Governing Body[2009] UKSC 15. See also generally P Barber ‘State schools and religious authority: where to draw the line?’[2010] 12 Ecc LJ 224. The critique applied primarily to Irish law in this paper might also be applied to the similar legislative position in the UK, since the Equality Act 2010 in the latter jurisdiction also exempts faith schools from the prohibition on religious discrimination.

3 We use ‘republican’ and ‘neo-republican’ interchangeably. The latter refers to the scholarship following the so-called ‘republican revival’ in the mid to late twentieth century, and particularly to that of Philip Pettit.

4 See above n 2.

5 Notwithstanding the pressures placed on the framers to formally establish the Catholic Church, the constitutional provisions on religion, which include guarantees against discrimination and disabilities on religious grounds, have been seen as a ‘skilful endorsement of religious pluralism’; Hogan, G and Whyte, G JM Kelly: the Irish Constitution (Dublin: Butterworth, 2003)Google Scholar, at para. 7.8.13. As detailed below, Art 44 of the Irish Constitution gives ostensibly extensive protection to freedom of conscience and religion. Art 42.1 of the Constitution provides, inter alia, that ‘the State...guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.’

6 See generally Clarke, D ‘Education, the state and sectarian schools’ in Murphy, T (ed) Ireland's Evolving Constitution (Oxford: Hart, 1998)Google Scholar.

7 As further detailed below, Art 44.2.4 of the Irish Constitution prohibits discrimination amongst different religious denominations seeking state aid for denominational schools.

8 See Whyte, G ‘Education and the Constitution: convergence of paradigm and praxis’ (1994) 25–27 Irish Jurist 129 Google Scholar.

9 For example, it was stated in Re Tilson[1951] IR 1 at 14 that ‘religion holds in the Constitution the place of honour which the community has always accorded to it in public opinion.’ The Supreme Court also recognised the ‘right’ of the Catholic Church to ‘guard the faith’ of its adherents. See generally Daly, E ‘Religious freedom as a function of power relations: dubious claims on pluralism in the denominational schools debate’ (2009) 28 Irish Educational Studies 235 CrossRefGoogle Scholar.

10 See generally Coolahan, J Irish Education: History and Structure (Dublin: Institute of Public Administration, 1981)Google Scholar; Hyland, A ‘the multi-denominational experience in the national school system in Ireland’ (1989) 8 Irish Educational Studies 89 CrossRefGoogle Scholar.

11 See Daly, above n 9.

12 See Hickey, T ‘Freedom as non-domination and the Islamic Hijab in Irish schools’ (2009) 31 Dublin University Law Journal 128 Google Scholar.

13 See Information on Areas for Possible Divesting of Patronage of Primary Schools (Dublin: Department of Education and Skills, 2010) p 1 Google Scholar. See also, generally, Mawhinney, A Freedom of Religion and Schools: the Case of Ireland (Saarbrücken: VDM, 2009) p 50 Google Scholar; O'Mahony, C Educational Rights in Irish Law (Dublin: Thomson Round Hall, 2006) p 125 Google Scholar.

14 Research carried out by the Economic and Social Research Institute suggests that at post-primary level, 80% of schools accept all students who apply, while 20% engage in selection. Of those schools, 23% use ‘religion’ as a selection criterion. At primary school level, 19% of schools use selection criteria. Of those, 31% cite ‘religion’ as a criterion. See Smith, et al Adapting to Diversity: Irish Schools and Newcomer Students (Dublin: The Economic and Social Research Institute, 2009) pp 58–69 Google Scholar.

15 While the state is constitutionally prevented from discriminating on religious grounds in school recognition, school recognition is subject, inter alia, to the existence of a ‘critical mass’ of coreligionists that may warrant the establishment of an appropriate school. See Daly, above n 9.

16 Mawhinney, A ‘Freedom of religion in the Irish primary school system: a failure to protect human rights?’ (2007) 27 LS 379 Google Scholar at 385.

17 Art 44.2.4 of the Constitution states: ‘Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.’

18 Art 44.1 provides: ‘the homage of public worship is due to Almighty God’, and ‘the State...shall respect and honour religion.’ Art 44.2 states: ‘freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen’.

