Article 44 Religion - Irish Constitutional Law

Article 44 – Religion

Freedom of conscience and free practice and profession of religion

• McGee v Attorney General (SC)

  • Walsh J: Given that religious context in which the guarantee of the freedom of conscience appears, it means simply that no person shall directly or indirectly be coerced to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practice the religion of his choice in accordance with his conscience.

  • It does not guarantee the right to live in accordance with one's conscience subject to public order and morality – thus it does not protect a right to use contraception so long as one's conscience is at ease with this.

• Murphy v IRTC (SC)

  • Applicant challenged the constitutionality of a law which prevented him from broadcasting advertisements on television or radio.

  • Barrington J: the section is not an attack on the citizen's right to practice his religion as it does not discriminate between religions nor does it allow for ads which attack certain religions – rather it is a limitation of the citizen's right to practice his religion.

  • The right to profess one's religion extends to the right to convert one's fellow citizens and influence the evolution of society.

  • In this case the restriction is minimalist and justified – it prohibits the applicant only from advancing his views from paid advertisement on radio or television.

• People (DPP) v Draper (CCA)

  • The appellant was convicted on two counts of malicious damage to religious statues.

  • The acts were carried out by the applicant believing that he had been sent to God to do so.

  • Held that, the court was not questioning the sincerity of the appellants beliefs, but his freedom to practice his beliefs was expressly subject to public order and morality and the protection of other individual's private property was necessary to ensure the protection of the public order.

The principle of non-discrimination

• Quinn's Supermarket v Attorney General (SC)

  • A ministerial order exempted Kosher butchers from a ban on evening opening hours.

  • Walsh J: Article 44 does not require that individuals be discriminated against on the basis of their religion – the State is precluded from making any distinction on the basis of religious profession, belief or status.

  • In this case, the measure challenged is a discrimination as per Article 44.

  • However, in the absence of this measure, Jews would be unable to acquire Kosher meat between the hours of sunset Friday and sunset Saturday and this would be an interference with the free profession and practice of their religion.

  • This presents a conflict between the guarantees of free profession of and non-discrimination bases on religion.

  • Given that the Constitution reflects a firm conviction that we are a religious people (Preamble, Article 44.1) any measure which makes a discrimination on the basis of religion, but which is necessary to enable the free profession and practice of religion cannot be invalid having regard to the provisions of the Constitution – this is because the purpose of the non-discrimination guarantee is to facilitate the free profession of religion.

  • However this would not be the case where the religious precepts which the law seeks to make allowance for are not a binding part of the religion.

• Re Employment Equality Bill 1996 (SC)

  • Followed Quinn's Supermarket by holding constitutional an exemption from the general prohibition of discrimination on certain grounds for religious institutions (allowing them inter alia to provide more favourable treatment on one of those grounds)

  • This was decided on the basis of a proportionality test.

• McGrath v Trustees of Maynooth College (SC)

  • The plaintiffs were priests employed by Maynooth College who were dismissed from their posts after seeking laicisation and wearing non-clerical clothes.

  • O'Higgins CJ: Simply because the college received funding from the State did not subject it to the ban on religious discrimination.

  • In any case, the freedom of every religious denomination to manage its own affairs (Article 44.5) protected it from having to observe this principle.

  • Henchy J: The constitutional provision against discrimination must be interpreted in line with its purpose (i.e. to give vitality, independence and freedom to religion) – certain internal disabilities and discriminations arise from the tenets of particular religions and the State must on occasion recognise and buttress them.

  • The rules pursuant to which the applicants were in this case dismissed were not the responsibility of the State and are protected by Article 44.5

• Mulloy v Minister for Education (SC)

  • The provisions for increments paid to teachers according to the length of their service allowed teaching service abroad to be taken account of for lay teachers, but not clergy.

  • The plaintiff, a priest with teaching experience abroad, sought to have the regulations struck down.

  • Held that, the reference to religious status in Article 44.3 relates clearly to the position or rank of a person in terms of religion in relation to others of the same religion or of another religion or those of no religion.

  • Thus this is an unconstitutional discrimination on the basis of religious status.

• M v An Bord Uchtála (HC)

  • The Adoption Act 1952 provided that applicants for adoption should be of the same religion as the child and its parents or, in the case of an illegitimate child, its mother.

  • The second plaintiff was an Anglican who gave birth to an illegitimate, then married a man, not the child's father, who was a Roman Catholic.

  • They made an application for an adoption order and were refused and then sought to have the relevant sections of the Act struck down.

  • Held that, the Act was unconstitutional on its face and the plaintiffs had successfully rebutted the presumption of constitutionality.

The principle of non-endowment

• Campaign to Separate Church and State v Minister for Education (SC)

  • The Article of Management of Community Schools require the Board of Management to ensure that religious instruction is provided therein and employ a chaplain

  • The plaintiffs contended that the payment of the wages of chaplains by the State constituted an endowment of religion contrary to Article 44.2.2

  • Held that, the purpose of Article 44.2.2 was to render unlawful the vesting of property or income in the institution of a religion, not to prevent the payment of monies for educational purposes to a denominational school

  • The Constitution recognises both the existence of denominational schools (Article 44.2.4) and permits their funding (there being a restriction on discrimination between denominational schools of different religions, and where it would negatively affect the right of a child to opt out of religious instruction)

  • “The Constitution therefore distinguishes between religious "education" and religious"instruction" - the former being the much wider term.” A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion.

  • The concurrent endowment of multiple religions was unconstitutional.

• O'Shiel v Minister for Education (HC)

  • The plaintiffs were pupils at a Steiner school run and funded by their parents.

  • Following the refusal of the defendant to fund the school on the basis that it did not meet its requirements, the plaintiffs to have the ruling declared void.

  • Laffoy J: “In order to fulfil its constitutional obligation to provide for free primary education, in my view, the State must have regard to and must accommodate the expression of parental conscientious choice and lawful preference.”

  • “the State's constitutional obligation...must be based on arrangements which have a rational foundation and prescribe proper criteria for eligibility”

  • Teacher qualifications:

    • “It is undoubtedly proper for the Minister to prescribe standards...or deeming a person eligible for qualified status to teach in a recognised primary school

    • The evidence does lead to the conclusion that requiring teachers employed in Cooleenbridge School to conform to the prescribed standard as a pre-condition to recognition of the school would negative the plaintiff parents' lawful preference

    • If there is a reasonable solution available, it seems to me that the failure of the Minister to adopt it would constitute a breach of the plaintiffs' constitutional rights”

    • On the evidence, it is not possible to conclude that, as a matter of probability, there was or is a reasonable solution to the teacher qualification...