Content

Stephen Farrell, State and Church in the Republic of Ireland in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 147 - 170

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5, https://doi.org/10.5771/9783845296265-147

Bibliographic information
State and Church in the Republic of Ireland Stephen Farrell Social Facts Ireland is a predominantly Roman Catholic Country, with 78.3% of the population identifying as such in the 2016 census1. However, this marks a sharp decline from the 2011 census in which 84.2% of the population identified as Roman Catholic. This represents a wider trend of smaller numbers identifying as Christian. In the same period the Anglican population fell by 2%, the Presbyterian population by 1.6%, Pentecostals by 4.9% and those identifying themselves simply as Christian fell by 9.1%2. There has been a corresponding increase in those describing themselves as having no religion from 269,800 in 2011 to 468,400 in 2016, an increase of 73.6%. Those with no religion now account for just under 10% of the Irish population. The only increase in religious groups in this period has been the Muslim community, up 28.9% or 14,200, the Hindu community, up by 34.1% or 3,600 and the Orthodox community up by 37.5% or 17,0003. Though these percentage increases are significant they still represent relatively small numerical increases, even in a population of just over four million. It is possible to link some of these changes to migration, but others are due to societal change. In this period there has only been an increase of c6,000 in the number of non-Irish people declaring themselves to be of no religion, whilst the figures for Irish people of no religion has increased by c190,000. In this period the number of non-Irish people living in Ireland fell from 544,357 to 535,4754. There were also large drops in the number of migrants to Ireland from the UK and from Nigeria. There are now c11,000 fewer British people living in Ireland and c3,000 fewer Nigerians than in 2011. This means that the largest non-Irish group is now people I. 1 http://www.cso.ie/en/media/csoie/releasespublications/documents/population/2017 /Chapter_8_Religion.pdf. 2 Ibid. 3 ibid. 4 http://www.cso.ie/en/media/csoie/releasespublications/documents/population/2017 /Chapter_5_Diversity.pdf. 147 from Poland, followed by people from the U.K. This has to be read in light of the fact that people from Northern Ireland, part of the U.K., will often simply identify as Irish. The only identifiably Muslim country with an increase in numbers coming to Ireland is Pakistan, with 4,562 more people from Pakistan living in Ireland in 2016, or a total of 12,8915. However, only 11% of Muslims in Ireland identify as Pakistani with 55.6% having Irish nationality. Therefore the increase in the Muslim population must be accounted for among the Irish population or from immigration from other non-Muslim states. Historical Background Ireland’s complex history is key in understanding the changing place of religion and the differing position of various religious denominations in the state. Saint Patrick, born in Britain in 385AD, is credited with bringing Christianity to Ireland. The land he converted was under the authority of local kings, and this system existed until the arrival of the Anglo-Normans in the 12th Century6. The Normans brought the diocesan system, having met a Church that was predominantly monastic in nature. In theory the Normans brought their own law, but in reality the pre-existing system of Brehon law remained, especially outside the main centres of population on the east coast. This inability to enforce the law across the island is most evident in the limited success of the Reformation in Ireland. The Act of Supremacy of 1534 saw Henry VIII recognised as the head of the Church, rather than the Pope. Despite the penalties for non-adherence including death the population of Ireland did not conform nor convert to Anglicanism in significant numbers. The Anglican Church of Ireland was established as the state Church by the Irish Parliament in 1536 and its clergy were supported by tithes from all the population, most of whom were Catholic. This caused obvious resentment, especially as the Catholic population were trying to build new churches, their existing buildings having been taken for Anglican use. Greater resentment resulted from the ‘Penal Laws’, a comprehensive set of laws designed to punish those who would not convert from Catholicism. Catholics were prevented from holding II. 5 Ibid. 6 See Generally, Garcimartin & Cahill, ‘Religion and the State in Ireland’, 2014. https:/ /www.religlaw.org/content/blurb/files/Ireland%202014.pdf. Stephen Farrell 148 arms7, educating their children in the Catholic faith8 and from purchasing or inheriting land9. The Catholic hierarchy, including religious were banished10 and all secular clergy had to register and give sureties for good behaviour11. The Penal Laws gave way to Catholic Emancipation by the middle of the nineteenth Century and 1869 saw the disestablishment of the Church of Ireland12, it having lost the right to tithes in 183613. The journey to Irish independence brought sweeping changes in the religious landscape. The Act of Union of 1800 had seen the closure of the Irish Parliament in Dublin and the creation of a United Kingdom governed from Westminster, and the creation of the United Church of England and Ireland, which became the state Church. The early 20th century saw several attempts by Liberal governments in London to grant Ireland Home Rule, what would today be termed devolution. This was opposed by Irish protestants on the basis that they feared domination by the Catholic majority, taking up the slogan ‘Home Rule is Rome Rule’. The Third Home Rule Bill was passed before the outbreak of the first world war but never enacted. The Declaration of Independence read during the Easter Rising of 1916 sought the protection of “the Most High God”, and a similar document in 1919 similarly appealed to the Divine as having inspired the fight for Irish freedom. The Anglo-Irish Treaty of 1921 saw the division of Ireland into Northern Ireland and the Irish Free State. The Constitution of the Free State guaranteed “freedom of conscience and free profession and practice of religion”. The Constitution also prohibited the endowing of any religion, either directly or indirectly. The 1937 Constitution of the Irish Republic deals with religion in Art 44. It recognised freedom of religion, but also the “special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens”14 This ‘special position’ article was removed by a referendum in the Fifth Amendment to the Constitution in 1972. 