19 A Hyland ‘The multi-denominational experience in the national school system in Ireland’ (1989) 8 Irish Educational Studies 89 at 91: ‘By the beginning of the twentieth century, the Irish system of national education was fundamentally different to the systems in other parts of the UK. In England and Scotland “parallel” systems had evolved, that is, denominational schools existed side by side with local authority controlled schools...In Ireland provision was never made for a separate system of primary schools controlled by the local authority.’ Similarly, Glendenning notes that although the British authorities attempted, in the nineteenth century, to introduce ‘mixed’ non-sectarian education, ‘[this] was gradually abandoned as the [nineteenth] century progressed...as the church-state relationship became closer’. Glendenning, D Religion, Education and the Law (Dublin: Tottel, 2008) pp 303–304 Google Scholar . The preponderance of voluntary confessional schools constitutes ‘an unusual historical feature’ of Irish education, which represented the aim of ‘providing Catholic children with a Catholic education.’ Ibid, p 290.

20 O'Mahony terms this the ‘de facto privatisation of what might normally be considered the public education sector.’ O'Mahony, C ‘State liability for abuse in primary schools: systemic failure and O'Keeffe v Hickey’ (2009) 28 Irish Educational Studies 315 CrossRefGoogle Scholar at 318. In historical terms, ‘the system of primary schools, called national schools, that had developed since the Stanley Letter in the 1830s was almost entirely under the patronage of ecclesiastical authorities.’Criteria and Procedures for the Recognition of New Primary Schools: the Report of the Technical Working Group (Dublin: Commission on School Accommodation, 1998) p 11.

21 [1980] IR 201.

22 [1980] IR 201 at 126, emphasis added. However, Art 42.4 does not prevent the state from providing primary education directly, and the state has recently piloted an alternative model of ‘community’ primary school administered by public bodies. See P McGarry ‘A big first as two new state-run community schools open’The Irish Times 2 September 2008.

23 [1980] IR 20 at 126.

24 In Crowley v Ireland[1980] IR 201 at 216.

25 See Williams, K ‘Education and religious identity in the Republic of Ireland’ (1999) 47 British Journal of Educational Studies 317 CrossRefGoogle Scholar.

26 Art 44.2 provided: ‘The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.’ This was removed by the Fifth Amendment to the Constitution in 1972.

27 McNally, M ‘Séan O’Faoláin's discourse of “the betrayal of the Republic” in mid-twentieth century Ireland’ in Jennings, J and Honohan, I (eds) Republicanism in Theory and Practice (London: Routledge, 2005) p 83 Google Scholar, quoting Fanon, F [C Farringdon (transl)] The Wretched of the Earth (Harmondsworth: Penguin Books, 1965) pp 167–189 Google Scholar.

28 See Glendenning, above n 19.

29 McNally, above n 27, pp 79–94.

30 See S O'Faoláin ‘The plain people of Ireland’ (1943) 7(1) The Bell 1 at 7 as quoted in McNally, above n 27, p 88.

31 O'Faoláin referred to de Valera's ‘weak-mindedness’ in ‘presenting us with a lyrical picture of an Ireland that should count herself rich if rich be no more than a twenty-five acre farm.’ S O'Faoláin ‘To what possible future’ (1942) 4(1) The Bell 1 at 1–9, as quoted in McNally, above n 27, p 84.

32 See O'Faoláin, above n 30, at 6, as quoted in McNally, above n 27, p 87.

33 See Glendenning, above n 19.

34 Whyte, J Church and State in Modern Ireland (Dublin: Gill and Macmillan, 1980) p 21 Google Scholar.

35 See above n 8. Moreover, McCrea suggests that the Constitution ‘defines its ultimate notion of the good in explicitly religious terms.’ R McCrea ‘The recognition of religion within the constitutional and political order of the European Union’LSE ‘Europe in Question’ Discussion Paper Series Paper no 10, September 2009, p 6. Barrett notes the ‘invocation of God as source of all authority’ as a distinguishing feature. Barrett, R ‘Church and State in light of the report of the Constitution Review Group’ (1998) 5 Dublin University Law Journal 51 Google Scholar at 57.

36 The Act empowers the Minister for Education to ‘recognise’ and fund schools according to criteria including ‘the need to reflect the diversity of educational services provided in the state’, and requiring regard to be had to ‘the right of parents to send their children to a school of the parents' choice’, ss 6(1)(e); 7(4), (iii)–(iv).

