by Simon Sun.
Simon Sun is a recent LL.B. graduate from Trinity College Dublin. In this article, he assesses freedom of religion in the Irish constitution and its intersection with the blasphemy referendum, state education, and constitutional change.
Introduction: Diluting Ireland’s Religious Constitution
The freedom of religion enshrined in Article 44 is of paramount importance in a Constitution which refers to the Trinity, describes Christ as ‘Divine Lord,’ and states that the ‘legislative, executive and judicial, derive, under God.’ The Constitution, as enacted in 1937, reflected the Gaelic identity and Catholic values of Ireland at the time. Since, the dilution of these religious sentiments has been an area of vast constitutional change and when exploring the history of formal and informal constitutional change, a gradual liberalisation away from conservative religious values may be observed.[1] The past century has seen the constitutionally guaranteed supremacy of the church, along with prohibitions on divorce, same-sex marriage, abortion and blasphemy, removed by referendum.[2] Moreover, informal constitutional change was evident in the development of the unenumerated rights doctrine and the decriminalization of contraceptives in McGee v Attorney General.[3] This social revolution and wave of liberalisation has diluted the Catholic characteristics of the Constitution to better reflect Ireland’s increasingly secular and diverse population.[4]
Most overtly, the Fifth Amendment deleted references to the ‘special position’ of the Catholic Church. The rationale for this referendum partially rested in a fear of discrimination against the protestant population, which is interesting considering the popularity of Irish nationalism at the time.[5] According to Rory Milhench, the 1972 referendum was an attempt to make Ireland ‘appear less pious and sectarian to Ulster Unionists’ but nonetheless, was viewed as a superficial gesture.[6] The removal of the Church’s ‘exalted position’ did not have any effect on the state’s core religious fabric and this referendum had little more than a symbolic effect in practice.[7]
The Blasphemy Referendum
More recently, freedom of religion has experienced formal constitutional change through the referendum to remove the constitutional offence of publication or utterance of blasphemous matter from Article 40.6.1. Straying from the Constitution’s Roman Catholic values, the blasphemy referendum followed in the footsteps of the highly progressive referenda legalising divorce,[8] same-sex marriage[9] and abortion,[10] once again highlighting Irelands’ progressive values to the rest of the world. Whilst the last known prosecution in Ireland relating to blasphemy was in the 1850s, it is unwise to dismiss the blasphemy referendum as ‘entirely unnecessary.’[11] Some favour the process of desuetude, an example of informal change whereby constitutional provisions simply fall out of use. However, this article would argue that, like the criticised yet unenforceable women in the home provision,[12] even an unenforced blasphemy law may create what courts have called a ‘chilling effect’, limiting freedom of expression by making citizens contemplate the potential inconvenience and legal expenses of acting contrary to the provision.[13]
Furthermore, from an international human rights law perspective, the United Nations Human Rights Committee (OHCHR) also expressed its concern about Ireland’s blasphemy provision. Limitations to freedom of expression should only be accepted in special circumstances such as the prohibition of war propaganda and incitement of religious hatred listed in Article 20 of the International Covenant on Civil and Political Rights (ICCPR). If, for example, the purpose of section 36 of the Defamation Act was to protect the feelings of religious people from insult, the OHCHR would declare that as an insufficient justification for the restriction of the freedom of expression.[14] Further, the committee highlighted that the blasphemy provision only safeguarded majority religious beliefs which appears to be a motivation contrary to the spirit of Article 26 ICCPR.[15] In the event that it remains in the Irish people’s wishes to continue to extend protection to the sanctity of religion, the Constitutional Review Group’s suggestion was to legislate blasphemy within the Prohibition of Incitement to Hatred Act 1989[16] and provide equal protection to all religious groups. Nevertheless, the blasphemy prohibition was a gratuitous barrier to freedom of expression and religion. The provision held no place in Ireland’s modern Constitution which continues to make strides towards progressive values to better represent an increasingly secular nation.
