Parents have a Constitutional right to decide the religious and moral education of their children

The recent Burke v Minister for Education case at the Supreme Court has upheld the constitutional rights of parents in relation to the religious and moral education and formation of their children.

The Supreme Court referred particularly to the provision in Article 42.4 of the Constitution which obliges the state to have due regard for the rights of parents especially in the matter of religious and moral formation.

The court said that this provision reflects a concern for upholding parental authority; a foundational pillar of the Constitution that accords with Article 41 recognising the family as “the natural primary and fundamental unit group of’ Irish Society.

Church and State have for years refused to recognise that atheist, humanist and secular families have the exact same rights as religious families under the Constitution.

State ignores the rights of non religious parents

The Department of Education, various patron bodies, the NCCA decide for non religious parents what is or is not suitable religious and moral education and formation for their children.

For example the Religious Education course at second level seeks to develop values in students to enable them to see the relevance of religion to their lives. Many parents object on conscience grounds to this course.

Despite this the Department of Education, the various patron bodies, the NCCA, and even the TUI claim that it is suitable religious and moral education for students from from all backgrounds.

But they have absolutely no right to decide this for parents. None of these groups are mentioned in Article 41 or Article 42 of the Constitution. The right belongs to parents, not any of these groups.

It is not up to the Department of Education to decide this for parents and the Supreme Court has again made this quite clear.

In the Campaign to Separate Church and State case in 1998 the Supreme Court outlined the rights of all parents in relation to the religious and moral education and formation of their children. The Department of Education just ignored the Supreme Court in 1998 and the court has again upheld the rights of parents in the Burke case at the Supreme Court.

In addition the Supreme Court has said that Article 42.1 and Article 42.2 must be read in the context of Article 44.2.4 which gives parents the right to ensure that their children do not attend any religious instruction.

If the Supreme Court has linked the rights of parents under Article 42.1 and Article 42.2 with the right to ‘not attend’ religious instruction why does the Department of Education claim that the constitutional right to not attend religious instruction is confined to not attending religious instruction according to the rites of a particular religion?

Their view on this issue clearly undermines the constitutional right of parents in relation to the education of their children and is not in accordance with the findings of the Supreme Court.

Parents have a right to ensure their children do not attend any religion class

Parents have a constitutional right to ensure that their children do not attend any type of religous instruction. The right to not attend religious instruction is a condition of State funding and consequently students have a right to supervision outside the classroom and there is a good legal argument for getting another subject.

The Department of Education is clearly ignoring the findings of the Supreme Court and consequently breaching the rights of non religious parents in relation to the religious and moral education and formation of their children.

The Supreme Court in the Burke case stated that:

4. It is clear that a right inures to the family under Article 42.1 of the Constitution to be the “primary and natural educator of the child” and the State is required “to respect the inalienable right and duty of parents to provide … for the religious and moral, intellectual, physical and social education of their children.” Hence, under Article 42.2, the mother and father of Elijah Burke and Naomi Power were “free to provide this education in their homes or in private schools or in schools recognised or established by the State.”

But, while under Article 42.3 the State may require, “as guardian of the common good”, that “children receive a certain minimum education, moral, intellectual and social” (physical is not mentioned, and the minimum standard required is currently set at school leaver-standard for a 16 year old), the State cannot “oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.”

Article 42.4, in requiring the State to provide for “free primary education”, also places an endeavour, but only that, before the State “to supplement and give reasonable aid to private and corporate educational initiative” and “when the public good requires it” towards “other educational facilities or institutions”.

An overall saver in the constitutional text is that the State, in providing for free primary education and in endeavouring to assist post-primary education in various forms, have “due regard … for the rights of parents, especially in the matter of religious and moral formation.” This provision reflects a concern for upholding parental authority; a foundational pillar of the Constitution that accords with Article 41 recognising the family as “the natural primary and fundamental unit group of” Irish society. Hence, society is built around the family.

Justice Barrington in the Campaign case at the Supreme Court stated that:

“These references appear to me to establish two facts. First the Constitution does not contemplate that the payment of monies to a denominational school for educational purposes is an “endowment” of religion within the meaning of Article 44 S.2 s.s.2 of the Constitution. Secondly, the Constitution contemplated that if a school was in receipt of public funds any child, no matter what his religion, would be entitled to attend it. But such a child was to have the right not to attend any course of religious instruction at the school.” (page 24)

“But the matter does not end there. Article 42 of the Constitution acknowledges that the primary and natural educator of the child is the family and guarantees to respect the inalienable right and duty of the parents of provide for the religious and moral, intellectual, physical and social education of their children. Article 42 S.2 prescribes that the parents shall be free to provide “this education” (i.e religious moral intellectual physical and social education) in their homes or in private schools or “in schools recognized or established by the State”. In other words the Constitution contemplates children receiving religious education in schools recognized or established by the State but in accordance with the wishes of the parents.(page 25)

It is in this context that one must read Article 44 S.2s.s.4 which prescribes that: ….”

Atheist Ireland is campaigning for the constitutional and human rights of parents and we will continue to hold the Department of Education accountable for refusing to comply with the Supreme Court.