37 [1998] 3 IR 321.

38 [1998] 3 IR 321 at 358.

39 [1999] 2 IR 321.

40 [1999] 2 IR 321 at 347, 344, emphasis added.

41 The High Court rejected the state's defence that it had adequately discharged its obligation to ‘provide for free primary education’ by funding 15 denominational schools within a 12-mile radius of the school seeking recognition. Laffoy J concluded that the Constitution did not allow the state ‘to fund a single system of primary education which is on offer to parents on a “take it or leave it” basis.’ However, it was nonetheless entitled to impose ‘rational’ criteria for recognition for schools. [1999] IR 321 at 347.

42 Art 44.2.4° also provides that ‘legislation providing State aid for denominational schools shall not discriminate between schools under the management of different denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.’ However, it is unclear whether the second clause of the provision creates a right of non-discrimination in enrolment specifically.

43 See Clarke, D ‘Education, the state and sectarian schools’ in Murphy, T (ed) Ireland's Evolving Constitution (Oxford: Hart Publishing, 1998)Google Scholar. This policy, Clarke writes, was based upon an assumption that there would be very few applications from non-coreligionists to such schools and that consequently, the schools would ‘tolerate their unwelcome presence as the price for public funding.’ It sought to ‘reconcile the demand of the Churches for sectarian schools and...the requirement that publicly-funded schools may not discriminate on religious grounds in their admissions policy’. Both Art 8 of the 1922 Constitution and Art 16 of the Anglo-Irish Treaty of 1921 stated ‘no law may be made either directly or indirectly to...affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at the school.’

44 Discrimination is defined as occurring where, on any of the grounds specific in the Act, ‘which exists at present or previously existed but no longer exists or may exist in the future, or which is imputed to the person concerned, a person is treated less favourably than another person is, has been or would be treated’, s 3(1)(a).

45 s 7(1).

46 Sch 3, para 11 of the 2010 Act exempts certain schools from the prohibition on religious discrimination in service provision. It disapplies s 29 of the Act to ‘(a) the curriculum of a school; (b) admission to a school which has a religious ethos; (c) acts of worship or other religious observance organised by or on behalf of a school (whether or not forming part of the curriculum); (d) the responsible body of a school which has a religious ethos....’ Moreover, s 85 provides that schools ‘must not discriminate against a person – (a) in the arrangements it makes for deciding who is offered admission as a pupil; (b) as to the terms on which it offers to admit the person as a pupil; (c) by not admitting the person as a pupil.’ However, Sch 11, s 5 disapplies this to ‘(foundation or voluntary school with religious character)’, independent schools registered as having a religious ethos, grant-aided schools conducted in the interests of churches or denominational bodies, and denominational schools provided under s 17 (2) of the Education (Scotland) Act 1980. This transposed more or less unchanged the provisions of the Equality Act 2006.

47 Directive 2000/782 prohibits discrimination on grounds of religion or belief, disability, age and sexual orientation in employment and vocational training; however, Art 4 provides an exemption where religious belief is a genuine and determining occupational requirement, and there is a legitimate objective for the requirement.

48 s 7(2)(a).

49 s 7(3)(c).

50 Writing from the perspective of a school patron, Bishop Colton argues that ‘it is almost never sustainable to show that the presence of a child of a different religion or none would work to the detriment of the ethos of an entire institution.’ Colton, P ‘Schools and the law: a patron's introspective’ (2009) 28 Irish Educational Studies 253 CrossRefGoogle Scholar at 264. Assuming provisionally that s 7 of the Act is constitutionally sound, it is interesting to note, nonetheless, that the application of s 7(3)(c), in the case of an undersubscribed school, might warrant judicial inquiry both into the nature of a school ethos and its doctrines, and the beliefs and practices of the child to whom admission is denied. The Supreme Court has stated: ‘the respect for religion which the Constitution requires the State to show [probably] implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the court and the court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.’Re Article 26 and the Employment Equality Bill 1996[1997] 3 IR 321 at 359.

51 Crowley v Ireland[1980] IR 102. In the High Court ruling, McMahon J noted that although the State was not obliged to discharge its obligation by providing schools in the ‘same parish’ in which children were resident, it had to provide reasonably accessible schools. Crowley v Ireland[1980] IR 102 at 113.