7 1695 Disarming Act. 8 1695 Education Act. 9 1704 Popery Act. 10 1697 Banishment Act. 11 1704 Registration Act. 12 Irish Church Act 1869. 13 Church Temporalities Act 1836. 14 Article 44.1.2. State and Church in the Republic of Ireland 149 Legal Sources In Ireland the starting point for understanding the relationship between Church and State is Bunreacht na hÉireann, the 1937 Constitution. The Preamble invokes 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 referred”. The Preamble also humbly acknowledges “all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial”. The Preamble serves little purpose other than as a way of saying that the Constitution is to be the Constitution of Ireland. It has occasionally been referred to by the Courts, but only so far as it shines a light on claims about the religious nature of the State15. The Report of the Constitutional Review Group in 1996 recommended the amendment of the Preamble, but this has not been taken up by successive governments. Article 44 of the Constitution provides that: 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. 1 Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. 2 The State guarantees not to endow any religion. 3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. 4 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. 5 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 and charitable purposes. 6 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. III. 15 In Quinn’s Supermarket Ltd. v. Attorney General [1972] IR 1, at 23, the Preamble was used as a basis for the claim that the Irish are ‘a Christian people’. See also Norris v Attorney general [1984] IR 36. Stephen Farrell 150 Understanding the relationship between Church and State also requires attention to be paid to European provisions such as Article 9 of the European Convention on Human Rights, as well as to domestic legislation. Having inherited a common law system Ireland also has a large amount of judge made law and the case law is an important source, especially in the field of constitutional interpretation. Basic Categories of the System In the normal categorisation of states into either a state-church system, a separation system, or a co-operation system, the Constitution of Ireland best fits the separation model. That is, Ireland seeks to separate Church and State from one another. Daly sees a threefold rationale for this. Firstly, it seeks to avoid the corrupting potential of State interference in religion. Secondly, it reflects the enlightenment idea that human progress is best served by the separation of civil and religious concerns and that good government is secured by the removal of theological concerns from civic polity. Thirdly, and most importantly for the framers of the Irish Constitution, separation seeks to uphold individual religious freedom16. Article 44.2.2 of the Constitution which provides that ‘The State guarantees not to endow any religion’, has been described as “one of the most under-exploited provisions of the Constitution”17. it also belies the very close relationship between the post-independence Irish State and the Catholic Church. Though a strongly separationist Constitutional provision, the reality of the relationship between Church and State is more complex and does not offer a neat model of church and state separation. The leading case on the impact of 44.2.2 is Campaign to Separate Church and State v. The Minister for Education.18 In this case the Supreme Court rejected the view that the state was endowing religion contrary to Article 44.2.2 in its provision of religious chaplains in community schools. The case saw Article 44.2.2. considered in light of Article 42 of the Constitution which provides in 42.4 that; IV. 16 Daly, Eoin, ‘Re-evaluating the Purpose of Church-State Separation in the Irish Constitution: The Endowment Clause as a Protection of Religious Freedom and Equality’, Judicial Studies Institute Journal [2008: 2] 86 at 91ff. 17 ibid, at 86. 18 Campaign to Separate Church and State v. The Minister for Education [1998] 3 I.R. 321. State and Church in the Republic of Ireland 151 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. Barrington J. recognised that parents have a "right to have religious education provided in the schools which their children attend",19 and that this right was broad enough to allow the State to fund religious chaplains in these schools. The purpose was not so much to confer a benefit on any religion, so much as it was intended to provide religious education in accordance with Article 42. A possible further erosion of the principle of separation found in Article 44.2.2 came from the Supreme Court in Re Article 26 and the Employment Equality Bill 1996,20 where the court seemed to accept that the State would not be viewed as endowing a religion by giving the religion a financial benefit, provided all religions were benefitted equally, and the benefit was not discriminatory. In a comment that would severely curtail the scope of Article 44.2.2, Hamilton C.J. noted: “the endowment of religion implies the selection of a favoured State religion for which permanent provision is made out of taxation or otherwise.”21 Legal Status of Religious Communities Most religious bodies in Ireland operate as charities and are subject to the rules laid down for charities in the Charities Act 2009, save that for churches there is no need to show that their activities benefit the public as there is a presumption that the advancement of religion is in the public benefit. There is no Concordat between Ireland and the Holy See, though the possibility was considered in the early days of the independent State. The idea of a concordat was rejected on the basis that concordats were ‘a remnant of the bad days of temporal power, one of the methods by which Popes tried to secure material power and influence in the ordinary affairs of states’. A more serious reason for avoiding a concordat was that the people of Ireland held their priests in higher esteem than they held Vatican officials. A concordat with Rome would ‘gradually bring them regard insti- V. 19 ibid at 358. 