Constitutional - Freedom Of Religion

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Freedom of Religion - Background

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- Given the importance of religion in Irish society – particularly during the course of the twentieth century – it is unsurprising that the whole of Article 44 is devoted to it.

- It is also unsurprising that Article 44 has generated not nearly as much legislation as its U.S. counterpart, the 1st Amendment, given the Irish people’s general deference to the Church until recent years.

- The question of Church and State (more a matter of politics than of law) was coloured by widespread deference to the Roman Catholic Church for much of the twentieth century, with the enactment of very little legislation of which the Church disapproved (one notable exception being the Licensing Act 1960, extending Sunday opening hours in pubs).

- The 1980s saw a decline in the political influence of the Church, however: the passage of the Family Planning (Amendment) Act 1985 and the large vote against the anti-abortion referendum in 1983 being examples.

- The phenomenon of deference to the church is now changing dramatically, as younger generations are more varied in their beliefs, with ever-increasing numbers believing in no deity at all.

- Nonetheless, Article 44 has survived.

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Article 44.1

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State acknowledgement of the public worship due to God; general respect and honour for religion.


- Casey points out that Art. 44.1 echoes the Preamble, in its invocation of the Almighty God.

- The unusally distinctive religious note struck by both these sections is explicable in terms of history and sociology.

- However, their precise legal nature – the obligation they impose on the State – has never been explored.

- Cases have alluded to the significance of Art. 44.1:
Quinn's Supermarket Ltd. -v- AG (1972), Norris -v- AG (1984), Conway -v- Independent Newspapers (1999)

- NB: Casey points out that religion is generally perceived as a private matter in Ireland – unlike in the U.S. where much case law deals with religion’s public guise. However, Casey feels that, were such cases taken here (e.g. against the showing of the Angelus on public television), they would likely be rejected on the basis of Art. 44.1.

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Article 44.2.1

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“Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”


- The meaning of this part of Art. 44.2.1 has been little explored.

- It did, however, receive consideration from Walsh J. in McGee -v- AG (1974)

Public Order and Morality Restriction

- Article 9 of the ECHR guarantees freedom of thought, conscience and religion without qualification, and permits restrictions only in relation to freedom of expression of religious belief.

- By contrast, Art. 44.2.1 contains a qualification for all manifestiations of religious belief: conscience, practice and profession.

- The constitutional validity on restrictions of freedom of religion have been tested in People (DPP) -v- Draper (1988) and Murphy -v- IRTC (1998)

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Article 44.2.2

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The undertaking not to endow any religion.

Campaign to Separate Church and State v. Minister for Education (1998)

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Article 44.2.3

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The prohibition on imposing disabilities or from discriminating on religious grounds.

“The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.”


- Finally, Casey wonders whether the fact that Art. 44.2.3 opens with the words “The State” means that it has no bearing on private discrimination.

- Despite the decision in the 1942 case of Schlegel v. Corcoran and Gross (where an openly anti-semitic decision made by a landlady was upheld as “reasonable”, Art. 44.2.3 having no bearing on private affairs), Casey argues that the case would be decided differently today: the reasoning might be that the State does not only act through the legislature and the executive, but also through the judiciary, which may not ratify acts of discrimination by private parties.

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Article 44.2.4

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State aid for schools must be religiously neutral; children have the right to attend state-aided schools without necessarily attending religious instruction.

“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.”

- Until 1971, the Rules of National Schools adhered to the guarantee in the second half of this provision, segregating periods of religious instruction from others, and enabling children to opt out of them.

- The introduction in 1971 of the integrated curriculum, however, posed a problem, as it encouraged the integration of religious and secular instruction, making opting out of the fomer impossible.

- The Constitution Review Group Report points out this conflict, between the right of the child to opt out while attending publicly-funded denominational schools and the right of the school to provide for the fullness of integrated denominational education.