52 See A Sheridan ‘Is your child Catholic enough to get a place at school?’The Irish Times 1 May 2007.

53 See Archdiocese of Dublin (Press Release) ‘Parish pilots new enrolment policy’ 23 January 2008; J Walshe ‘“Catholics-first” regulation ditched in schools scheme’Irish Independent 24 January 2008.

54 See H McDonald ‘Ireland forced to open immigrant school’Guardian 25 September 2007, and R Boland ‘Faith before fairness’The Irish Times 8 September 2007.

55 Thus, Mawhinney notes: ‘in a context where 99% of schools in Ireland are denominational in character...there is a danger that a refusal to admit a pupil who is not of the appropriate religion may result in a violation of that child's right to education if no alternative school provision exists in the area.’ Mawhinney, above n 13, p 128.

56 [1972] IR 1.

57 Victuallers' Shops (Hours of Trading on Weekdays) (Dublin, Dun Laoghaire and Bray) Ord 1948, SI 175/1948, pursuant to s 25 of the Shops (Hours of Trading) Act 1938.

58 This was based partly on the interpretation of the Irish text of the provision –aon idirdhealú do dhéanamh– as approximating to ‘distinction’ rather than ‘discrimination’. [1972] IR 1 at 16.

59 Ibid.

60 [1972] IR 1 at 32.

61 Ibid.

62 Art 40.1 of the Constitution provides: ‘All citizens shall, as human persons, be held equal before the law.’ Thus, it prohibits a broad range of arbitrary and invidious distinctions in legislation. However, it is also broadly qualified by the proviso: ‘This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.’ Thus it permits many types of ‘discrimination’ in the narrow sense, where necessary to various policy goals. See Doyle, O Constitutional Equality Law (Dublin: Thomson Roundhall, 2004)Google Scholar.

63 [1972] IR 1 at 11. Walsh J stated: ‘Our Constitution reflects a firm conviction that we are religious people. The preamble to the Constitution acknowledges that we are a Christian people and Art 44, s 1(1), acknowledges that the homage of public worship is due to Almighty God but it does so in terms which do not confine the benefit of that acknowledgment to members of the Christian faith.’[1972] IR 1 at 23.

64 Ibid.

65 [1972] IR 1 at 26.

66 [1979] ILRM 166.

67 [1979] ILRM 166 at 214.

68 [1979] ILRM 166 at 187 per Henchy J.

69 Ibid.

70 Ibid.

71 [1997] 3 IR 321.

72 s 37(1).

73 This section also provided that such institutions could also take action ‘which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution’.

74 [1997] 3 IR 321 at 351. This was termed ‘positive discrimination’ by counsel for the Attorney General.

75 [1997] 3 IR 321 at 360.

76 Further authority for this position is provided in the case Greally v Min. for Education (No 2)[1999] 1 IR 1, which suggested that a recruitment system favouring clerical over non-clerical teachers could be justified in light of the constitutional right of parents to have their children educated in denominational schools (per Geoghegan J at 9).

77 Thus, Hogan and Whyte point out that ‘state financial support for a discriminatory admission policy is analogous to the legislative authorisation of religious discrimination by schools in employment policies.’ Hogan and Whyte, above n 5, p 2071. In the Oireachtas debates surrounding the Equal Status Bill, the Minister for Equality and Law Reform, Mr Mervyn Taylor, observed that the constitutional status of the Employment Equality Bill and the Equal Status Bill were closely related: ‘It will be obvious to Senators that there is a close relationship between this Bill and the Employment Equality Bill which the President has referred to the Supreme Court to test its constitutionality’ Seanad Éireann, vol 150, 15 April 1997, p 1468.

78 The prioritised right might be located both in the constitutional guarantee of the autonomy of religious denominations under Art 44.2.5°, as well as the free religious practice rights of those bodies under Art 44.2.1°, and more obviously, in the right of parents to have their children educated within a particular denominational tradition, as may be located within both Arts 44 and 42 of the Constitution.

79 The Oireachtas is the bicameral legislature of the Republic of Ireland.

80 Seanad Éireann, vol 150, 15 April 1997, p 1488, emphasis added.

81 [1999] IR 1.

82 [1999] IR 1 at 9.

