Schools must respect parents’ right to the ‘Religious and Moral Formation’ of their children

‘Faith formation’ in our schools is the basis for a lot of discussion by people and organisations on both sides of the debate.  Some argue for ‘faith formation’ to stay in schools and others argue that ‘faith formation’  should be removed from the school day.

The term ‘faith formation’ is not part of our Constitution. A look at the Constitutional Articles on education does not involve ‘faith formation’ either as a condition of funding schools or as a parental right.

The Constitution does refer to ‘religious and moral formation’. This Constitutional reference (Article 42.4) to ‘religious and moral formation’ is far more nuanced than ‘faith formation’ which is the term that is consistently used.

Religious and Moral formation

Article 42.4 of the Constitution states that:

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

‘Moral formation’ can be a part of ‘religious formation’ but it also stands on its own as a condition of the State funding of schools (Article 42.4). The state is obliged to take due regard of the rights of parents in relation to the ‘moral formation’ of their children. This is a condition of the state funding of schools.

The Supreme Court in the recent Burke case referred to Article 42.4 and the rights of parents in relation to the ‘religious and moral formation’ of their children as a foundational pillar of the Constitution.

A foundational pillar of the Constitution and a condition of state funding is that the State is obliged to have due regard to the rights of all parents in relation to the ‘religious and moral formation’ of their children.

This is the Constitutional condition of state funding. It is not the same thing as ‘faith formation’. It is far more nuanced than that. Given Article 42.4 the state cannot teach moral values through religious education if that is against the conscience of parents.

Irish language version of Article 42.4

ní foláir don stát socrú a dhéanamh chun bunoideachas a bheith ar fáil in aisce, agus iarracht a dhéanamh chun cabhrú go réasúnta agus chun cur le tionscnamh oideachais idir phríobháideach agus chumannta agus, nuair is riachtanas chun leasa an phobail é, áiseanna nó fundúireachtaí eile oideachais a chur ar fáil, ag féachaint go cuí, áfach, do chearta tuistí, go mór mór maidir le múnlú na haigne i gcúrsaí creidimh is moráltachta.

The Irish version of the Constitution takes legal precedence over the english version. Article 42.4 of the Irish version translates directly into ‘as regards the formation of the mind in religious and moral affairs‘.

That is a far more nuanced obligation on the State than any made up obligation in relation to ‘faith formation’. It puts a constraint on the State with regard to the rights of parents in relation to the formation of the minds of their children in religious and moral affairs.

The State must have due regard to the rights of parents in relation to the ‘formation of the mind in religious and moral affairs’ in all publicly funded schools. It is an obligation that successive Ministers for Education have ignored.

Administering Constitutional Rights

The recent Burke case at the Supreme Court upheld the rights of parents. It stated that:

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.”

The Department of Education is constitutionally obliged to administer  right of parents in relation to the formation of the minds of their children with regard to religious and moral affairs. The finding of the Supreme Court in the recent Burke case clearly puts this obligation to administer constitutional rights on the Minister for Education’s desk. It is not the legal affair of the Patron body or school to administer Constitutional rights according to their own ethos, nor can the Minister absolve herself of this constitutional responsibility.

This is what the Supreme Court stated in the Burke case in relation to administrating Constitutional rights:

“10… Administration assumes that there is already in existence a principle and that all the administrator has to do is to establish the facts and circumstances and then to apply the principle. It is of the essence of good administration that the principle must be fairly clear and precise so that, in any given situation, the result should be the same, whether it is administrator A or administrator B who has taken the decision. For, in its purest form, administration requires only a knowledge of the pre-existing principle and an appreciation of the facts to which it is being applied; it is an intellectual process involving little discretion. By contrast, policy-making is largely discretionary; the policy-maker must decide, as between two alternatives, the one which he or she considers best in the interest of the community…[taking into] account all of the relevant factors and which factors are relevant is, to a considerable extent, left to him or her.”

It is the obligation of the Minister to ensure that her Department administers Constitutional rights. The Constitutional rights of all parents in  publicly funded schools do not take a back seat to the ethos of Patron bodies.

There is no balancing of rights here, because the rights of parents with regard to the religious and moral formation of their children is a condition of the funding of the school. Under Article 42.4 the State need only endeavour to supplement and give reasonable aid to private and corporate educational initiative.

Atheist Ireland is campaigning for the Constitutional rights of parents. We will continue to hold the state resposible for undermining a foundational pillar of the Constitution.