The right to opt out of religion classes is not enough to respect parents’ convictions

The right to Opt out of Religion in Irish Schools is not enough to ensure respect for the philosophical convictions of Atheist and Secular parents. In Ireland, Atheist and secular parents are second class citizens.  Church and state are pursuing an aim of indoctrination, by not respecting and protecting the philosophical convictions of Atheist and secular parents in the education system.

Positive obligation to respect philosophical convictions 

Church and State continue to undermine the Constitutional and Human Rights of Atheist and Secular parents, by failing to recognise the positive obligation to respect their philosophical convictions. Atheist and Secular parents have exactly the same rights as religious parents in relation to the education of their children.  The right to freedom of religion and belief includes those parents that have philosophical convictions. Atheism and Secularism are regarded as philosophical convictions, worthy of respect in a democratic society.

The European Court and the United Nations both recognise the positive obligation on the state to respect the right of atheist and secular parents, to ensure that the teaching of their children is in conformity with their convictions. This right to respect is an absolute right, not to be balanced against the rights of others, or one that can be gradually achieved. Our education system is structured to regard this right as a negative right (an opt out right) and fails to recognise that there is also a positive obligation to respect the right of atheist and secular parents to ensure that the teaching of their children is in conformity with their convictions.

This right to respect cannot be overridden by the alleged necessity of striking a balance between the conflicting views involved, but that is exactly what is happening in our education system. Our education system is structured in a manner which means the practical application of our Constitutional and human rights are ignored. Despite the positive obligation on the state to respect the inalienable rights of parents, the State has absolved itself of that responsibility and delegated it to private bodies such as the Catholic Church who are the patron of the vast majority of schools in the country.

Lautsi case

In the Lautsi v Italy case at the European Court has stated that:

“58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect ‘in a democratic society’”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education (ibid.).”

Despite the findings of the European Court, and the fact that the courts in Ireland have never elevated the rights of parents with a religious conviction over those parents with philosophical convictions, the state continues to disregard their positive obligation to respect the philosophical convictions of Atheist and Secular Parents.

State Religious Education Course

An example of this is the State Religious Education course at second level. One of the main aims of this course is to contribute to the moral and spiritual development of students through religious education.  The non-religious interpretation of life is merely acknowledged in passing, alongside materialism and fundamentalism, in a section of the course called ‘Challenges to faith’.

The state curriculum at second level seeks to contribute to the moral and spiritual development of the children of atheist/secular parents through religious education. This is not a neutral and objective stance, and does not constitute ‘respect’ for the rights of Atheist and Secular parents under the Constitution or Human Rights law. That is pursuing an aim of indoctrination by not respecting parents’ convictions.

Catholic Church

The Catholic Church also continues to regard the rights of Atheist and Secular parents as only a negative right, i.e. the right to opt out. This fits in with their mission, as they can to continue to proselytise and coerce minorities while still claiming they respect their rights. How does a Catholic ethos respect and promote respect for the philosophical convictions of Atheist and Secular parents? A Catholic ethos does the exact opposite. Its purpose is to evangelise and indoctrinate. The Catholic understanding of religious freedom is incompatible with human rights law. The Catholic Church continues to regard the rights of Atheist and Secular parents as a negative right, and refuses to take on board the case law at the European Court that states the exact opposite.

The Irish State ‘provides for’ the education of the children of Atheist and Secular parents in publicly funded schools with a Catholic ethos. The State has failed to ensure that the philosophical convictions of Atheist and Secular parents are respected and protected in publicly funded schools where parents have no choice but to send their children.

The Equality Legislation and the Education Act 1998 does not define ethos or ‘Characteristic spirit’. The terms religious instruction, religious education, belief nurturing etc are not legally defined. Despite the controversy over religion in schools, there are no Guidelines statutory or otherwise, of what is permitted in relation to religion in schools in order to protect the Constitutional and Human Rights of all parents and their children. The State is aware that parents are complaining that their Constitutional and Human Rights are being ignored, and the State will not put in place any Guidelines to ensure that their rights are protected and guaranteed.

There are Constitutional conditions to the State funding denominational schools. The Constitution envisaged that minorities would attend schools under religious denominations. Schools with a religious ethos were never intended to be established just for the religious majority in a particular area. The State has chosen to discharge its duty to ‘provide for’ the education of minorities in publicly funded denominational schools, but it cannot expect minorities to leave their Constitutional and Human Rights at the school gate.

Article 44.2.4 – Irish Constitution 

“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.”

The Catholic Bishops see publicly funded schools with a vibrant religious ethos as serving the needs and wishes of only Catholic parents. The educational philosophy of the Catholic Church in relation to education is incompatible with pluralism. It fails to respect the inalienable rights of all parents and their children who are legally obliged to send their children to these schools.

From the Submission of the Catholic Bishops to the NCCA.

“Catholic schools serve the needs and wishes of parents in this regard and, in seeking to uphold the legal right of schools to a vibrant religious ethos, are acting out of respect for and in order to protect, as a matter of legal and ethical principle, the rights and interests of parents in respect of their children’s education.”

“These approaches require teachers to adopt and promote a pluralist approach to religion. This is an approach to religion that goes against the philosophical basis of Catholic religious education. Such a contradiction would place teachers in a very difficult position where conflicting philosophical approaches to religious education would have the potential to create significant confusion.”

European Court

The European Court has said that the state cannot absolve itself of its responsibilities under the European Convention by delegating those responsibilities to private bodies and institutions. The State did not get away with absolving itself of responsibility to protect in the Louise O’Keeffe case at the European Court. There is no reason to believe that it can stand over any claim that it is not obliged to ensure and promote respect in schools where it is ‘providing for’ the education of the children of Atheist and Secular parents.

In the O’Keeffe case, the European Court Stated that:

“124. Education was a national obligation (McEneaney and Crowley, cited above), as it was in any advanced democracy. Article 42 of the Constitution was permissive so that the State could have and should have chosen to provide education itself. Even if the State outsourced that obligation to non-State entities, the National School model could and should have accommodated greater child protection regulations. One way or the other, a State could not avoid its Convention protective obligations by delegating primary education to a private entity (Costello-Roberts v. the United Kingdom). Finally, the State could not absolve itself by saying that the applicant had other educational options which, in any event, she had not.”

“179.  Since the Court considers that the applicant was entitled to a remedy establishing any liability of the State, the proposed civil remedies against other individuals and non-State actors must be regarded as ineffective in the present case, regardless of their chances of success (the Patron and Manager) and regardless of the recoverability of the damages awarded (civil action against LH). Equally the conviction of LH also relied upon by the Government, while central to the procedural guarantees of Article 3, was not an effective remedy for the applicant within the meaning of Article 13 of the Convention.”

Conclusion

In Ireland, Church and State continue to undermine the rights of Atheist and Secular parents, by disregarding their positive obligation under the Constitution and Human Rights law to respect and protect their right to ensure that the education of their children is in conformity with their convictions.

Atheist Ireland will continue to highlight this issue, and to lobby for a state-funded secular education system that respects equally the religious and nonreligious beliefs of all children, parents and teachers.