83 Ibid. In this vein, the equivalent provisions of the Equal Status Bill were defended in the Oireachtas debates on the basis of the constitutional recognition of a ‘right’ to schools of a religious ethos. Minister Emmett Stagg stated: ‘the Minister is advised that the provision of Arts 42 and 44 of the Constitution, taken together with the decisions of the courts, means there is an entitlement under the Constitution to schools which are run in accordance with a religious ethos.’ Seanad Éireann, vol 151, 22 April 1997, p 153.

84 [1999] IR 1 at 10.

85 [1997] 3 IR 321 at 358, emphasis added.

86 Hogan and Whyte, above n 5, p 2054.

87 This may be understood in light of the fact that the Constitution appears to recognise religion, in a non-denominational sense, as something of a public good, which it may promote in an appropriately non-sectarian way. Keane J interprets Art 44, in the Campaign case, as recognising that ‘religion plays an important part in Irish life...[and] the importance of the part played by religion in the lives of so many people.’[1998] 3 IR 321 at 358–359.

88 ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion....’ Although it applies only in the exercise of Convention rights rather than as a stand-alone non-discrimination principle, Art 14 may ground a claim in situations where substantive Convention rights have not been breached. As O'Connell notes, Art 14 has for this reason sometimes been derided as a ‘Cinderella provision’. O'Connell, R ‘Cinderella comes to the ball: Art 14 and the right to non-discrimination in the Echr’ (2009) 29 LS 211 Google Scholar. Art 14 may be applied independently of any breach of substantive rights where ‘a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case.’Airey v Ireland (9 October 1979) application no 6289/73, para 30. Since Protocol 1 of the Convention protects the right to education, Art 14 applies to any discrimination in the exercise of this right.

89 Art 14 requires that any discrimination on religious grounds in the application of Convention rights would have to be justified by, and proportionate to, a compelling purpose or ‘rational aim’. In Abdulaziz, Cabales and Balkandali v the United Kingdom it was held: ‘a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised.’ (28 May 1985) application nos 9214/80; 9473/81; 9474/81, para 30. See also Marckx v Belgium (13 June 1979) application no 6833/74. In Hoffman v Austria (23 June 1993) application no 12875/87, the ECtHR stated that ‘a distinction based essentially on a difference in religion is not acceptable’, para 36, indicating a particularly strict standard of review in such cases.

90 See Joint Committee on Human Rights Fifth Report 10 February 2006. In light of the recognition of Art 14 in British law, the Committee also ‘expressed concern that the breadth of the exceptions for schools under what is now clause 50 of the Bill to the duty of non-discrimination on grounds of religion or belief, could permit pupils to be subject to a range of detriments which might not be objectively and reasonably justified in the interests of protecting the rights to freedom of religion of others, in breach of the Convention rights, in particular the Art 9 ECHR right to freedom of religion and belief, read in conjunction with the right to freedom from discrimination in Art 14...although the exceptions in Part 2 were unlikely to be incompatible on their face with the Convention rights, their wide scope would fail to prevent treatment contrary to the Convention rights.’ Para 2.3, emphasis added. In light of the Abdulaziz ruling, it might appear plausible that the upholding of the religious ethos of schools, or the organisational autonomy of religious bodies, represents an ‘objective and reasonable justification’. For example, differential treatment representing ‘positive discrimination’ will not generally fall within the ambit of the provision. See Mullan, G ‘Discrimination law’ in Kilkelly, U (ed) ECHR and Irish Law (Bristol: Jordan, 2004) p 228 Google Scholar.

91 Art 44.2.4 protects ‘the right of any child to attend a school receiving public money without attending religious instruction at that school’, suggesting that the framers envisaged that certain children would inevitably have to attend denominational schools as non-coreligionists.

92 In contrast to the Quinn's Supermarket ruling, no evidence was adduced in Employment Equality Bill as to the potential burden imposed by rigid non-discrimination principles on religious liberty.

93 In the UK the Houses of Parliament Joint Committee on Human Rights concluded that religious freedom, within the meaning of Art 9 ECHR, required only that state-funded religious schools be permitted to ‘continue to operate as such’, rather than as warranting discriminatory enrolment policies. The committee also ‘expressed concern that the breadth of the exceptions for schools under what is now clause 50 of the Bill to the duty of non-discrimination on grounds of religion or belief, could permit pupils to be subject to a range of detriments which might not be objectively and reasonably justified in the interests of protecting the rights to freedom of religion of others, in breach of the Convention rights, in particular the Art 9 ECHR right to freedom of religion and belief, read in conjunction with the right to freedom from discrimination in Art 14.’ Para 2.3, emphasis added.

