G.f. Whyte, the Frontiers of Religious Liberty: a Commonwealth Celebration of the 25th Anniversary of the U.n. Declaration on Religious Tolerance - Ireland

• Publication year: 2007

THE FRONTIERS OF RELIGIOUS LIBERTY: A COMMONWEALTH CELEBRATION OF THE 25TH ANNIVERSARY OF THE U.N. DECLARATION ON RELIGIOUS TOLERANCE - IRELAND

G.F. Whyte^*

INTRODUCTION

Long a bastion of traditional Roman Catholicism, modern Ireland has witnessed significant changes in religious affiliation and practice during the past quarter century. The hegemonic position of the Catholic Church is now a thing of the past. One has a sense of Ireland being at a crossroads. While the old consensus surrounding religious, moral, and social values is increasingly challenged by a more secular perspective, at the same time, the relatively significant growth in recent years of certain religious groups, such as Christian Evangelicals and Muslims, may offer renewed support to traditional views on the family and sexual morality.

The religious consensus for the first fifty years or so of the State's existence meant that issues of religious freedom did not often come before the courts and it still remains the case that litigation in this area is relatively rare. However, the past three decades have witnessed a number of cases, dealing with such questions as contraception, homosexuality, health care, and publicly funded education, in which the courts have had to consider issues of more than passing interest to religious communities.

In considering the foundations and frontiers of religious liberty in Ireland, this Article will begin by providing background information on religious affiliation in Ireland, the nature of the Irish constitutional order (in particular, as it relates to religion), and important texts in Irish law dealing with freedom of religion. It will then consider freedom of religion in Ireland, the principle of non-discrimination on grounds of religion, and the rights of the family in relation to religious and moral formation. Finally, it will conclude with some comments relating the Irish situation to the 1981 U.N. Declaration on the

Elimination of All Forms of Intolerance and of Discrimination Based on

Religion or Belief (1981 U.N. Declaration).¹

I. BACKGROUND INFORMATION

A. Religious Affiliation

The past quarter century has witnessed a pronounced decline in the influence of the Roman Catholic Church in Ireland. Two factors account for this. First, the emergence of the "Celtic Tiger" economy during the 1980s has encouraged unprecedented rates of immigration into Ireland, which has led to an increase in the number of religions present in Irish society and the number of persons professing religious beliefs. In the 1981 Census, Roman Catholics amounted to just over 93% of the population (3,204,476 out of 3,443,405), the Anglican, Methodist, and Presbyterian Churches combined constituted approximately 0.033% (115,411), while those professing no religion or not stating their religion accounted for 0.032% (110,548).²However, the official census figures for 2002 show that, despite an increase of 7.3% in the overall number of Catholics in Ireland since 1991, the proportion of Catholics in the population declined from 91.2% in 1991 (3,226,327 out of 3,525,719) to

88.4% in 2002 (3,462,606 out of 3,917,203).³Non-Catholic Christians now constitute 5% of the population (196,675),⁴of which the Orthodox are the fastest growing group,⁵while non-Christians now comprise 0.8% of the population (31,034).⁶Those who could be identified as not belonging to any religion total 5.6% of the population (219,466).⁷

The second factor contributing to the change in religious affiliation and practice has been the growing secularization of Irish society. This trend began in the 1960s when growing affluence resulted in improved contact with more secular societies through television and travel.⁸What began as a slow decline in religious practice among Roman Catholics accelerated during the 1990s, a phenomenon arguably triggered by a series of sexual scandals involving Catholic clergy. Thus, the European Values Survey of 1999 showed that more than a third of Catholics attended religious services about once a month or less, while more than 41% of respondents had little or no confidence in the Church.⁹

This fall off in religiosity is especially marked among young adults and shows no signs of abating.

While the Catholic Church wielded great political power in Ireland following Independence in 1922,¹⁰the increasing secularization of Irish society means that this is no longer the case. The past three and a half decades have witnessed the decriminalization of homosexuality and the liberalization of the law in relation to contraception, divorce, and, to a much lesser extent, abortion.¹¹The State is currently considering reform of the law to offer improved protection to non-marital households, including same-sex couples.¹²

Furthermore, in 2005 the government-appointed Commission on Assisted Human Reproduction called for, among other things, the legalization of surrogacy and various medical and scientific practices, including embryonic stem cell research, which would entail the deliberate destruction of in vitro embryos.¹³Thus, contemporary Ireland is rapidly becoming a post-Christian society. However, vestiges of Church power still remain, most notably in relation to the educational and health systems where schools and hospitals remain largely under denominational control.¹⁴With the growing secularization of Irish society, this religious control is increasingly subject to challenge.¹⁵

B. Nature of Irish Constitutional Order

Dating from 1937, the Irish Constitution is one of the oldest functioning constitutions in Europe.¹⁶Under the Constitution, the Irish State is a democracy¹⁷and its citizens¹⁸enjoy the protection of express and implied fundamental rights.¹⁹These rights are enjoyed not only as against the State, but also, where appropriate, as against private parties.²⁰The powers of government are broadly divided in accordance with the doctrine of separation of powers and an explicit power of judicial review of legislation is vested in the High and Supreme Courts.²¹

In describing the Irish constitutional order, one must also take account of the State's international obligations, in particular, with regard to the European Union and under the European Convention on Human Rights. Ireland has been a member of what is now referred to as the European Union since 1973 and Article 29.4.10 of the Constitution provides, inter alia, that the Constitution may not be invoked to invalidate any law enacted, acts done, or measures adopted by the State that are necessitated by the obligations of membership in the European Union. Ireland ratified the European Convention on Human Rights in 1953, recognizing at that time the right of individual petition, which allows individuals to bring proceedings against Ireland before the European Court of Human Rights. More recently, the European Convention on Human Rights Act of 2003 enables litigants to plead the provisions of the Convention before domestic Irish courts.²²

While the State is explicitly theistic²³and the Preamble to the Constitution is explicitly Christian in terminology and inspiration, there is no established Church in Ireland. The original version of the Constitution did acknowledge the special position of the Roman Catholic Church in Ireland,²⁴but went on to recognize a number of other Christian denominations, together with Jewish congregations²⁵and other religious denominations existing in Ireland at the promulgation of the Constitution.²⁶Far from conferring any special privileges on Roman Catholicism, the Supreme Court relied upon these clauses to support the view that the Constitution endorsed religious pluralism.²⁷

Finally, it is worth noting that in November 2006, the Taoiseach,²⁸Mr. Bertie Ahern, T.D., announced that arrangements for formal dialogue between the State and faith-based communities²⁹were in the process of being finalized. What is envisaged is an annual meeting with all participants in the dialogue in attendance, an annual bilateral meeting with each representative body at which the State side would be led by members of the Government and include senior officials from appropriate Departments, and an ongoing channel of communication at an official level.³⁰

C. Legal Texts Relating to Religious Freedoms

Religious freedom is addressed in a number of different legal texts in the

Irish legal order.

1. The Constitution

A number of constitutional provisions are relevant to our discussion of freedom of religion in Irish law. Chief among these is Article 44 which, following amendment in 1972, now reads as follows:

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2. Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

3. The State guarantees not to endow any religion.

4. The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

5. 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.

6. Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.

7. The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.³¹

As already noted, the Preamble to the Constitution is also redolent of a religious Weltanschauung. It reads:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be...