- The Group did not, however, favour amendment of Art. 44.2.4; instead, it saw the provision as an exception to the prohibition on endowment, and found that, to enjoy such endowment from the State, a denominational school must simply be willing to accept students who do not practice the relevant denomination, and to provide separate secular and religious instruction.

- Casey reads into this that the Group supports a reversion to the old, non-integrated curriculum. This has not yet occurred.

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Article 44.2.5

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The guarantee of the autonomy of religious denominations.

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Article 44.2.6

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The guarantee that a religion’s property shall not be diverted save for necessary works of public utility and on payment of compensation.


“The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.”

- “It is a curious, and in some ways inapt, provision”.
- Casey points out that Article 44.2.6 gives rise to various questions, none of which has yet been resolved by the Courts:

What is meant by “property of any religious denomination”?

- The problem here is that property is often held by the denomination in trust for a parish, a diocese, or for educational or charitable purposes.
- A literal reading of Article 44.2.6 would subject such property to diversion by the State, which Casey considers absurd.
- Thus he proposes that the real meaning is “property which, directly or indirectly, comes under the aegis of a religious denomination”.

What is meant by “diverted”?

- “Diverted” was the word used in the Government of Ireland Act 1920, and is a historical remnant; the Irish equivalent (“a bhaint díobh”) clarifies that diverted means taken, and not simply redirected.
- Is property diverted by means of rates levied against buildings? Currently, places of worship are exempt from such rates, but other religious buildings and educational buildings (e.g. Maynooth College) are not exempt. Casey reckons that the latter diversion of property (i.e. taking of money) is valid, since property being “diverted” suggests that only immovable property is being referred to, thus rates are constitutionally valid.
- CRG recommends “compulsorily acquired” to clear up the mess.

What is meant by “necessary works of public utility”?

- Hogan & Whyte point out that Article 8 of the 1922 Constitution is helpful here, as it specifies “roads, railways, lighting, water or drainage …”, suggesting that the Government could not rely on this wording to justify taking property for some grander function.

What is meant by “educational institution”?

- Given the devotion of the entirety of Art. 42 to education, it is strange that this phrase appears here.
- A literal interpretation leads Art. 44.2.6 to apply to all educational institution.
- A contextual interpretation, however, makes one think that the phrase may in fact mean “religious educational institution”.
- Casey, however, points out that the constitutional impact of either approach is minimal.

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Provisions deleted by means of the Fifth Amendment

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- Until 1972, the Constitution also contained recognition of specific sects (e.g. Church of Ireland; Methodism; Judaism) and the “special position” of the Catholic Church, which was then contained in Art. 44.1.2.

- These provisions caused some unease, particularly the old Art. 44.1.2 – although in Quinn’s Supermarket, the SC held that the “special position” held no legal significance.

- They were deleted by means of the fifth amendment to the Constitution in 1972.

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People (DPP) v. Draper (1988)

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Facts:

A man was convicted on two counts of malicious damage to religious statues.

In his appeal, he explained that his motivation was his belief that God had sent him (i.e. a reliance on freedom to practice religion).

Decision (CCA):

1) McCarthy J. said that the Court was not questioning the sincerity of the man’s beliefs.

2) However, the guarantee of free practice of religion was expressly subject to public morality and order.

3) This was a case where the latter was relevant: damage to citizens’ property constituted an attack on public order, which the law deemed to be subject to an offence.

4) The appeal was thus rejected.

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Murphy v. IRTC (1998)

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Facts:

The plaintiff argued that the ban on the broadcasting of religious advertisements contained in s. 10(3) of the Radio and Television Act 1988 breached his right to freely profess his religion in Art. 44.2.1.

The plaintiff argued that s. 10(3) of the Radio and Television Act 1988 breached his rights under Art. 44.2.3.

Decision (SC):

1) Accepted that the ban in s. 10(3) did place limitations on the religious rights of the applicant.

2) However, applying the proportionality test from Heaney, the Court found that the attack on the plaintiff’s constitutional rights was proportionate.