94 In Mawhinney's empirical study, 78% of respondent schools citing religion as a criterion in their admission policies. Mawhinney, above n 13, p 135. Sheridan, above n 52.

95 K Holmquist ‘Allegations of religious bias in schools increase’The Irish Times 6 May 2003. Deputy Ruairí Quinn observed: ‘some Catholic schools in Dublin South East require a baptismal certificate for the child...For some, the request for a baptismal certificate is an affront, if not a surprise. The parents assumed, wrongly, that the primary school was the local school. As a result a new phenomenon is developing; the emergence of “compulsory Catholic”...[Parents] realise that a visit to the baptismal font is between them and access to a primary school place for their child...[they] are now required to make solemn vows, before a priest, to raise the child as a practising Catholic.’ R Quinn ‘Time to transfer control of primary education’The Irish Times 26 January 2010.

96 The otherwise proscribed criteria from which denominational schools are exempted are ‘that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”)'s; 3(2)(e). These possibilities assume that the Act permits policies requiring production of evidence of ongoing religious affiliation or practice, as well as of initial adherence as evidenced by a baptismal certificate.

97 Thus, Mawhinney's survey confirmed the widespread requirement of adducing evidence of religious affiliation. It elicited responses such as: ‘People I know who wouldn't believe in Catholicism still get their children baptised Roman Catholic because it's easier...My brother-in-law got this daughter baptised just in case she couldn't get into a good Catholic school.’ Mawhinney, above n 13, p 136. On the basis of her study, Mawhinney observes that parents ‘may feel the need to appear to be practising a particular religion and to take measures such as getting their child baptised in order to secure a school place for their child.’ Ibid, p 142.

98 Rawls, J A Theory of Justice (Cambridge: Harvard University Press, 1999) p 186 Google Scholar.

99 See, for example, Barber, above n 2.

100 See Pettit, P Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press, 1997)Google Scholar; Skinner, Q Liberty before Liberalism (Cambridge: Cambridge University Press, 1998)Google Scholar.

101 ‘An act is perpetrated on an arbitrary basis...if it is subject just to the arbitrium, the decision of judgement, of the agent; the agent was in a position to choose it or not to choose it, at their pleasure. When we say that an act of interference is perpetrated on an arbitrary basis, then, we imply that like an arbitrary act it is chosen or not chosen at the agent's pleasure’. Pettit, above n 100, p 55.

102 See Pettit, above n 100, p 32; and Skinner, above n 100, p 40.

103 These examples, of course, are not likely to involve the degree of domination exemplifying the master-slave relationship.

104 Pettit, noting the formative influence on his work of his own experience in a Catholic seminary, wrote: ‘[the republican] idea of freedom immediately caught by imagination. Perhaps that was because it made sense of my experience when, intending to be a priest, I had spent years in establishments I later learned to describe...as total institutions. While such schools and seminaries offered wonderful opportunities for study and comradeship, they certainly did not teach us to look the authorities in the eye, confident of knowing where we stood and not being subject to capricious judgment. On the contrary, they communicated a systematic vulnerability and exposure to the governing will, sometimes even making a virtue of the practice.’ Above n 100, p viii.

105 See Hobbes, T [MacPherson, Cb (ed)] Leviathan (London: Penguin, 1968 1651)Google Scholar; Bentham, J [Bowring, J (ed)] Anarchical Fallacies , in The Works of Jeremy Bentham (Edinburgh: William Tait, 1843)Google Scholar; Mill, J ‘On liberty’ in Gray, J (ed) On Liberty and Other Essays (Oxford: Oxford University Press, 1991)Google Scholar; Berlin, I Two Concepts of Liberty (Oxford: Oxford University Press, 1958)Google Scholar.

106 P Pettit ‘Law and liberty’ in Princeton Law and Public Affairs Working Paper Series Paper no 08-010 p 1.

107 We use the ‘liberal’ categorisation loosely here and elsewhere. Although the conception of ‘freedom as non-interference’ emerged in the works of scholars such as Hobbes (an absolutist), it was popularised by Bentham (a utilitarian). Isaiah Berlin (a liberal) was emphatically in favour of the non-interference thesis, while the early Rawls (a political liberal) also (arguably) seemed to conceive of liberty in terms of non-interference. This categorisation as the ‘liberal’ conception may be misleading, however, as most progressive liberals in the contemporary world may adhere to the republican conception.