20 Re Article 26 and the Employment Equality Bill 1996 [1997] 2 I.R. 321. 21 ibid at 354. Stephen Farrell 152 tutional religion in Ireland as a material appendage of the central Roman government for which they have no great reverence... The practice of the spiritual teaching of the Church must suffer, and does in all cases suffer, when the ministers of religion derive the privileges of their position from any source but the people themselves’.22 The Special Position of the Catholic Church regognised in the 1937 Constitution was a compromise position achieved by the writer of the Constitution and Irish Taoiseach, Eamon de Valera. Both the Archbishop of Armagh and Pope Pius XI wanted the Constitution to recognise the Catholic Church as the one true Church. Diplomatic efforts led to an agreement that the Pope would remain silent on the matter and neither approve or disapprove.23 The Special Position had limited legal impact and arguably, like the Preamble’s dedication to the Holy Trinity, was meant to be a statement of national identity rather than something justiciable. Its removal from the Consitution received no official response from the Catholic Church, save Cardinal Connall’s obiter dictum that he would not shed a tear at its removal. The Irish Constitution does not attempt to define what is a religion. The Roman Catholic Church, the Church of Ireland, the Methodist Church, the Presbyterian Church, the Religious Society of Friends and the Jewish Religion were all recognised in the now repealed Article 44.1.2.-3. That Article also referenced other denominations existing at the time of the passing of the Constitution, and other legislation, such as the now repealed Adoption Act 1952 recognised the Salvation Army, the Plymouth Brethren and the Baptist Union. The case law on the status of religious communities in Ireland has tended to centre around whether or not a body could claim the relevant tax exemptions as a religion. However, the courts have rejected the idea that religious status can be determined by reference to cases concerning tax exemptions.24 22 Memorandum by Joseph P. Walsh on the possibility of an Irish Concordat with the Holy See. Dublin, 24 October 1936. Documents on Irish Foreign Policy. http://www.difp.ie/docs/1936/Concordat-with-Holy-See/1744.htm. 23 See McDonagh, Enda, ‘Church-State Relations in independent Ireland’, in Religion and Politics in Ireland at the Turn of the Millennium, Mackey J and McDonagh E (eds), Columba, Dublin 2003 at 41. 24 Johnson v Church of Scientology [2001] IR 682. State and Church in the Republic of Ireland 153 Religious Communities within the Political System For many years before independence Irish Nationalism had been closely associated with Catholicism. In Independent Ireland the population and legislature were predominantly Catholic and, whilst there were some notable dissenting voices in the Seanad, the Upper House of the Irish Parliament, the new legislature was keen to forge its own course and to cast off the legacy of its old overlord. One early example of this was a bill to remove the right to divorce by private members’ parliamentary bill in 1925. This means of divorce was a British provision and seemed to be removed without episcopal prompting.25 The writing of the Irish Constitution did see some discussion between the Taoiseach and his friend Fr John Charles McQuaid, later Archbishop of Dublin, though the extent of the influence exerted by McQuaid is debated26. Given population demographics it has only been relatively recently that any political party could decide lightly to take on or to defy the teaching of the Catholic Church. In 1951 the government was brought down when the bishops of the Catholic Church rejected the Mother and Child Public Healthcare Scheme as being against Catholic social teaching. In the parliamentary debate that led up to the passing of the bill the government had stressed to the House their acceptance of the bishops authority in social matters. The Taoiseach, John A Costelloe, said, ‘I, as a Catholic, obey my Church authorities’, and offered on his own behalf and of the entire government, his and their ‘complete obedience and allegiance’.27 Sixty years later the Taoiseach of the day, in response to a growing rift with the Vatican over clerical sexual abuse of minors pledged himself to a ‘Republic of Laws’ where ‘the law of the land should not be stopped by collar or a crozier’ and in which the Church would have no privileged institutional or legal status28. Between these two positions were decades where the Catholic Church exerted notable influence on the political system. Things began to change in 1974 with the McGee29 case, which overturned the ban on the sale of contraceptives. In 1995 the fifteenth amendment to the Constitution overturned the constitutional ban on divorce, passed by the narrowest of mar- VI. 25 McDonagh at 43. 26 See McDonagh at 37ff. 27 Dáil Éireann Debates, Vol 125, Col 784, 12 April 1951. 28 P Cullen ‘Vatican Relationship at New Low’. The Irish Times, 21 July 2011. See Daly, Eoin, ‘Religion, Law and the Irish State’, Clarus Press. Dublin 2012 at 7ff. 29 McGhee v The Attorney General. [1974] IR 284. Stephen Farrell 154 gins, 50.28% to 49.72%. 