3) In coming to this conclusion, the Court speculated as to the objective being served by the ban:

(a) The prevention of resentment and unrest that might result from the broadcasting of potentially divisive material;

(b) The prevention of the rich buying access to the airwaves at the expense of the poor.

4) Finally, the Court suggested that the Oireachtas might have enacted a less far-reaching ban to achieve the same aims, this was a matter for the Oireachtas and not the Courts.

5) Hogan & Whyte criticise the decision inasmuch as the Court failed to show how either of the objectives to be achieved by the ban was anything other than hypothetical; they question whether the right balance was achieved between the plaintiff’s rights and the interests of the common good.

6) NB: the plaintiff subsequently took a case to Strasbourg under Art. 10 (FoE), where he was also unsuccessful, this time on the grounds that member states have a wide margin when regulating on potentially offensive material in the sphere of morals and religion. The ECHR also pointed out that the ban applied only to audio-visual means of advertising, and pointed to the other media options available to Murphy.

7) per Barrington J.:
(a) s. 10(3) does not discriminate or distinguish on the grounds of religious profession, belief or status.
(b) The ban is directed at material of a particular class and not at people who profess a particular religion.
(c) All people in the same position are treated equally.
(d) The fact that people wishing to advertise cars or beans may be treated differently is irrelevant.

8) Went on to examine Art. 44.2.1, and apply the proportionality doctrine (cf. Topic 8.C.iii.)

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Quinns’ Supermarket v. AG (1972)

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Facts:

A Ministerial Order of 1948 (made pursuant to the Shops (Hours of Closing) Act 1938) provided that Kosher butchers’ shops were totally exempted from the restrictions in the Order.

The plaintiff company had defied the order and was facing prosecution.

The plaintiff argued that the Order violated Art. 44.2.3 (prohibition on religious discrimination) in that a Jewish butcher in the same situation would not be facing prosecution.

Decision (SC):

1) Walsh J. pointed out the firm conviction of the Constitution that we are a religious people.

2) “Art. 44.1 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 acknowledgement to members of the Christian faith.”

3) Walsh J. observed that the case uncovered a conflict between Art. 44.2.1 and Art. 44.2.3., in that, if the (prima facie unconstitutional) discrimination were eliminated, the freedom of Jewish butchers to practice their religion would be interefered with, contrary to Art. 44.2.1.

4) Walsh J. held that the solution to the conflict lay in a reference to the overall purpose of Art. 44.

5) He found the overall purpose of the Article to be the free practice of religion; thus, it would be contrary to the spirit even of Art. 44.2.3 to use it as a vehicle to restrict the free practice of religion.

6) NB: The crucial ratio here is that the “overall purpose” of Art. 44 is the free practice of religion.

7) Walsh J. held that Art. 44.2.3 means “that the State shall not make any “distinction” on the grounds of religious profession, belief or statuts. The is confirmed by the Irish text which says ‘ná aon idirdealu da dhéanamh…’ To discriminate in that sense is to create a difference between persons or bodies or to distinguish between them on the ground of religious profession, belief or status.”

8) Casey maintains that this approach means that both benign and adverse discrimination are prohibited by 44.2.3.

9) Limiting the impact of Art. 44.2.3, the SC emphasised that free practice is the dominant theme of Article 44, and a “distinction” necessary to support this dominant theme will be constitutionally valid.

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Norris v. AG (1984)

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Decision (SC):

1) O’Higgins C.J. pointed out that the Constitution which the people adopted was “consistent with [Christian] conviction and faith and with Christian beliefs”, as a counter-argument to the arguments put forward by the applicant that criminalisation of male homosexual activity was repugnant to the Constitution.

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Corway v. Independent Newspapers (1999)

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Decision (SC):

1) Barrington J. described Art. 44.1 as a “significant addition” to the constitutional provisions on religion, noting that it went further than the guarantee of free profession and practice by placing a duty on the State to respect and honour religion as such.

2) Supporting the view that blasphemy law in Ireland could not be restricted to Christianity, Barrington J. pointed out that “the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment … was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion”.