108 Pettit, P ‘Freedom in the market’ (2006) Politics, Philosophy and Economics 131 CrossRefGoogle Scholar at 137.

109 See Pettit, above n 100, pp 85–92.

110 It is worth setting out Pettit's more recent work distinguishing between the republican and the Benthamite understandings of law and liberty. See Pettit, ‘Law and liberty’ in Besson, S and Marti, J (eds) Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009) pp 39–59 Google Scholar. In order to clarify the difference, Pettit distinguishes between ‘control’ and ‘alien control’. In a scenario between two agents, A and B, and a range of choice: x, y and z, A controls B's choice to the extent that (notwithstanding defiance on B's part) A acts, intentionally or quasi-intentionally, in such a way as to increase the probability that B will choose according to A's tastes. But A's conduct – his ‘control’– will interfere with B's freedom only in some circumstances. He controls in a non-alien way if he deliberates with B, suggesting the better course of action, but ultimately allows B to choose. He may even offer B a reward for choosing x, thereby introducing a new choice into the range: x#. Still B is ultimately in control. A's control is alien control, and so inimical to B's freedom, only if he intervenes to remove or replace an option, or acts in such a way as to lead B into believing that some of the options are removed or replaced. Under non-alien control B can say: ‘I can do x, y or z (or, indeed, x#).’ Under alien control, A has brought about a situation where B cannot say this. This idea of alien control illustrates how unfreedom can occur in the absence of interference. A can control B in an alien way without engaging in interference, in two different ways: by invigilation and by intimidation. Where A invigilates B's choice range of x, y and z, that choice range shifts to x-provided-A-allows-it, y-provided-A-allows-it and z-provided-A-allows-it. In other words, where A has the capacity to invigilate, insofar as he is not legally checked from doing so, the probability of B's choosing a course that is to A's taste is increased. Instead of B rightly being in a position to declare: ‘I can do x, y or z’, he is now in a position where he can only rightly declare: ‘I can do any of x-provided-A-allows-it, y-provided-A-allows-it and z-provided-A-allows-it.’ He will ‘fawn and toady’, self-ingratiate or self-censor in order to maximise the likelihood that he can do x, y or z. Similarly in the case of intimidation on A's part. That is, even in the absence of a power of invigilation on A's part, he may intimidate B into believing that he (A) has such a power; B's choice range shifts to x-provided-A-allows it, and so on. In this way, Bentham's ‘interference-alone’ theory of freedom is demonstrably false. Not only can interference cause unfreedom; so too can domination (without interference).

As well as an ‘interference-alone’ thesis, Bentham has an ‘interference-always’ thesis: all interference causes unfreedom. It is clear by now that republicans reject this view. Rather, on the republican approach, non-arbitrary laws, or laws that have been forced to track the interests of those subject to them, do not cause unfreedom. Could A's control over B's range of choice be considered as cum permissu of B; or according to the permission of B? In answering this question, Pettit invites us to think of Ulysses and the Sirens, where Ulysses, knowing in advance the irresistible temptation of the Sirens, commands his sailors to keep him bound as the ship passes the island. So, if the sailors are A, and Ulysses is B, certainly A controls B's choice to x, y or z inasmuch as A (the sailors) is preventing B (Ulysses) from choosing x, y or z at the particular time of passing the island of the Sirens. But this is manifestly non-alien control inasmuch as B controls the control. A is imposing B's own will on B. The interference of non-arbitrary laws in the lives of citizens equates to the interference of the sailors over Ulysses. On this metaphor, the state is not the master of the citizen, but rather the servant – as any free state will be on republican lights. Things will flow on the people's terms; not on the terms of any arbitrary power-wielder.

111 Skinner, above n 100.

112 This school of thought fails to draw any distinction between laws introduced by a tyrant, and laws introduced at the behest of the citizens, so far as freedom is concerned.