2015 saw Ireland become the first country in the world to legalise same sex marriage by popular vote. The last instance of the Catholic Church showing the extent of its social influence came in 1983 with the eighth amendment to the Constitution, which gave equal value to the right to life of the unborn and the mother, effectively banning abortion. The 2018 vote to repeal the 8th amendment passed by a two thirds majority despite the vigorous campaigning of the Catholic Church, a sign that a new political landscape now exists in Ireland and that the Church has a marginal voice on social and political matters. Recent referrenda to remove the criminal offence of blasphemy (2018) and to reduce the waiting periods required in obtaining a divorce (2019) passed with large majorities, and with less visible campaigning by the Catholic Church. It ought not to be thought the people of Ireland have all abandoned their faith, but rather that the voice of bishops on social matters is not the last word for the faithful or the electorate. This has always been a facet of Irish religious life, previously shown most notably in the hard line taken by bishops to Republican violence during the struggle for independence in contrast to the sympathy felt among clergy and people.30 What is notable is that through the pendulum swing in the position and influence of the Church in the political system, even from 1951 to today, little has changed in the regulatory framework governing the church state relationship, with the exception of the repealing of Article 44.1.1. The changing position has not been inspired by or reflected in the legal framework, and shows the flexibility of the Constitutional model of Church state relations found in Ireland.31 Culture It is still not inaccurate to describe Ireland as a Catholic country, given the results of the 2016 census. What is obvious from recent referenda on marriage, abortion, divorce and blasphemy is that the Catholic faithful do not feel obliged to ensure that the law of the land conforms to Catholic social teaching. That said, the presence of the Church is very visible in Irish life and culture in a way that is not obvious in the Constitution. The Church is actively involved in education at primary, secondary and tertiary level. The Constitution recognises the rights of parents to decide VII. 30 See McDonagh. 31 See Daly, Eoin, ‘Religion, Law and the Irish State’, Clarus Press. Dublin 2012 at 7ff. State and Church in the Republic of Ireland 155 upon the religious ethos in which their children are educated and the state is expected within certain parameters to facilitate this. The Church is also involved in healthcare, with many public and private hospitals still under the control of religious orders and other church bodies. This is increasingly coming under scrutiny as the law governing medical care becomes further out of step with the ethos of such hospitals. It has been said by the present Taoiseach that institutions such as religiously run hospitals will not be able to opt out of offering abortion services.32 In 2017 an announcement that the National Maternity Hospital would be moved to the site of St Vincent’s Hospital, run by the Sisters of Charity, caused a public outcry leading to the Sisters of Charity ending their involvement with the hospital group. This was described by the Irish Times as a victory for people power, and a turning point in the history of religious involvement in Irish healthcare.33 Speaking recently in Germany the Catholic Archbishop of Dublin noted that it is difficult to define the place of the Catholic Church in Irish life today. The Angelus is broadcast twice a day by the state broadcaster, there is much religiosity still visible in national life, religious practice is high by European standards, the Marian Shrine at Knock is one of Ireland’s top tourist destinations yet the influence of the Church is decreasing and there is no Catholic vote as exists in America34. Labour Law within the Religious Communities The Employment Equality Acts 1998-2011 provide the basis of workplace anti-discrimination laws in Ireland. There is a very wide and much criticized exemption given to churches in s.37 of the 1998 Employment Equality Act. That section provides that certain religious, educational or medical institutions under the direction or control of a body established for religious purposes, or whose objects include the provision of services in an environment that promotes certain religious values, will not be taken to have discriminated against a person if: VIII. 32 ‘Hospitals with Catholic Ethos Expected to Carry Out Abortions- Varadkar’ in Irish Examiner, 12th June 2018. 33 Paul Cullen ‘Exit of Sisters of Charity from St Vincent’s a Victory for People Power’ in Irish Times 30th May 2017. 34 https://www.catholicbishops.ie/2017/07/08/elationship-between-church-and-state-i s-one-of-prudent-distance-archbishop-diarmuid-martin/. Stephen Farrell 156 (a) they give more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of an institution, or (b) they take action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution. Though no one has ever lost their job because of s.37, it is thought that the case of Flynn v Power35, which predates the Employment Equality Acts, would be decided the same way today. This case concerned a female teacher in a Catholic school who became pregnant as a result of a relationship with a married man. She was dismissed from her employment and her dismissal was successfully justified by the defendant on the basis that the school was established to promote a certain religious ethos and the plaintiff’s lifestyle was in contravention of that ethos. There are many uncertainties surrounding s.37. it is unclear whether it relates to religious affiliation in the narrow sense, or if it extends to the level of religious observance on the part of an individual, or their orthodoxy. it is unclear how religious characteristics are to be discerned for the purposes of the section, or what lifestyle factors will be considered undermining of ethos. A further difficulty is in determining the class of persons who may undermine the ethos of an organization. There is a notable absence of any requirement of situational or occupational necessity in s37, with no requirement that the act of discrimination be necessary to the imparting of the religious beliefs of the institution. Whilst it may be argued that a teacher in a religious school must accept the ethos of the school, especially if they teach religion, it is harder to argue that the secretary or cleaner must. The breadth of s.37 and its relation to non-religious characteristics such as lifestyle or sexual orientation, is unclear. The broad provision in s37(b) would seem to widen the scope of the exemption to characteristics not directly related to religion. The present government has been critical of s.37, but has taken the view that removing it would be a constitutional matter. In the Programme for Government, drawn up by the coalition partners in 2011, there was a commitment that 35 Flynn v Power [1985] IR 648. State and Church in the Republic of Ireland 157 People of non‐faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State.36 During 2012 the Government charged the Equality