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McGee v. AG (1974)

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Decision (SC) Walsh J:

1) Separated out social conscience and religious conscience: Art. 44.2.1 deals only with the later.

2) The meaning of the subsection is “that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned and … is free to profess and practice the religion of his choice in accordance with his conscience”.

3) “Correlatively, he is free to have no religious beliefs or to abstain from the practice of any religion”
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4) Despite the failure of his colleagues to comment on this issue, their lack of contradiction suggests that this approach would garner widespread judicial approval (per Casey).

5) Constitution must be interpreted in light of changing social conditions

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Establishment of a Church

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- Although there is no explicit provision in Art. 44 prohibiting the establishment of a church (i.e. the designation of one church as a national institution), and although it would be theoretically possible not to endow any church but to establish one (e.g. Church of England in the UK), the Supreme Court has held that Art. 44 implicitly prohibits the establishment of a church.

- Keane J., in Campaign to Separate Church and State v. Minister for Education (1998), held: “it is obvious that any such law would be impossible to reconcile with the prohibition of religious discrimination in Article 44.2.3”.

- Barrington J., in Corway v. Independent Newspapers Ltd (1999) stated that it was difficult to see how the common law crime of blasphemy – whose rationale was the protection of the established church – had survived the enactment of the 1937 Constitution, which precluded the State from imposing disabilities or making any discrimination on the ground of religion

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Blasphemy

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- Barrington J., in Corway v. Independent Newspapers Ltd (1999) stated that it was difficult to see how the common law crime of blasphemy – whose rationale was the protection of the established church – had survived the enactment of the 1937 Constitution, which precluded the State from imposing disabilities or making any discrimination on the ground of religion

Supporting the view that blasphemy law in Ireland could not be restricted to Christianity, Barrington J. pointed out that “the Jewish religion would also appear to be protected as it seems quite clear that the purpose of the fifth amendment … was certainly not to weaken the position of the Jewish congregations in Ireland but to bring out the universal nature of the constitutional guarantees of freedom of religion”.

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The Meaning of Endowment

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- In the Campaign case, Keane J. clarified the meaning of Art. 44.2.2.; it is “intended to render unlawful the vesting of propery or income in a religion as such in perpetual or quasi-perpetual form.”

- The Court further held that this also renders unlawful concurrent endowment (e.g. the Belgian model, where priests and ministers incomes are paid out of public funds, or the German model where a portion of a church member’s income tax is given to his denomination.)

- NB: the words in italics in the dictum of Keane J. are important – the prohibition applies only where the money is for exclusively religious purposes; Art. 44.2.2 does not preclude the State, for example from providing public funds for the running of hospitals, some of which are run by a single church.

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Public Funds for Education

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- The primary and secondary education systems in Ireland are mainly denominational in character.

- Do State subventions in this sector amount to an unconstitutional “endowment”?

- Casey points out the less clear-cut issue of teacher training colleges, four of which are run by religious denominations, and which are heavily funded by the State. These may raise similar 44.2.2-based objections but to not enjoy the same protection as schools under 44.2.4, because they are not “schools”. Article 42.4’s permission to supplement private educational initiative may provide the get-out clause, but the problem here is that 42.4 has no religious overtones. Casey seems to believe that, unless the State funds all third level education (thus avoiding challenge under 44.2.3) it is violating Art. 44.2.4.

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Campaign to Separate Church and State v. Minister for Education (1998)

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Facts:

The plaintiff organisation claimed that the State’s funding of the salaries of chaplains in denominationally-based second-level community schools violated Art. 44.2.2.

Decision (HC):

1) Costello P. held that Art. 44.2.2 was not violated.

Decision (CCA):

1) Upheld the decision of Costello P.

2) Per Barrington J.: the framers of the Constitution were no strangers to denominational education – in Art. 44.2.4, they even ensured that the State would provide money in a non-discriminatory manner to schools of various denominations. This surely means that funding denominational religion is not precluded within the same Article by a different section.