The Constitutional Convention
The blasphemy referendum saw one of the final uses of the Constitutional Convention before it was replaced by the Citizen’s Assembly. Hence, it was an important lesson on Ireland’s sprouting pursuit of deliberative democracy and bottom-up politics. The initial response to the Convention was sceptical with academics claiming that the topics identified for consideration were ‘a handful of relatively inconsequential issues.’[17] However, on reflection, the Convention appeared to have been a positive experience for participants and proved to be a reminder that citizens are capable of engaging in a serious manner with complex questions of constitutional reform.[18] After the Convention, political figures called for a similar process to be implemented to engage with increasingly more significant constitutional questions. This birthed the Citizen’s Assembly which proved significant in tackling issues regarding the abortion referendum. Although commentators have cautioned against overvaluing the role of deliberative mini-publics in the ‘success stories’ of abortion and same-sex marriage,[19] this paper maintains that deliberative democracy can give everyday citizens a voice and strengthen Ireland’s democracy. Despite downfalls (which were partially attributed to funding) the Constitutional Convention was a successful experiment to gauge the nation’s enthusiasm for citizen-led constitutional change. Further, if the evolved Citizens Assembly manages to capture a legislative majority, deliberative democracy may become a powerful tool for constitutional change in the future.[20]
Formal vs Informal Constitutional Change
When comparing formal and informal constitutional change, a significant merit of the former is that referendum provides the ultimate medium to enable the will of the people and implement popular sovereignty.[21] Article 6.1 states that all power wielded by the branches of government derive ‘from the people’ and hence, at first glance, it is logical that the people ‘in final appeal… decide all questions of national policy.’[22] However, as elucidated by Oran Doyle, referenda may conjure false images of the constituent people willing a particular outcome into being, and the government and people collaborating as collective authors to solve foundational societal issues.[23] In reality, Article 46 of the Constitution has definitively placed the Oireachtas in the driving seat, bestowing power on them to determine the general area of constitutional content to be considered by the people during referenda. Hence, more accurately, the government enjoys the sole power to bring about referenda with the people acting as mere holders of veto power.[24] Thus, referenda are not quite as reflective of the will of the people as is commonly imagined.
While it is true that the master-text Constitution derives its power from acceptance by the judiciary, the same can be said for the methods in which the judiciary accepts past judicial decisions as precedents for future rulings despite no mention of this doctrine in the Constitution.[25] Hence, informal constitutional change has the capacity to alter the norms of the Constitution and should not be viewed as merely a supplement to formal amendment. Following this, informal constitutional change in many circumstances brandishes comparable legitimacy to formal change and should not be deemed categorically inferior in terms of its impact nor its legitimacy.
Religion and Education – A Private Choice?
Continuing on the trajectory of constitutional secularization, attention in recent years has been drawn to the continued Catholic influence in our education system. A significant development in the context of state funding of religious schools was seen in State v Minister for Education.[27] This case concerned a challenge taken by a secular group to the constitutionality of the State funding of school chaplains. The Supreme Court made an important deliberation on Article 44.2.4 which prohibits discrimination as to a child’s right to attend school without receiving religious instruction. Barrington J asserted that the Constitution differentiates between religious ‘education’ and religious ‘instruction’ and that the child’s right to not receive religious instruction did not extend to protection from the influence of the religious ‘ethos’ of the school. This perhaps was more practical when religion was taught as a stand-alone subject around the time of the enactment of the Constitution but today, where religious instruction has been integrated into the whole school curriculum, it is harder to draw the line. For example, it is unclear whether a student would be required to participate in religious choir, attend assemblies in churches, or engage in Easter activities.
Religion in the Constitution may be either read as an integral aspect of the common good or instead perceived in a more liberal light, placing religion in the ‘private’ sphere and interpreted as a matter of individual choice.[28] The decision in State v Minister for Education did not amount to any constitutional change of Article 44.2.4. However, through its mention of parental choice, the case may have illustrated a potential deviation towards viewing religion as a private affair in the future. It is the view of this paper that eschewing the outdated notion of religion as purveying ‘the common good’ will in fact strengthen Ireland’s constitutional protection of freedom of religion going forward. In State v Minister for Education, the plaintiff’s failure to accede to the more liberal concept of parental or individual choice was due to the requirement of positive state support. Correspondingly, tension arose due to the fact that religious freedom can only be realised in certain areas where schools catering for various beliefs hold enough demographic clout.[29] Hence, the parental choices which cannot be feasibly accommodated must tolerate a limited version of religious freedom, most frequently undercut by the Catholic majority.[30] With the patronage system still intact and around 90% of national schools under the control of the Catholic Church, it is fair to say that the structure of Ireland’s education system has scarcely shifted in two hundred years. Nevertheless, framing religion as a private choice rather than ‘the common good’ in the context of religious education is clearly a ripe area for informal constitutional change going forward.