Authority with undertaking a public consultation on the future of s.37.37 The bill that eventually gave rise to the Employment Equality Act 1998 was challenged in the Supreme Court in Re Article 26 and the Employment Equality Bill 199638. Citing Quinn’s Supermarket, the Supreme Court held that religious discrimination was permissible where necessary to give ‘life and reality’39 to the constitutional guarantee of religious freedom. However, in Quinn’s Supermarket, discrimination was held to be lawful only insofar as it is necessary to protect religious freedom, it is difficult to see how the breadth of s.37 is required to protect religious freedom. Legal Status of Clergy and Members of Religious Orders This is an underdeveloped area of law in the Republic of Ireland. The vast majority of religious ministers in Ireland are Roman Catholic priests whose status is governed by Canon Law. Until recently there has been a IX. 36 quoted in an INTO submission to the Equality Authority on s37. https://www.int o.ie/ROI/Publications/INTOSubmissions/Submission_S371.pdf. 37 The Minister for Justice, Equality and Law Reform said in the Dail “it is unjust that people whose wages are paid by the taxpayer and who are employed to provide essential public services, like education or healthcare services, should feel oppressed or feel a need to live their lives in secret for fear that their sexual orientation should lead to victimisation by an employer”. He proposed an approach to amending legislation on the lines that Section 37(1) could remain unchanged in respect of wholly autonomous religious institutions, but that for educational and medical institutions, it might be provided that more favourable treatment on the religion ground could not be based on a person's characteristics under one of the other grounds; and that “reasonable action to prevent an employee or prospective employee from undermining the religious ethos of the institution may only be taken where an employee actively undermines or seeks to undermine, or where there is a reasonable belief based on demonstrable evidence that a prospective employee would so undermine or seek to undermine, the religious ethos of the institution concerned”. Quoted in https://www.into.ie/ROI/Publications/INTOSubmissions/Submission_ S371.pdf. For a converse view of s37 see http://d2539.cp.irishdomains.com/assets/f iles/Section%2037%20submission.pdf. 38 [1997] 3 IR 321. 39 ibid. Stephen Farrell 158 high level of political and judicial deference to the internal regulation of the Roman Catholic Church. Also, it has not been possible to find any case before the Irish courts or the Employment Appeal Tribunal arguing as to the labour status of Catholic priests. The case law that exists concerns either ministers of other denominations or of Catholic Religious working as teachers. In Ireland the traditional view of clergy in terms of employment is that they are not employees, but office holders. This position pre-dates independence and has been maintained in Irish law whist the British courts have shown some signs of moving away from this view40. In the Irish case O’Dea v Briain41 it was accepted that a member of a religious order was an office holder, but they could also be in employment. On the facts of the case Sr. O’Dea was not claiming that she was employed by the religious order but that she was employed by its school as a teacher. The decision of her Superior to move her from Dublin to Monaghan meant she would lose her teaching job. The EAT focused on the fact as a sister and a teacher the nun operated under two codes, and that there was no guarantee that the two codes would always reconcile with one another. The power given to a religious superior through the vow of obedience was said to be absolute and that it could never have been intended to be questioned before any tribunal. This comes quite close to saying that there could have been no intention to create legal relations. The case of Millen v Presbyterian Church in Ireland42 a minister was considered not to be an employee of the central church because, though it issued his P60 (a document issued when a person leaves an employment), it was the local congregation that initiated the appointment, chose Mr Millen and ultimately paid his stipend. The nature of office or his spiritual duties was not considered. It is arguable that if Mr Millen had been pursuing his local congregation the decision may have been different. In the case of Fraser43 the EAT gave a very strong and decisive determination which is worth reproducing in full. The claimant is an office-holder and not an employee. No contract of employment exists; the nature of the relationship cannot be analysed in 40 See President of the Methodist Conference v Preston [2013] UKSC 29; Sharpe v The Bishop of Worcester [2015] EWCA Civ 399. See generally Davies, ACL, ‘The Employment Status of Clergy Revisted: Sharpe v Bishop of Worcester’, Industrial Law Journal 2015, Vol 44, 551. 41 O’Dea v Briain [1992] ILRM 364. 42 Millen v Presbyterian Church in Ireland [2000] 11 ELR 292. 43 Representative Body of the Church of Ireland v Frazer [2005 EAT] 16 ELR 292. State and Church in the Republic of Ireland 159 contract terms because the tribunal does not accept that there was an intention to create legal relations. The nature of the relationship with the church is that of a vocation or a calling, which cannot be grounded in the common law notion of contract. The claimant's duties are defined and his activities are dictated not by contract but by conscience.44 This restatement of the traditional understanding of the legal position of clergy requires little analysis and allows little room for circumnavigation. Suffice it to say that the Tribunal has reiterated a position that is much stronger than that in Preston. One question is whether the stipulation that a vocation cannot be grounded in contract precludes the finding of an intention to create legal relations alongside, but parallel to, the vocation of the minister. The EAT did not find an intention to create legal relations, though it is arguable that in a different case they may do so, notwithstanding the fact that the individual concerned is a minister of religion. Finances of Religious Communities Article 44.2 of the Constitution provides: 5. 