HELD: scheme was constitutional.

Barrington J:

(i)Framers of constitution did not intend payment of monies to such schools to be an endowment of religions (see Art 44.2.4)
(ii)Child has right not to attend religious instruction at the school

Keane J: focused on historical aspect of Art 42.2, its purpose was to quell the fear that the religion of the majority would be endowed in preference to others

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Mulloy v. Minister for Education (1975)

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Facts:

Regulations made by the Minister allowed Irish teachers who had spent time teaching in certain developing countries could count that service for the purpose of salary increments and pension calculation.

However, this applied only to lay teachers.

Because Father Mulloy was otherwise qualified under scheme, he could not avail of this.

He claimed that his exclusion from the benefits violated Art. 44.2.3.

Decision (SC):

1) Held that the scheme made a distinction on the grounds of religious status by enabling a person who was not working for a denomination to obtain greater financial reward for equal work.

2) The Quinn’s proviso did not apply here: the distinction was not necessary to protect Art. 44.2.1.

3) Walsh J. did hold that there may be instances where a distinction between ministers of religion and lay people. He did not, however, provide examples. Casey suggests sacterdotal privilege and automatic exempion from jury duty.

4) The Court also cleared up certain definitions: “profession” refers to the specific religious belief professed by the individual; “status” refers to their rank within a denomination; “belief” can refer to belief and non-belief. Casey argues that this provides sweeping scope for invalidity on the ground religious discrimination under Art. 44.2.3.

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Section 37(1) of the Employment Equality Act 1998

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- The Employment Equality Act 1998 generally prohibits discrimination by employers on grounds of religion; it is generally unlawful for an employer to (a) refuse to employ, (b) dismiss, or (c) refuse promotion to a person on the basis of his religion.

- Section 37(1), however, creates an exception, which is inspired by the principle of religious autonomy found in Art. 44.2.5. It exempts religious, education and medical institutions from the obligation not to discriminate where

(a) they favour somebody on the ground of religion where it is reasonble to do so to maintain the religious ethos of the institution;

(b) they take action which is reaonably necessary to maintain this ethos.

- This subsection was upheld has valid by the Supreme Court in an Article 26 reference.

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Re Article 26 and the Employment Equality Bill 1996

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Decision (SC):

1) Drawing on the Quinn’s Supermarket doctrine, the Court held that such discrimination was valid only in so far as it guaranteed the free practice and profession of religion.

2) Without explicitly referring to the autonomy principle in Art. 44.2.5, the Court clearly felt that the free practice and profession of religion embrace also this principle.

3) It was argued by assigned Counsel that the use of the word “ethos” effectively gave each denomination the right to define its own rules for discrimination subjectively; the Court responded that, while the State respects the differences between religions, the final decision on what it “reasonable” rests with the Courts.

4) Casey is critical of s. 37(1), explaining that it gives employers in religious institutions a power to discriminate on grounds not open to any other employers – despite the fact that these institutions are State-funded!

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McNally & Anor. -v- Ireland & Ors. (2010)

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Facts:

The plaintiff sought to challenge the validity of s. 99 of the Charities Act 2009. S. 99 rendered it an offence to sell Mass cards which were not the subject of an arrangement made with a bishop or order of priests of the Roman Catholic Church and the offence attracted penalties (pursuant to s. 20 thereof) of €300,000 and ten years imprisonment. The plaintiff ran a major enterprise which engaged in the business of distribution and sale of Mass cards, unsigned and pre-signed. The plaintiff alleged that s. 99 was inter alia valid on three grounds, namely on competition grounds, on product grounds and constitutional grounds. He asserted that it was unconstitutionally vague and disproportionate in breach of Article 38 and in violation of the terms of Article 44, infringing freedom of religious practice. The plaintiff contended in particular that s. 99 interfered with the plaintiff's free profession and practice of religion as guaranteed in Article 44.2.1. The plaintiff also argued that a Mass card was an industrially manufactured product for the purposes of Directive 98/34/ EC and Directive 98/48/EC. The issue arose as to whether there was unjustifiable preferential discrimination pursuant to Article 44.2.3 and whether the plaintiff had locus standi for the claims advanced or whether he was invoking jus tertii. The plaintiff also contended that s. 99 reversed the onus of proof, was unjustifiably vague and arbitrary and attracted a disproportionate penalty, in breach of Article 38 of the Constitution.

