How our courts define parents’ rights, and religious education, formation, and instruction

The Department of Education, the NCCA, Patron bodies, schools and teachers define the terms religious education, religious formation and religious instruction according to their own views on the meaning of these terms. Their definitions are not based on case law at the Supreme Court and actually undermines the Constitutional rights of parents and their children.

In addition Article 42.4 obliges the State when funding schools to have due regard for the rights of parents, especially with regard to religious and moral formation.

What are the Constitutional rights of parents outside of religious and moral formation? The Supreme Court has given direction in this regard. They have also defined parental rights under Article 41, 42.4, Art 42.1, Art 42.2 and Article 44.2.4.

With this article we want to bring clarity to those rights, duties, and powers in relation to religious education, religious formation and religious instruction as well as parental rights in our publicly funded education system.

The Irish version of the Constitution takes legal precedence. The Supreme Court in the recent Burke case referred to the Irish version of the Constitution in relation to Article 42.1 – the inalienable right of parents in relation to the religious and moral education of their children.

The various Articles in the Constitution are under the various findings of the High Court and Supreme Court alongside the Irish translation and you can find them below.

High Court and Supreme Court judgements on the rights of parents and their children.

Supreme Court – Burke v Minister for Education case – J O’Donnell

“73 ….It is, in any event, part of the right and duty of parents to provide (and therefore the right of their children to receive) education under Article 42.1, which right the State has guaranteed to respect.

The Irish text of Article 42.1 provides an important flavour in this regard:- “… ráthaíonn [An Stát] gan cur isteach ar cheart doshannta ná ar dhualgas doshannta tuistí chun oideachas … a chur ar fáil dá gclainn” which conveys the sense that the State cannot interfere with (cur isteach ar) the right of parents subject to the Constitution to provide education under Article 42.1, a right which Article 42.2 contemplates may take place at home.”

Supreme Court – Burke v Minister for Education case – J Charleton

“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 Keane in the Supreme Court 1998 – Campaign case said that:

“It must also be borne in mind that, at the time the Constitution was enacted, the vast majoirty of secondary schools in this country were under the control and management of religious denominations.

The functions of those religious who were members of the staffs of such schools extended beyond the imparting of religious instruction: they were also manifestly concerned, as are the chaplains in the present case, with ensuring that the children under their care conformed to the practices of the particular religion to which they belonged, whether through attendance at mass or other religious services or in other respects.”

“It was not intended to render unlawful, at a stroke, the system of aid to denominational education, including where appropriate the payment of salaries of members of religious communities, whose duties might well extend beyond religious instruction in the narrow sense to what in Article 42.4 of the constitution was referred to as the “religious and moral formation” of children.”(page 15)

“…I would entirely agree with his conclusion that, in any event, they are constitutionally sanctioned, having regard to the recognition in Article 42.4 of the rights of parents in relation to the religious and moral formation of their children.” (pages 18,19)

Justice Barrington in the Campaign case at the Supreme Court in 1998 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:-….”

“The Constitution therefore distinguishes between religious “education” and religious “instruction” – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school but the Constitution cannot protect him from being influenced, to some degree, by the religious “ethos” of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”(page 26)

“In Community schools it is no longer practicable to combine religious and academic education in the way that a religious order might have done in the past. Nevertheless parents have the same right to have religious education provided in the school which their children attend. They are not obliged to settle merely for religious “instruction”. The role of the Chaplain is to help to provide this extra dimension to the religious education of the children….”(page 27)

“It therefore appears to me that the present system whereby the salaries of Chaplains in Community schools are paid by the State is merely a manifestation, under modern conditions, of principles which are recognized and approved by Article 44 and 42 of the Constitution.”(page 27)

“Secondly while it is obviously right and proper that a Chaplain should counsel and advise any child who may consult him about its problems it would be constitutionally impermissible for a Chaplain to instruct a child in a religion other than its own without the knowledge and consent of its parents.”(page 28)

In the High court in the Campaign case in 1996 Justice Costello stated that:

“I have underlined the words “religious and moral formation” to draw attention to the fact that this Article recognises that parents have rights not only to provide for the religious education of their children (sub-paragraph (1) but also rights in the matter of their religious formation (sub-paragraph (4) and that it specifically enjoins the State when providing educational facilities to have regard to both these distinct rights.