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 and charitable purposes. 6. 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. There is limited case law on Articles 44.2.5 and 44.2.6. In McGrath and Ó Ruairc v Trustees of Maynooth College45, the Supreme Court adverted to Article 44.2.5 and its guarantee of the right of every religious denomination to manage its own affairs, in upholding the right of Maynooth College, a seminary, to enforce the discipline of its statutes. In Crichton v Land Commission and Gault46, the Land Commission purported to acquire land used as a schoolhouse by the Church of Ireland Diocese of Kilmore. It was held, citing Article 44.2.6, that X. 44 Frazer 296. 45 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. 46 Crichton v Land Commission and Gault (1950) 84 ILTR 87. Stephen Farrell 160 This schoolhouse was held by a religious body for educational and religious purposes, and therefore the attempted acquisition by the Land Commission was unconstitutional and void. The fact that this case was held before the Circuit Court makes it a poor authority for a Constitutional law provision. What exactly ‘works of public utility’ are in the context of Article 44.2 has never been tested before the courts. Religious Assistance in Public Institutions The model of chaplaincy in public institutions in Ireland has never really been planned, but has emerged largely unchanged from a different and more clerical age. There is little by way of regulation of the chaplaincy field, outside of the area of healthcare. The Higher Education Authority has just completed a two-year review of the way in which chaplains of colleges and universities are appointed and funded. Chaplains are regularly found in public institutions such as hospitals, schools, prisons and universities. Sometimes these chaplaincy posts are funded by the state, or they may be partly funded by the religious body appointing or nominating the chaplain. The willingness of the Irish State to fund certain chaplains does not necessary carry with it an element of control in the appointment or regulation of the activities of a chaplain. In Conroy v Board of Management of Gorey National School47 a Roman Catholic priest was removed by a school Board of Management from his state funded position as school chaplain. He alleged that his removal was ultra vires and in breach of fair procedures, and sought judicial review. The judge noted that unlike with the appointment of a teacher, the Minister for Education has no role in the selection criteria, appointment or necessary qualifications of a chaplain. The Minister could not seek the removal of a chaplain, and there was no public law element to the appointment48. The lack of regulation of paid chaplaincy posts in Irish schools reflects an historical legacy. Recently there have been changes in the law to import XI. 47 Conroy v Board of Management of Gorey National School Unreported. [2015] IEHC 103. 48 para 46. State and Church in the Republic of Ireland 161 greater regulation. Section 30 of the Teaching Council Act 2001 became operative in November 2013.49 Subsection 5.5 provides that In the case of school chaplains paid by the State, these posts are regarded as teaching posts, and, therefore, those appointed to them should be registered teachers... Any school chaplain currently in employment who cannot gain registration with the Teaching Council will be permitted to continue in his or her role in pastoral care but will be prohibited from teaching. New appointees to chaplain positions must be registered teachers. This move to require chaplains to also be qualified teachers could be read as a secularizing move, as it reduces the likelihood of ordained clergy being qualified, and may be an attempt to move to a model of lay chaplains, with chaplaincy simply being an extra duty undertaken by one or more teachers. By requiring the chaplains to be registered teachers there is greater scope for regulating their activity and defining the limits of the service they are to provide. Most institutions welcome the presence of people of non-Christian faiths acting in a chaplaincy capacity amongst students, residents or staff. This is true of the Irish Prison Service50 and the Health Service Executive51, which publishes guides for staff on how best to organize chaplaincy provision for patients of minority faiths.52 Matrimonial and Family Law Family law in Ireland has seen significant recent development as society changes. In the area of contraception, abortion, same sex relationships and divorce the law has seen significant developments that cast light on the status of the church state relationship. Article 41 of the Constitution provides 1. The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing in- XII. 49 Department of Education and Skills. Departmental Circular 0025/2013 Requirement for Teachers in Recognised Schools to Register with the Teaching Council. 50 Irish Penal Reform Trust. http://www.iprt.ie/prison-facts-2. 51 https://www.hse.ie/eng/services/publications/Your_Service,_Your_Say_Consumer_Affairs/Reports/questionoffaith.pdf. 52 http://www.tusla.ie/uploads/content/Publication_Health_Services_Intercultural_ Guide.pdf. Stephen Farrell 162 alienable and inprescribable 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. These provisions have been held not to ‘create any particular right within the family... but rather deals with the protection of the family from external forces’.53 It has also been held that the full constitutional protection only applies to families based on marriage.54 Marriage itself has been widened by referendum to include same sex couples55, following on from the introduction of some rights for same sex couples under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. Six months after the passing of the Marriage Act 2015 new civil partnerships ceased to be available.56 The 1937 Constitution contained a prohibition on divorce.57 A referendum to remove this in 1986 was defeated, but a second referendum in 1995 narrowly passed. The Family Law (Divorce) Act 1996 allows for nofault divorce where the parties have lived apart from one another for four of the last five years, there is no reasonable prospect of reconciliation and proper provision has been made for the spouses and dependents. The Family Law (Divorce) (Amendment) Act 2019 shortened this waiting period from four to two years. The rights of the unborn represent a controversial topic in Irish law. Whether and in what circumstances abortion was constitutionally permitted became an important issue in the wake of the United States Supreme Court decision Roe v Wade.58 The Irish position was not clear and much rested on the Offences Against the Person Act 1861 which made it an offence for a mother or another ‘unlawfully’ to procure an abortion. This provision had been read by UK courts to not apply where the circumstances meant that continuing with a pregnancy would result in the wom- 53 L v C [1992] 2 IR 77 at 108. 