Held by MacMenamin J.:

that this was a secular issue of public order albeit having a religious aspect. The claims as to Articles 81, 82 and 86 EC failed and would be dismissed. As to the product claim, the directives dealt with product specification, i.e. the thing sold and not the person selling it. The Directives invoked were not relevant to the immediate facts. The provisions of s. 99 were quite distinct and was not a technical regulation governing the marketing of Mass cards but those who would market them. The sub-clauses of Article 44 had to be interpreted harmoniously. The US jurisprudence was not relevant to the Irish context, as it was possible for the State to justifiably lend its weight to the support of one denomination. The claim of the plaintiff as to Article 44.2.1 could not succeed as he lacked locus standi to invoke jus tertii. There was no evidence of negative discrimination pursuant to Article 44.2.3 and the plaintiff and his business were not a religious denomination, group or sect. Positive discrimination was possible but was not prejudicial where the status of a priest or organized religion was advanced justifiably over a lay person or business. The claims as to Article 38 failed in so far as reasonably consumers could be deluded easily by misrepresentations and bogus Mass cards and so the onus of proof was important in that the information necessary for a prosecution would be peculiarly within the knowledge of an accused. The section was not unconstitutionally vague and the penalty, while large, was appropriate as a sanction against the reprehensible operation of a bogus charity.

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Temple Street Hospital -v- D (2011)

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Facts:

In the early hours of the morning in December 2010, the Court had made an order sanctioning the administration of a blood transfusion to a three month old baby who was ill and urgently required a blood transfusion. An order was made pursuant to s. 27 Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication or broadcast of any matter likely to identify the baby. The Court later delivered a written judgment. AB was born in September 2010 and his twin sister did not survive birth. His parents, as committed Jehovah's Witnesses, were opposed to a blood transfusion but had consented to the use of certain blood products. S. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 purported to provide powers to limit the identification of parties concerning medical conditions where identification might result in undue stress. The issue arose as to whether a literal or other interpretation of this clause was appropriate as Baby AB was not conscious. The Court considered how to balance the right to life, protected pursuant to Article 40.3. and freedom of religion, as well as family autonomy.

Held by Hogan J. that the Court would grant a declaration that it would be lawful in these circumstances to administer a blood transfusion in the case of AB. A purposive approach to 27 of the Act of 2008 was mandated pursuant to s. 5 Interpretation Act 2005. The Court had jurisdiction to override religious objections where adherence to beliefs would threaten the life and general welfare of the child. The declaration was limited to the clinical events and was not to be construed as conferring an open-ended entitlement to administer such treatment irrespective of the wishes and beliefs of the parents.

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McGrath v Maynooth College

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The State may justifiably lend its weight to what may be thought to be disabilities and discriminations to comply with spirit and purpose of the Constitution.

Guarantee of ‘no-discrimination’ applies only as against the State

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M v An Bord Uchtala

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S.12(1) Adoption Act 1952, which prohibited couples of mixed religion from adopted, held constitutionally offensive

Adoption Act 1952 imposed both an unconstitutional disability and discrimination (no attempt made to distinguish)

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Imposing Disabilities

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Art 44.2.3: also prohibits imposition of disabilities on basis of religion

Quinns Supermarket: plaintiff clearly suffered disability insofar as was ‘legally disqualified from, and deprived of the power to carry on the business of selling meat after the hours set out in the statutory instrument’

M v An Bord Uchtala: S.12(1) Adoption Act 1952 imposed both an unconstitutional disability and discrimination (no attempt made to distinguish)