IHRC Discussion paper Part 5 – The Constitution
This is an extract from a discussion paper written by the Irish Human Rights Commission about religious education and human rights. Atheist Ireland is preparing a response to this discussion paper, and we welcome your feedback on it.
28. Article 42.1 of the Constitution states:
“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
29. Article 43.4 further provides:
“The State shall provide free primary education….with due regard, however for the rights of parents, especially in the manner of religious and moral formation.”
30. Finally 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 in that school.”
31. In Crowley v Ireland  IR 102, the Supreme Court found that the management of primary schools along denominational lines was constitutionally valid. However, it noted that there is a constitutional right for parents to withdraw their children from religious instruction.
32. In light of the guarantee under Article 44.2.4 there is a provision in the Education Act which states that a student shall not be required to attend instruction in any subject which is contrary to the conscience of the parent of the student.11 This is an entitlement that every national school must respect and facilitate.
33. The leading Irish case in relation to religious education in schools is the decision of the Supreme Court in Campaign to Separate Church and State Ltd v The Minister for Education  3 IR 321. The case concerned the constitutionality of the State providing funding for school chaplains.
The challenge was taken pursuant to Article 44.2.2 which prohibits the State from endowing any religion, but Barrington J also considered Article 42 of the Constitution, and found that there was a positive duty on the State to assist parents, through the education system with the religious and moral formation of their children:
“Article 42.2 prescribes that the parents shall be free to provide ‘this education’ (ie. religious, moral, intellectual, physical and social education) in their homes or in private schools or ‘in schools recognised or established by the State’.
In other words the Constitution contemplates children receiving religious education in schools recognised or established by the State but in accordance with the wishes of the parents.
It is in this context that one must read Article 44.2.4 which prescribes that:- ‘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 Constitution therefore distinguishes between religious ‘education’ and religious ‘instruction’ – the former being the much wider term. A child who attends a school run by a religious denomination different from his own may have a constitutional right not to attend religious instruction at that school but the Constitution cannot protect him from being influenced, to some degree, by the religious ‘ethos’ of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religious persuasion who wishes to attend that school.”
34. This analysis suggests, however, that under the Constitution there is a distinction between “religious education and moral formation” which is a very broad all encompassing term and the much narrower statutory formulation of “instruction” which is used as the basis of exemptions under the 1998 Act, which appears to be limited to formal classes in any subject including religion.