European Court says opting out of religion class must not place an undue burden on parents

Last week the European Court found that the exemption procedure from a Religion class in Greek schools placed an undue burden on parents with a risk of exposure of sensitive aspects of their private life.

The Court went on to say that the potential for conflict was likely to deter parents from making such a request, especially as they live in a small and religiously compact society.

The Greek parents were also deterred from seeking an exemption from the Religion class because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs.

This European Court judgment has implications for Irish schools.

Opt-Out in Irish Schools

For many years Atheist Ireland has contended that Irish parents are deterred from seeking exemptions from the various Religion classes because of the failure of the State to put in place practical procedures for the opt-out and to take responsibility for those procedures.

No other subject is offered if parents do manage to opt-out their children, their children lose school hours just because the Religion course is contrary to the conscience of their parents. In addition, schools are not legally obliged to supervise children who are opted-out.

The European Court said that State authorities did not have the right to intervene in the sphere of individual conscience and to ascertain individuals’ religious beliefs or oblige them to reveal their beliefs concerning spiritual matters.

Yet in Ireland the Minister of Education, Joe McHugh does this all the time by claiming that the NCCA Religion course is suitable for all religions and none. How does he know? How does he know the individual conscience of every parent in the country?

It is not up to the Minister, the NCCA, the TUI, or any Principal or Teacher, to make that decision for parents by claiming that a particular course is suitable for their children.

Indoctrination

The Religion course in Greek schools was mandatory but students could opt-out on the grounds of conscience. The ECHR stated that:

“83. The Court notes that, under Article 16 § 2 of the Constitution and the Education Act, the religious education course is mandatory for all students (see paragraphs 16-17 above). However, the circular of 23 January 2015 provides that non-Orthodox Christian students, that is to say students with different religious or doctrinal affiliation or non-religious students, who rely on grounds of religious conscience, may be exempted from attending the course. This exemption procedure was maintained in force by Article 25 § 3 of a decision of the Minister of Education dated 23 January 2018 (see paragraphs 29 and 31 above).”

The Greek authorities had claimed that the Religion course in their schools was not indoctrination. They stated that:

“63.  Likewise, there was no question of “proselytism” or “indoctrination” through the new religious education programme, despite the allegations of the applicants and the third parties to the contrary, nor had any, even possible, “stigmatisation” of the applicants been proved; besides, the applicants lived on the Central Aegean islands which had remarkable cultural activity and high influxes of tourists, and where residents of various ethnic, cultural and religious backgrounds coexisted harmoniously.

64. Since the religious education course was not optional and it was the State’s mission under the Constitution to develop the religious conscience of students that were Orthodox Christians, exemption from the course was necessarily associated with a lack of religious affiliation.”

The General aims of the course are:

1. To build a solid educational background in Christianity and Orthodoxy both as the cultural tradition of Greece and Europe and as a living source of inspiration, faith, morality and meaning …

2. To provide students, regardless of religious affiliation, with satisfactory knowledge of the nature and the role of the phenomenon of religion, both as a whole and in its various manifestations ..

Third-Party Interveners

The Greek Helsinki Monitor, which was a Third Party Intervener in the case, stated that a comparison between the Norwegian and Greek religious education curricula indicated that the Greek curriculum was much less objective, critical and pluralistic, and much more a form of indoctrination into the official State religion, as it admittedly had a “confessional” character. One of the main cases at the European Court in relation to religion courses is the Folgero v Norway case of 290607.

another Third-Party Intervener, ELIAMEP (Hellenic Foundation for European and Foreign Policy – Grassroots Mobilise Research Programme), emphasised that in the new religious education course Orthodoxy remained predominant in the teaching of religion. This was the case in terms of the time and space allotted to it in the course, and also in that students did not only learn about Orthodoxy but were taught it as the faith of the nation.

The National Secular Society, which was also a Third-Party Intervener, stated that the system for exemption from religious education classes operated by Greece appeared to be in conflict with key elements of the Court’s case-law.

Human Rights Standards

The European Court said that, “Where a Contracting State includes religious instruction in the curriculum for study, it is then necessary, in so far as possible, to avoid a situation where pupils face a conflict between the religious education given by the school and the religious or philosophical convictions of their parents.”

In Irish schools, many parents object of conscientious grounds to religion classes and the ethos of their children’s schools. There is no practical application given to the right to opt-out in Irish schools. The Minister for Education leaves it up to each school to decide how they operate the Constitutional Rights opt-out.

Under the European Convention, the State has a positive obligation to ensure the provision of an effective and accessible means of protecting the rights,  including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific steps (Osmanoglu and Kocabas v Switzerland 2017)

Conclusion

The European Court concluded that:

87. The Court considers that the current system of exemption of children from the religious education course is capable of placing an undue burden on parents with a risk of exposure of sensitive aspects of their private life and that the potential for conflict is likely to deter them from making such a request, especially if they live in a small and religiously compact society, as is the case with the islands of Sifnos and Milos, where the risk of stigmatisation is much higher than in big cities.

The applicant parents asserted that they were actually deterred from making such a request not only for fear of revealing that they were not Orthodox Christians in an environment in which the great majority of the population owe allegiance to one particular religion (see Grzelak v.Poland, no. 7710/02, § 95, 15 June 2010), but also because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs.”

There is no effective and accessible means of protecting the right of parents to ensure that the teaching of their children is in conformity with their convictions. There is no regulatory framework of adjudicatory and enforcement machinery protecting individuals’ rights and the implementation, where appropriate, of specific measures to protect them.