113 Pettit, above n 100, pp 113–114.

114 Ibid, p 148.

115 Ibid, p 82.

116 Above n 100, p 18.

117 On the difference between republican and liberal ideas of freedom, as well as the contrast between ancient and modern conceptions, see Constant, B ‘De la liberté des anciens comparée à celle des modernes’ in Constant, B Ecrits Politiques (Paris: Gallimard/Folio, 1997) pp 591–619 Google Scholar. See also Costa, V ‘Rawls on liberty and domination’ (2009) 15 Res Publica 397 CrossRefGoogle Scholar; Laden, A ‘Republican moments in political liberalism’ (2006) 237 Revue Internationale de Philosophie 341 Google Scholar.

118 See generally Hazareesingh, S Political Traditions in Modern France (Oxford: Oxford University Press, 1994)Google Scholar.

119 Pettit, above n 106, p 27.

120 Daly, above n 9.

121 Pettit, above n 100, p 116.

122 Ibid, p 55.

123 See Quinn, above n 95.

124 For a similar argument see Hickey, above n 12.

125 Mawhinney's survey confirmed the widespread requirement of adducing evidence of religious affiliation. Mawhinney, above n 13 and n 16.

126 See Pettit, above n 106, p 8: ‘Invigilation without interference represents a form of control because it makes it more probable, absent defiance, that B will choose according to A's taste or judgment.’

127 Mawhinney, above n 16; Alvey, D Irish Education: the Case for Secular Reform (Belfast: Church and State Books, 1991)Google Scholar.

128 Pettit, above n 106, p 9.

129 Ibid.

130 Pettit, above n 100, p 134.

131 Ibid, pp 52–54.

132 Again, see Mawhinney, above n 16.

133 See Education Code, Art L 442–445.

134 Pettit, above n 106, p 27.

135 Pettit, above n 100.

136 Ibid.

137 This is described by Rawls as the attempt to recognise the ‘fair value’ of religious liberty, through the ‘devotion of social resources’ to the ‘worth’ of religious liberty. Rawls, J Justice as Fairness: a Restatement (Cambridge: Harvard University Press, 2001) pp 150–151 Google Scholar.

138 Pettit, above n 100, p 56.

139 Ibid.

140 Ibid.

141 Rawls, above n 98, p 181.

142 Ibid, pp 113–114.

143 See generally Greenawalt, K Religion and the Constitution: Establishment and Fairness (Princeton: Princeton University Press, 2008)CrossRefGoogle Scholar.

144 A further important preoccupation, from the neo-republican perspective – aside from whether schooling is provided in a ‘common’ or in a denominational school as such – is whether the skills and dispositions of citizenship (which include those required to promote freedom as non-domination amongst citizens) are inculcated amongst child-citizens to an adequate extent. It is safe to assert that these skills and dispositions will include, for example, a minimal commitment amongst citizens to the political institutions that are required for a shared enjoyment of freedom as non-domination, so long as those institutions are un-dominating; an awareness of the fact that the political community consists of people holding different but equally valid religious and non-religious beliefs, as well as of people from different ethnic and cultural backgrounds; a non-factional approach to social and political life, which will involve the capacity to engage in political argumentation and deliberation in ways that abstract away from naked self-interest; a capacity amongst citizens to identify where others enjoy dominating control and a capacity to contest that control; a general distaste for domination and arbitrary control, which will involve a distaste for excessive economic or political clout; and broad understandings amongst citizens of their shared fate and their political, environmental and economic interdependence (ie despite often profound differences between them). In promoting these skills and dispositions it is important, of course, that the state does not ‘overstep the mark’ in the sense of imposing too ‘thick’ or ‘comprehensive’ a conception of the good on child-citizens, such that in its efforts to promote freedom as non-domination, it ends up causing domination of citizens and groups whose reasonable ethical perspectives are undermined or damaged.

145 See generally Daly, E ‘Restrictions on religious dress in French republican thought: returning the secularist justification to a rights-based rationale’ (2009) 31 Dublin University Law Journal 151 Google Scholar.

146 This reasoning applies only to discrimination on grounds of religious belief, rather than other grounds such as gender or sexuality, which are not the subject of this discussion or within the scope of this paper.

147 For an analysis of this conundrum in the US context, see Bagni, B ‘Discrimination in the name of the Lord: a critical evaluation of discrimination by religious organisations’ (1979) 79 Colum L Rev 1514 CrossRefGoogle Scholar at 1543.

148 Rawls, above n 137, p 93.