The difference between the ordinary meaning of these two concepts is not difficult to identify; broadly speaking, the religious education of a child is concerned with the teaching of religious doctrine, apologetics, religious history and comparative religions, whilst the religious formation of a child involves familiarising the child not just with religious doctrine but with religious practice (by attendance at religious services) and developing the child’s spiritual and religious life by prayer and bible reading and I think the Constitution should be construed so as to reflect this meaning.

In the case of parents who profess the Catholic faith the religious formation of their children involves ensuring that their children attend Mass and that they pray and receive the sacraments on a regular basis……”(page 39, 40)

“Turning to the issue in this case, it is clear that one of the important reasons hy chaplains as well as teachers of religion are appointed to the staff of Community Schools is for the purpose of assisting the religious formation of the children attending the school (assistance which, inter alia, is given by the celebration of Mass in the school).

In effect, the State by paying the salaries of chaplains is having regard to the rights of parents vis-a-vis the religious formation of their children and enabling them to exercise their constitutionally recognised rights”.

Articles in the Constitution

The Irish translations are from ‘Bunreacht na hÉireann: a study of the Irish text’, written by Micheál Ó Cearúil and published in 1999 by All Party Oireachtas Committee on the Constitution.

Article 41.1.1 states that:-

The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2. The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

• ‘All positive law’ is expressed as ‘aon reacht daonna’ or ‘any human statute/law’
• ‘Indispensable’ is expressed as ‘éigeantach’, usually translated as ‘compulsory’.
• ‘To protect’ is expressed as ‘a chaomhnú’, ‘to cherish’/‘to preserve’.

Article 42.1 states that:

The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

• The word ‘educator’ is expressed as ‘múinteoir’, which means ‘teacher’.
• ‘To respect’ is expressed as ‘gan cur isteach ar’ (‘not to interfere with’).
• The phrase ‘the religious and moral (etc) education of their children’ appears as ‘i gcúrsaí creidimh, moráltachta (etc)’ which means ‘in religious, moral (etc) affairs’.
• ‘Religious’ and ‘moral’ are separated by a comma, therefore explicitly treated as separate matters, in the Irish text.
• ‘Education’ appears as ‘Oideachas’. Dinneen’s entry under this headword includes ‘advice, instruction, teaching, education’. DIL translates ‘oidecht’ and ‘oides’ respectively as ‘teaching, training’ and ‘teaching, instruction’.

Article 42.4 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.

• ‘Endeavour’ is expressed as ‘iarracht a dhéanamh’, ‘make an effort’.
• ‘Corporate’ is expressed as ‘cumannta’, ‘communal’.
• ‘In the matter of religious and moral formation’ is expressed as ‘maidir le múnlú na haigne i gcúrsaí creidimh is moráltachta’ (‘as regards the formation of the mind in religious and moral affairs’)

Article 44.2.4 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.”

• ‘Legislation .. shall not discriminate’ is expressed as ‘ní cead’, or ‘it is not permitted to’.
•  ‘To affect prejudicially’ is expressed as ‘dhéanamh dochair do’, or ‘do harm to’.
• ‘Attend’ is expressed as ‘A fhreastal’. Ó Dónaill cites ‘an scoil a fhreastal, to attend school’ and ‘freastal ar léachtaí, to attend lectures’ as examples of ‘freastail’, ‘attend’, in the sense of ‘be present at’.
• ‘Religious Instruction’ is expressed as ‘Teagasc creidimh’. ‘Teagasc’ is translated as ‘teaching, instruction’ by Ó Dónaill, who cites ‘teagasc ábhair, teaching of a subject’.