The state must protect the constitutional right to not attend religious instruction in schools

The Department of Education interferes in the Constitutional rights of parents through the NCCA second level Religious Education course. This course seeks to develop values in students to enable them to see the relevance of religion to their lives and relationships.

When parents seek to exercise their Constitutional right for their children not attend NCCA Religious Education, they are informed that the course is intended for students from all religions and those with no religion. Parents are also informed that the NCCA Religious Education course is not religious instruction but religious education, as it does not provide instruction in any particular religious or faith tradition and therefore the need to withdraw does not arise (Circular letter 0062/2018 – Dept of Education 2018).

Most Admissions policies of schools reflect this Circular Letter with various made up views on Constitutional rights. You can read about different Admission Policies in our recently updated Report which you can find here

 It is the duty of the State not schools,  to protect the right to not attend religious instruction

Minister Norma Foley said in the Dail in June 2022:

“The manner in which any school ensures that the right to opt out of religion classes is upheld is a matter for the school concerned.”

Article 44.2.4 (the right to not attend) puts a duty on the State, not on schools. Section 30-2(e) of the Education Act 1998 also clearly states that this is the responsibility of the Minister not schools. The right to not attend religious instruction is not the affair of schools, because the Constitution and the Education Act state that it is the responsibility of the state.

In the Department of Education Circular Letters 0013/0062/2018 to ETB schools, the Department gives guidelines on the right to not attend religious instruction under Article 44.2.4 and Section 30-2(e) of the Education Act 1998 (Circular letter 0013/2018). Circular Letters are the Department of Education  ‘administering’, Constitutional and legal rights.

The Minister knows she is responsible for the Constitutional rights of parents and students in all schools in relation to not attending religious instruction. The Minister ignores her Constitutional and legal duty to ‘administer’ the right in accordance with the text of the Constitution and the findings of the Supreme Court.

The Constitutional rights of parents and their children

The rights of parents are derived from the text and structure of the Constitution, and upheld by the Supreme Court. The Oireachtas has legislated for them, but the Department of Education has failed to administer these inalienable rights and instead is undermining them.

The right to not attend religious instruction is protected by Article 44.2.4 of the Constitution. The right of parents in relation to the religious and moral education of their children is protected by Article 42.1 of the Constitution. The Supreme court has found that under Article 42.1 the state has a duty not to interfere in the right of parents in relation to the religious and moral education of their children. Parents can provide ‘this education’, religious and moral, at home or in schools recognised or funded by the State (Article 42.2).

Claiming that NCCA Religious Education is not religious instruction, and therefore there is no need to withdraw, is just made up by the Department of Education and the NCCA. Most schools just follow that. There is simply no legal or Constitutional basis to that claim, notwithstanding the fact that the Dept of Education claims that this understanding flows from Article 44.2.4 of the Constitution and Section 30-2(e) of the Education Act 1998.

According to the Supreme Court, it is not up to the Department of Education and the NCCA to decide what is suitable religious or moral education for children. It is the Constitutional right of parents to decide that. Under Article 42.1, it is the duty of the state to respect this right and not to interfere in it. Informing parents that the NCCA Religious Education course is intended for all religions and those with no religion cannot take away the Constitutional right of parents under Article 42.1, or the duty of the state not to interfere in that right.

The State has absolutely no right to decide what is or is not suitable religious and moral education for children (Art 42.1) and then claim that the right to withdraw does not arise (Art 44.2.4) as it is not instruction in line with the requirements of a particular religion.

Supreme Court and the Constitutional right of parents

The Supreme Court said that under Article 42.1 (religious education) of the Constitution, the state could not interfere in the rights of parents. Under Article 42.1, the state is obliged to respect the rights of parents to provide for the religious and moral education of their children. Parents have a right to provide this education in their homes or in schools recognised or funded by the State (Article 42.2).

The Supreme Court has also said that Article 42 harmonises with Article 41 (the authority of the family) (Burke case, Supreme Court).  Article 42.4 obliges the state to have due regard when funding schools for the rights of parents in relation to the religious and moral formation of their children.

The Supreme Court has linked Article 42.4 to Article 41 (the authority of the family). The Supreme Court said, in the Campaign case in 1998, that Article 42.1 must be read in the context of Article 44.2.4, which is the right to not attend religious instruction.

The Department of Education recognises that parents have rights under Article 42.1 and leaves it up to each individual school to respect that right. The do this while claiming that Religious education is intended for all students and therefore withdrawal from the subject does not arise.

If parents object on conscientious grounds to the NCCA Religious Education course (Article 42.1), it is their right under Article 44.2.4 of the Constitution to ensure their children do not attend. That State is constitutionally obliged to respect parents’ rights in this regard, not to interfere, and to provide at the very least supervision or another subject.

In the Burke v Minister for Education case this year the Supreme Court found that:-

“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.”

“…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 of 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.”(Charleton – Burke case)

Claiming that the NCCA Religious Education course is suitable for all students, and is not religious instruction, is undermining a foundational pillar of the Constitution. The Department of Education, the NCCA, Schools and teachers are interfering in the Constitutional rights of parents by undermining the authority of the family and their Constitutional rights.

The Minister, the NCCA, Patron bodies, schools and teachers have no right to decide for parents what is or is not suitable religious and moral education for their children. Parents have a right to provide religious and moral  education at home, while sending their children to publicly funded schools and exercising their Constitutional right for their children to not attend any type of religious instruction/teaching (teagasc creidimh). It is the Constitutional duty of the State to protect the rights of parents and not to interfere in them.

Atheist Ireland will continue to campaign for the Constitutional rights of all families.