Conclusion
Constitutional change is fundamental to any understanding of constitutional order. In this article, it is argued that formal constitutional change does not necessarily reflect the will of the people and hence, that informal constitutional change or judicial interpretation should not unconditionally be deemed less legitimate. Nevertheless, the referendum on blasphemy was a welcome invigoration of the freedom of expression and provided positive experimentation on deliberative democracy through the use of the Constitutional Convention. Additionally, strides towards more progressive values and the dilution of the Constitution’s religious undertones in the area of education were examined. In that respect, this paper calls for constitutional change to religious instruction in schools and supports the redefinition of religion as a private choice rather than the common good.
[1] Oran Doyle, ‘Constitutional Change in Ireland: Political History and Balance of Power’ (2017) 40(2) Dublin University Law Journal 3.
[3] McGee v Attorney General [1974] IR 284.
[4] Harriet Sherwood, ‘Faith, hope and secularity: Ireland on brink of change as church power wanes’ The Guardian (Dublin, 17 February 2016).
[5] Paul Townsend, ‘A Brief History of the Irish Nationalist Movement’ (Wisconsin University Press Blog, 22 November 2017) https://uwpress.wisc.edu/blog/?p=2159 accessed 24 July 2023.
[6] Rory Milhench, ‘Ulster Unionists and the Irish Constitution 1970-1985’ (2017) Manchester University Press 200.
[7] ibid.
[8] The Fifteenth Amendment of the Constitution Act 1995.
[9] The Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015.
[10] The Thirty Sixth Amendment of the Constitution Act 2018.
[11] Annabelle Timsit, ‘Everything you need to know about Ireland’s blasphemy vote’ (Quartz, 25 Oct 2018) https://qz.com/1437213/irelands-blasphemy-law-referendum-explained/ accessed 24 July 2023.
[12] Article 41.2.
[13] Ronan McCrea, ‘Vote yes: Law must reflect fact Ireland does not prosecute for blasphemy’ The Irish Times (Dublin, 24 October 2018) https://www.irishtimes.com/opinion/vote-yes-law-must-reflect-fact-ireland-does-not-prosecute-for-blasphemy-1.3673207 accessed 24 July 2023.
[14] Jamie McLoughlin, ‘“In the Presence of Almighty God” — The Human Rights Violations at the Heart of the Irish Constitution’ (2017) 35(17) Irish Law Times 230.
[15] ibid.
[16] Prohibition of Incitement To Hatred Act 1989.
[17] Eoin Carolan, ‘Ireland’s Constitutional Convention: Behind the Hype about Citizen-lead Constitutional Change’ (2015) 13(3) International Journal of Constitutional Law 733.
[18] ibid.
[19] Oran Doyle and Rachael Walsh ‘Deliberation in Constitutional Amendment: Reappraising Ireland’s Deliberative Mini-Publics’ (2020) 16(3) European Constitutional Law Review 440.
[20] ibid.
[21] Oran Doyle and Tom Hickey, Constitutional Law: Text Cases and Materials (2nd edn, Clarus Press 2019) 76.
[22] Doherty v Referendum Commission [2012] IEHC 211.
[23] Oran Doyle and Tom Hickey, Constitutional Law: Text Cases and Materials (2nd edn, Clarus Press 2019) 96.
[24] ibid.
[25] ibid.
[26] ibid.
[27] Campaign to Separate Church and State v Minister for Education [1998] 3 IR 321.
[28] Eoin Daly, ‘Religion as Public Good and Private Choice in Irish Constitutional Doctrine’ (2016) 56(56) The Irish Jurist 103.
[29] ibid.
[30] ibid.
UCD Law Review 