Words in the constitution matter, like not attend religious instruction

The recent referendums have shown that words in the constitution matter. The Supreme Court has found that children have a Constitutional right to not attend any course in religious instruction. The Supreme Court also said that this right is based on the conscience of parents.

Despite the fact that the right to not attend religious instruction in publicly funded schools is written into the text and structure of the Constitution, there is no practical application given to it on the ground. Students are left sitting in the religion class and no supervision is provided by schools.

Article 44.2.4 states:

“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.”

The purpose of Article 44.2.4 was to protect the rights of minorities in the education system. The Constitution attempts to balance the rights of all parents and their children.

Religious instruction is uniquely treated in the Constitution

A look at Article 44.2.4 will tell you that not attending religious instruction is a condition of state aid to schools. There is probably not a Board of Management in any publicly funded school that is aware of this and gives it practical application on the ground.

No other subject is treated in this manner by the Constitution. This right is the responsibility of the Oireachtas and it is the duty of the Minister for Education to ‘administer’ this right.

When parents contact the Department of Education about the failure of a school to supervise their children outside the religious instruction class, they are told that it is up to each individual school to administer the right.

The Department of Education has delegated its duty to ‘administer’ a Constitutional right to the Boards of Management of schools. There are no statutory guidelines in place and School Inspectors are not legally obliged to ensure that the right to not attend religious instruction is given practical application on the ground.

Reasons given for refusal to administer the right

Over the years Atheist Ireland has sought reasons for the failure of the Oireachtas to take responsibility for this Constitution right and for the failure of the Department of Education to ‘administer’ this right.

The only reason given by the Department of Education for their refusal to administer this Constitution right is that ‘a one size all policy does not suit everyone’.

The basis for this reasoning seems to be that some parents want their children to ‘opt out’ or ‘not participate’ in religious instruction. That is not the same thing as the Constitutional right under Article 44.2.4 to not attend’ religious instruction.

How students opt out or don’t participate in religious instruction is a policy decision of the Department of Education as this is not the same thing as not attending religious instruction which is a Constitutional right.

We appreciate that many people use the term ‘opt out’ when referring to the Constitutional right under Article 44.2.4. However, as we found out in the recent Referendums and the O’Meara case on pensions at the Supreme Court, the definition of words in the Constitution matters and the fact of the matter is that Article 44.2.4 refers to not attending religious instruction.

It is also a fact that this right is the responsibility of the Oireachtas as Article Article 44.2.4 starts with the word “Legislation”. Only the Oireachtas can put in place Legislation. This means that the right cannot be redefined or amended by policy decisions of the Department of Education.

Because some parents don’t want to exercise their Constitutional right under Article 44.2.4 for their child to not attend religious instruction, the Department of Education delegates the ‘administrating’ of the Constitutional right to not attend religious instruction to the Boards of Managements of schools.

That fact that schools ignore the right and leave children sitting in the religious instruction class is ignored by the Department of Education.

Article 44.2.4 of the Consitution

To repeat, Article 44.2.4 of the Constitution states:

“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.”

The Irish version of the Constitution takes precedence and it is clear that not attending means not being present at religious teaching.

The following translation is 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 44.2.4 (right to not attend religious instruction when funding schools)

  • ‘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’.

In 1998 the Supreme Court said that:

“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.”

(Justice Barrington – Campaign to Separate Church and state case in 1998).

In a recent case at the Supreme Court Justice Hogan said about Article 44.2.4.

“The subject matter of Article 42.3.1° is, in any event, linked to Article 44.2.4°. This latter provision provides that legislation providing State aid for schools shall not “affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.” (Emphasis supplied). Both provisions provide protections for parents in order to ensure that their own personal feelings of conscience and preferences in respect of the education of their children cannot be overridden by State compulsion.”

(Supreme Court – O’Meara v Minister for Social Protection 2024)

The Supreme Court said that:

“It is not within the competence of the Government, or indeed of the Oireachtas, to free themselves from the restraints of the Constitution or to transfer their powers to other bodies unless expressly empowered so to do by the Constitution. They are both creatures of the Constitution and are not empowered to act free from the restraints of the Constitution”

(Crotty v An Taoiseach 1986)

Conclusion

The recent referendums have shown that words in the constitution matter.

There is a Constitutional right for students to not attend any course in religious teaching that is against the conscience of their parents. Schools are obliged to supervise students outside the religion class, as this is a condition of state aid to the school. This is the responsibility of the Oireachtas, and the duty of the Department of Education is to administer this right.

There is also a good legal argument that students should get another subject if they exercise the right to not attend religious instruction.

Atheist Irish will continue to campaign for the Constitutional right of minorities in the education system to not attend religious instruction in publicly funded schools.

 

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