54 State (Nicolaou) v An Bord Uchtála [1966] 1 IR 567 at 643-44. 55 A referendum on 22 May 2015 amended the Constitution of Ireland to provide that marriage is recognised irrespective of the sex of the partners. The Marriage Act 2015 gave legislative effect to the amendent. 56 Marriage Act 2015 s8. 57 Article 41.3.2 ‘no law shall be enacted providing for the grant of a dissolution of marriage’. 58 Roe v Wade (1973) 410 US 113. See generally Forde & Leonard ‘Constitutional Law in Ireland’ Bloomsbury, Dublin 2013 at 730ff. State and Church in the Republic of Ireland 163 an becoming ‘a physical or mental wreck’.59 There was a fear in certain sections of Irish society that the Supreme Court in Dublin might follow the Supreme Court in America unless the law was clarified. This led to the 8th amendment to the constitution in 1983, which gave the unborn equal right to life to that of the mother. This amendment was not followed by any enacting legislation, it being considered to be ‘self enacting’. The Supreme Court considered likelihood of suicide a grounds of abortion notwithstanding the 8th amendment60, and this led to unsuccessful attempts in 1992 and 2002 to have the amendment made more restrictive. It was repealed in 2018. Criminal Law and Religious Communities Ireland had limited references to religion or religious communities in its criminal law61. In the past special protections may have been afforded to religion, religious acts of worship and religious persons under the law, but increasingly old common law offences are being systematically codified and old statutes which differentiated between persons and groups in a way that is no longer thought appropriate are being replaced by statutes which provide general provisions applicable to all and designed to protect all equally. Thus, whilst it was an offence under s.36 of the Offences Against the Person Act 1861to obstruct a clergyman in the execution of his duty, punishable by up to two years hard labour, whereas s3.9 of the same act only carried a penalty of up to three months for attacking those seeking to sell grain. Today such specific offences have been removed and replaced with more general provision in the Non-Fatal Offences Against the Person Act 1997. Similarly, the crime of sacrilege under the Larceny Act 1916 was repealed by the Criminal Law (Jurisdiction) Act 1976 and is now dealt with in the same way as other property offences, and is covered by the Criminal Justice (Theft and Fraud Offences) Act 2001. Blasphemy is no longer a crime in Ireland, it having been removed from the Constitution following a referendum in 2018. Prior to this Article 40.6.1 of the Constitution provided “The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be pub- 59 R v Bourne [1939] KB 687. This was followed in Northern Ireland in Northern Health & Social Services Board v AMNH [1994] NIJB 1. 60 Attorney General v X [1992] 1 IR 1. 61 Generally see Colton P, ‘Religion in Criminal Law in Ireland’ in Religion and Criminal Law : Religion et Droit Pénal. Kotiranta, Matti and Doe, Norman (eds) Peeters 2013. Stephen Farrell 164 lishable in accordance with law”. The Law Reform Commission noted in 1991 that the common law offence of blasphemy “was totally uncertain as to both its actus reus and its mens rea”62. A 1999 attempted prosecution for blasphemy failed, the Supreme Court agreeing with the Law Reform Commission, holding that the task of defining the crime is one for the Legislature, not the Courts.63 The Defamation Act 2009 did seek to define the offence, but with a very narrow scope. Major Developments and Trends Archbishop Dairmuid Martin of Dublin has described the relationship between Church and State in Ireland as one of ‘prudent distance.’64 Recounting Pope John Paul II asking him how secularisation had come to Ireland so quickly, he replied that it had actually arrived gradually, but the Church had not noticed, too busy keeping the same show on the same road.65 This secularisation is a strong and continuing trend. Changes in family law and in civic society are not satisfying the appetite for reform but giving fuel to those who would wish to see Irish society transformed. The appeal to the founding fathers of independent Ireland and to the 1916 Proclamation of the Irish Republic is made to the ideal of a secular republic. The Autumn of 2018 will see the Irish people presented with referenda to remove the offence of blasphemy from the Constitution and to remove the provision which talks of the place of the woman in the home and not being compelled to work outside the home. Whilst the latter could not be described as a religious provision, both show a desire to create a more liberal and advanced society. A further area of conflict is the position of the Churches in the Irish education system. Almost all schools are managed by religious bodies. The Amendment to Education (Admission to Schools) Bill 2016, enacted in May 2018, removes the ability of religious schools to prioritise children of their religion in their admissions policy. The law does contain a derogation for minority schools, such as Jewish, Muslim or Protestant schools, but this derogation has not been tested before the courts and could be said to be contrary to the principle of equal treatment of religions. The present XIII. 62 Law Reform Commission ‘Report on the Crime of Libel’ (LRC 41-1991) par.17. 63 Corway v Independent Newspapers Ltd [1999] 4 IR 485; at 436-7. 64 https://www.catholicbishops.ie/2017/07/08/elationship-between-church-and-state-i s-one-of-prudent-distance-archbishop-diarmuid-martin/. 