ETBs again try to redefine religious instruction to undermine right to not attend

In an article in the Irish Times today the ETBs have again claimed that the right to not attend religious instruction under Article 44.2.4 of the Irish Constitution is confined to not attend religious instruction according to the rites of one religion.

There is no legal basis for this opinion. It is not based on any case law and as far as we are aware it has just been made up. They have never given any legal basis for this opinion and we have never read any legal opinion that claimed this.

The General Secretary of the ETBI in the Irish Times stated that:

“The framework states that ETB schools will not offer religious instruction or faith formation for a particular religion during the school day. Instead schools will offer the State curriculum on religious education in which students learn about a range of different religions and beliefs.”

Article 44.2.4 of the Constitution states that:

“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.”

There are two Legal Opinions that are contrary to the views of the ETBs. Atheist Ireland got one from James Kane and the second was written by Dr Conor O’Mahony (Constitutional Project) at UCC in 2015.

They both make clear that a course does not cease to be religious instruction simply because it is about more than one religion, and that principle applies equally to the State NCCA curriculum.

Legal Opinion that Atheist Ireland obtained from James Kane

The Legal Opinion that Atheist Ireland obtained from James Kane who specialises in education law says that Article 44.2.4 is not confined to the instruction in accordance with the rites on one religion teachings of one religion. It states:

“The suggestion that religious teaching is religious instruction only when that teaching relates to one religion arises above and also as the Department appears to be of the view that religious instruction arises (thereby triggering an opt out right).

For a number of reasons, it is my view that an argument that a course is not religious instruction by dint of the fact that the course refers to more than one specific religion is not necessarily correct.

First, Article 44.2.4° simply refers to “religious instruction.” Accordingly, if a course is religious instruction, the right is engaged. Article 44.2.4° says nothing whatsoever about religious instruction relating to one religion only. No such qualification is found within Article 44.2.4°. In the context of a family of an atheist perspective, it appears that it would be impermissible to refuse an opt out by arguing that the course in question relates to more than one religion. If one takes an extreme example whereby a publicly funded school offered a course which relentlessly pressed theistic beliefs and sought expressly to reject atheist views with the aim to convert atheist students to persons of theistic beliefs, it is almost certain in my view that such a course would engage the opt out right. The fact that such a course related to multiple theistic religions would not remove the right to opt out.

Second, there is no great difference in principle between a person of one faith who wishes to opt out of religious instruction in another particular faith and a person of no faith who wishes to opt out of religious instruction in a number of faiths. It would appear to me that drawing a distinction between these persons would fly in the face of the freedom of conscience which is expressly protected by Article 44.2.1° and which extends to protect persons of no belief. Further, it is inconsistent with the prohibition on discrimination on the grounds of religious profession, belief or status, protected under Article 44.2.3°. As the Constitution is generally to be construed in a manner which does not place constitutional articles on a collision course with each other , it appears to me to be incorrect to interpret Article 44.2.4° as confined to an opt out from teaching relating to one religion only. The sole question is whether the course is religious instruction in substance.

In my view, it is at least probable, if not likely, that any course which through its cumulative impression has the effect of invalidating atheist perspectives through promoting theistic views, comprises religious instruction to which an opt out must be available. This applies in my view whether the teaching in question relates to one religion only or more than one.”

Legal Opinion from Dr. Conor O’Mahony

In addition, Dr. Conor O’Mahoney is the author of Educational Rights in Irish Law, and his research interests lie broadly in the area of constitutional and child law. He has said in an article on rights under the Irish Constitution and European Court:

“Nonetheless, the view taken by the Supreme Court in the passage quoted above suggests that this distinction is irrelevant. The right to opt-out applies to the formal timetabled period of “religious instruction”, and would seem to capture whatever form that instruction might take. Thus, while the distinction between “religious instruction” and the overall school ethos or “religious education” is often pointed to as undermining the right to opt-out in a primary school context, it might ironically serve to strengthen it in a secondary school setting.”

“As noted above, Article 44.2.4° appears stronger than the ECHR in giving a seemingly absolute right to opt-out of religious instruction, regardless of the character of that instruction. Moreover, it specifically uses the phrase “without attending religious instruction”. The use of the word “attending” (as opposed to “participating in”, or something similar) could reasonably form the basis of an argument that anything short of leaving the room fails to vindicate the right to opt-out.”

The ETBs are actively undermining the Constitutional rights of parents by trying to redefine the Constitutional right to not attend religious instruction. They are not the alternative to denominational schools. They are part of the problem.