#17457 - Constitutional Rights Freedom Of Religion - Constitutional Rights

FREEDOM OF RELIGION Constitutional rights guarantee in general: 1) 2) 3) 4) 5) 6) Religion and education Religion generally Recognition Freedom of conscience Free profession and practice of religion Non-discrimination against religion or practice. RELIGION AS A NATION? • The pre-amble of our constitution is there to reflect principles, higher/natural law/ values, and acknowledges 'all our obligations to our Divine Lord, Jesus Christ' • Historically it was a document which was written to specifically acknowledge one religion - DeValera - this is obvious. • Evidence? > importantly > - Art.44.1.2 before amended - the 'State recognises the special position of the Holy Catholic Apostolic & Roman Church….professed by the great majority of the citizens' - This is now deleted by the fifth amendment • Art.44.1.3 also recognises other religions, named and unnamed however Catholicism explicitly given special position. • Despite this, before amended, case law shows that the law doesn't acknowledge the special position or roman catholics. Quinn's Supermarket ltd v AG 1923 Order made by third defendant pursuant to power vested by an act said that a meat shop was restricted to open on weekdays only between 8am-6pm or till 6:60pm on a Saturday. It was not unlawful to keep a meat shop open for trade on Sundays. A certain meat shop which sold only Kosher meat - Jewish religious custom opened for a short period on Sundays and kosher meat shops were exempt by the order from the restrictions that applied to ordinary meat shops. Challenged the it was a violation of article 40.1 & 40.2.3. SC dismissed appeal by D's and said order was invalid for a) discrimination against articles mentioned b) ultra vires the act. Walsh J - 'A firm conviction that we are a religious people' acknowledged At the same time: - Art.44.1 'did not prefer one to the other or confer any privilege or impose any disability or diminution of states upon any religious denomination, & it not permit the State to do so' Case also established that - 44.1 & 2.1 was not confined to Christians and Jews - 40.1 only applies to human persons as they are explicitly named. Interestingly, there was conflict between the principle to not discriminate, and the free practice of religion. Free practice means that the jewish meat shop should be open but this is also discrimination. Judge looked to the pre-amble and decided that - Discrimination, if 'positive' is actually permitted by the constitution to allow free practice of religion - Groups are allowed have exemptions to assist this right even if the rituals are of disadvantage to others No indication to what the limit is? This means that people are exempt from civil law on the basis of their religion… even to the apparent disadvantage or deprivation of others?? That is a big statement… how far would this extend? Exemption struck down as it went further than necessary in the interest of business - it applied to every single day - If it was only on Sat. it would be fine for the free practice of their religion but it was too extensive. Temple St. Hospital v D & Anor - Art 44.2.1 protects all minority religions and denominations ..'whose tenets are regarded by many as unconventional' McGee v Ireland case Walsh J: He has already acknowledged that we are a religious people but makes sure to make it clear that this statement is not confined to one religion > while we are religious, - 'We also live in a pluralist society' Court - can't include evidence from diff. religious viewpoints to help with constitutional interpretation FREEDOM OF CONSCIENCE - art 44.2.1 guarantees right to freedom of conscience subject to public order & morality. - No person shall be compelled to act contrary to their conscience in the religious text McGee v Ireland Woman ordered contraceptives from UK which were seized by customs. She challenged this saying that it was an infringement of her right to freedom of conscience. - the context of conscience deals w/ religion only If a person feels free or obliged to do something or pursue some activity which is not a religious practice, it's not protected by 44.2.1. Walsh J rejected argument that social conscience falls within the protection of art.44.2.1. - can't rely on freedom of conscience for your own private welfare Order struck down on other grounds to do with family rights. This is what distinguished McGee from Quinn's supermarket.