65 ibid. State and Church in the Republic of Ireland 165 educational model where schools are under the Patronage of a religious organisation or person, such as the diocesan bishop, is ripe for change. The prevailing rationale for the patronage model, in law and otherwise, has shifted from a broadly ‘communitarian’ idea of religious freedom – centring upon the recognition of religious identities – to a more individualistic. ‘choice’ oriented justification, centring instead upon the secular goods of diversity and choice.66 There have been calls in parliament for the Catholic Church to hand over ownership of at least some of its schools67 to the state and the Catholic Archbishop of Dublin has been vocal in his desire to make this happen68. XIV. Bibliography Constitutions The Constitution of the Irish Free State: Bunreacht Shaorstáit Eireann. 1922 The Constitution of Ireland: Bunreacht na hÉireann 1937 Treaties and Conventions Anglo Irish Treaty 1921 Convention foe the Protection of Human Rights and Fundamental Freedoms 1953 Legislation Act of Union 1800 Adoption Act 1952 Banishment Act 1697 Charities Act 2009 Church Temporalities Act 1836 Criminal Justice (Theft and Fraud Offences) Act 2001 Criminal Law (Jurisdiction) Act 1976 66 Daly at 252. 67 ‘The legal ownership of those schools should be transferred without any contribution... we need to take these schools and our entire primary school infrastructure into public ownership. We need to get the management controls that are necessary to bring us into line with every other Eurpoean country’. Deputy Ruairi Quinn, Dail Éireann, Vol 684 Col 588 6th June 2011. 68 Burns, Sarah ‘Church has Stubborn Reluctance to school Divestment says Martin’. Irish Times 10th July 2017 . Stephen Farrell 166 Defamation Act 2009 Disarming Act 1695 Education Act 1695 Irish Church Act 1869 Larceny Act 1916 Marriage Act 2015 Non-Fatal Offences Against the Person Act 1997 Offences Against the Person Act 1861 Popery Act 1704 Registration Act 1704 Teaching Council Act 2001 Table of Cases Attorney General v X [1992] 1 IR 1 Campaign to Separate Church and State v. The Minister for Education [1998] 3 I.R. 321 Conroy v Board of Management of Gorey National School Unreported. [2015] IEHC 103 Corway v Independent Newspapers Ltd [1999] 4 IR 485 Crichton v Land Commission and Gault (1950) 84 ILTR 87 Flynn v Power [1985] IR 648 Johnson v Church of Scientology [2001] IR 682 L v C [1992] 2 IR 77 at 108 McGhee v The Attorney General. [1974] IR 284 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166 Millen v Presbyterian Church in Ireland [2000] 11 ELR 292 Norris v Attorney general [1984] IR 36 Northern Health & Social Services Board v AMNH [1994] NIJB 1 O’Dea v Briain [1992] ILRM 364 President of the Methodist Conference v Preston [2013] UKSC 29 Quinn’s Supermarket Ltd. v. Attorney General [1972] IR 1 R v Bourne [1939] KB 687 Re Article 26 and the Employment Equality Bill 1996 [1997] 2 I.R. 321 Representative Body of the Church of Ireland v Frazer [2005 EAT] 16 ELR 292 Roe v Wade (1973) 410 US 113 Sharpe v The Bishop of Worcester [2015] EWCA Civ 399 State (Nicolaou) v An Bord Uchtála [1966] 1 IR 567 State and Church in the Republic of Ireland 167 Books Casey, James, Constitutional Law in Ireland, 3rd ed. Round Hall, Dublin 2000 Daly, Eoin, ‘Religion, Law and the Irish State’, Clarus Press. Dublin 2012 Forde & Leonard ‘Constitutional Law in Ireland’ Bloomsbury, Dublin 2013 McDonagh, Enda, ‘Church-State Relations in independent Ireland’, in Religion and Politics in Ireland at the Turn of the Millennium, Mackey J and McDonagh E (eds), Columba, Dublin 2003 Articles Casey, James, “Church Autonomy and Religious Liberty in Ireland,” in Church Autonomy: A Comparative Survey, ed. Gerhard Robbers (Frankfurt am Main: Peter Lang, 2001) Colton P, ‘Religion in Criminal Law in Ireland’ in Religion and Criminal Law : Religion et Droit Pénal. Kotiranta, Matti and Doe, Norman (eds) Peeters 2013 Daly, Eoin, ‘Re-evaluating the Purpose of Church-State Separation in the Irish Constitution: The Endowment Clause as a Protection of Religious Freedom and Equality’, Judicial Studies Institute Journal [2008: 2] 86 Davies, ACL, ‘The Employment Status of Clergy Revisted: Sharpe v Bishop of Worcester’, Industrial Law Journal 2015, Vol 44, 551 Garcimartin & Cahill, ‘Religion and the State in Ireland’, 2014. https://www.religlaw .org/content/blurb/files/Ireland%202014.pdf Newspapers Burns, Sarah ‘Church has Stubborn Reluctance to school Divestment says Martin’. Irish Times 10th July 2017 Cullen, Paul ‘Vatican Relationship at New Low’. The Irish Times, 21 July 2011 Cullen, Paul ‘Hospitals with Catholic Ethos Expected to Carry Out Abortions- Varadkar’ in Irish Examiner, 12th June 2018 Cullen, Paul ‘Exit of Sisters of Charity from St Vincent’s a Victory for People Power’ in Irish Times 30th May 2017. Government Publications and Reports Central Statisticss Office. Census 2016 Population. Ch 8, Religion. http://www.cso. ie/en/media/csoie/releasespublications/documents/population/2017/Chapter_8_ Religion.pdf Central Statistics Office. Census 2016 Population. Ch 5, Diversity http://www.cso.ie/en/media/csoie/releasespublications/documents/population/2017 /Chapter_5_Diversity.pdf Stephen Farrell 168 Dáil Éireann Debates, Vol 125 Department of Education and Skills. Departmental Circular 0025/2013 Requirement for Teachers in Recognised Schools to Register with the Teaching Council. Health Service Executive. intercultural Guide. http://www.tusla.ie/uploads/content/ Publication_Health_Services_Intercultural_Guide.pdf INTO submission to the Equality Authority on s37. https://www.into.ie/ROI/Publi cations/INTOSubmissions/Submission_S371.pdf Law Reform Commission ‘Report on the Crime of Libel’ (LRC 41-1991 Memorandum by Joseph P. Walsh on the possibility of an Irish Concordat with the Holy See. Dublin, 24 October 1936. Documents on Irish Foreign Policy. http:// www.difp.ie/docs/1936/Concordat-with-Holy-See/1744.htm Speeches Martin, Dairmuid, ‘Relationship Between Church and State is one of prudent distance’. https://www.catholicbishops.ie/2017/07/08/elationship-between-church-a nd-state-is-one-of-prudent-distance-archbishop-diarmuid-martin/ State and Church in the Republic of Ireland 169

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Abstract

Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.

Zusammenfassung

Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.