The state Religious Education course at second level
At the heart of the objections of atheists/secularists to the state Religious Education course at second level is that it disrespects their philosophical convictions and breaches their human rights.
Atheist/secular families believe that the State is pursuing an aim of indoctrination by not respecting their philosophical convictions as the aims of the course is to contribute to the moral and spiritual development of their children through religious education.
Contributing to the moral and spiritual education of the children of secular parents is clearly not in accordance with Article 42.1 of the Constitution. Can you imagine the outcry if the State was contributing to the moral and spiritual education of the children of religious parents through atheist education?
In order for the children of atheists/secularists to access this Religious Education course they must endure the disrespect of the state for their parents’ philosophical convictions.
Parents can still legally opt their children out of this state Religious Education course as there is an opt out clause in the Education Act 1998 (Section 30 – 2 (e)). Unfortunately many schools make this Religious Education course compulsory notwithstanding the fact that it is still legally possible to opt out of it. The State claims that this course is open to all students and many schools do not accept that there is a right to opt out. The Irish Human Rights Commission in their Report on Religion and Education recognises that their is a legal rights to opt out of this course. Opting their children out of this Religious Education course is a problem for parents and another one is that the state has introduced Religious Instruction as an exam subject which is not accessible to some children.
With this article we will outline how this course fails to protect the human rights of atheists/secular parents and their children and how the state is pursuing an aim of indoctrination by not respecting their philosophical convictions. The Irish Constitution does not refer specifically to the rights of religious parents but protects all parents and their children. If the Irish Constitution does not oblige the state to respect the philosophical convictions of atheist/secular parents and their children then the state is in breach of all its international human rights obligations in relation to the rights of parents and children in education.
1. Human Rights Standards
Some of the stated aims of the Religious Education course at second level is to:-
“To appreciate the richness of religious traditions and to acknowledge the non-religious interpretation of life.”
“To contribute to the spiritual and moral development of the student.”
“To identify how understandings of God, religious traditions, and in particular the Christian tradition, have contributed to the culture in which we live, and continue to have an impact on personal life-style, inter-personal relationships and relationships between individuals and their communities and contexts.”
Acknowledging the non-religious interpretation of life does not constitute ‘respect’ for the philosophical convictions of non-religious parents under Article II of Protocol 1 of the European Convention and the various UN treaties that Ireland has ratified. Contributing to the spiritual and moral development of the children of atheists/secularists through religious education will cause children to face a conflict of allegiance between the school and their family values (ECHR Mansur & Others v Turkey, Sept 2014). The State does not recognise that secular families have any contribution to make to Irish society and personal relationships.
At Junior Certificate level atheism/humanism are mentioned in a section called ‘Challenges to faith’ alongside materialism and fundamentalism. Most students take the course at Junior Certificate level.
Under human rights law states are obliged to respect parents’ convictions in the education system be they religious or philosophical.1 That applies to the European Convention but also all the UN treaties that Ireland has ratified. We will concentrate on the European Convention here given the European Convention on Human Rights Act 2003.
2. Positive Obligation
There is a widely held belief that the positive obligation on the state to respect parents’ convictions only applies to parents with religious beliefs. The rights of atheist/secular parents are viewed as a negative right or in other words the right to opt out. But this view is mistaken. For example the European Court has found that secularism is a philosophical conviction protected by Article 9 and Article II of Protocol 1 of the European Convention.2
This means that there is also a positive obligation on the state to respect the philosophical convictions of secular parents and their children in the education system. An appreciation of this aspect of human rights law is needed to understand what is at the heart of the objections to the state RE course at second level. Having a positive obligation means that the state must do something to protect parents’ convictions. Even calling the course Religious Education raises issues about ‘respect’ for atheists/secular families under Article II of Protocol 1 of the European Convention.
The European Court has stated that the positive obligation under Article II of Protocol 1 (the right to education) gives parents the right to demand from the State respect for their religious and philosophical convictions. (Hasan and Eylem Zengin v Turkey – (Application no. 1448/04) 9th October 2007)
3. Absolute Right
This human right to ‘respect’ is an absolute right, not to be balanced against the rights of others or one that can be gradually achieved. That is another key point as we often hear it claimed that religious parents are in the majority and consequently there needs to be some balance. Under human rights law you cannot balance the ‘right to respect’ of some parents’ convictions against the rights of a majority of parents to their ‘right to respect’, in a particular school. The right to respect is absolute and cannot be overridden by the alleged necessity of striking a balance between the conflicting views involved.3
4. What ‘Respect’ Means
The European Court has defined what it means by respect in relation to Article II of Protocol 1 – the Right to Education.
“The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “opinions” and “ideas”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance.”(Folgero v Norway 29.06.07 para 84 c)4
“The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”5
Pursuing an aim of indoctrination is not respecting parents’ convictions. Acknowledging the non-religious interpretation of life does not constitute respect for parents’ philosophical convictions under the European Convention and consequently the state is pursuing an aim of indoctrination. Contributing to the moral and spiritual development of the children of atheists/secularists through religious education is disrespect. Any reading of the Religious Education course leaves one with the understanding that there is no appreciation or respect for the philosophical convictions of atheists/secular families.
A key point in understanding the issues regarding ‘respect’ is that the standard under human rights law is far greater than is accepted as the norm in Ireland. This is where a lot of tension arises and the best way to overcome this is just to apply human rights standards.
5. Combining various Courses
Combining the state Religious Education course with another course such as the Guidelines for the Faith Formation and Development of Catholic students is not permitted given the judgement in the Folgero case at the European Court.
The European Court found that expecting parents to identify the areas of the course that did not respect their philosophical convictions was an unacceptable burden and also put parents in the position that they had to reveal their convictions. This raises issues under Article 9 of the European Convention. Under Article 9 of the European Convention, individuals have the right not to be obliged to reveal their religious and philosophical convictions even indirectly.
In order to protect the rights of all parents any course of this nature must be delivered in an objective, critical and pluralistic manner.6 This is a key human rights principle, the UN uses the term ‘neutral and objective’. Differentiated teaching would not suffice as the European Court stated that this was not consonant with parents’ right to respect for their convictions under Articled II of Protocol 1 .7
In addition to the above is the Grzelak V Poland 8– (Application no. 7710/02 -June 2010) case at the European Court which has implications in offering the state RE course as an exam subject as religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person’s lifetime .9
6. Toledo Guiding Principles
The Toledo Guiding Principles are based on human rights law and at the heart of these principles is the ‘right to respect’ for parents’ convictions. The state RE course cannot possibly be in accordance with those principles when it disrespects the philosophical convictions of atheists/secular parents. It only acknowledges the non-religious interpretation of life and contributes to the moral and spiritual development of the children of atheists/secular families through religious education. The Catholic Church has rejected the Toledo Guiding Principles.
7. Moral and Spiritual Development
Schools are obliged under Section 9 (d) of the Education Act 1998 to:-
“promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school”.
In the debate on the Education Act 1998 in the Seanad on Section 15 10 (which also refers to the word ‘spiritual’), a question arose as to whether the word ‘spiritual’ applied to atheists. In reality most atheists would not regard themselves as being spiritual, but regardless a discussion ensued based around romantic poets, and it was agreed that this section of the Education Act applied to atheists as well and that spiritual values did not mean religious values. The then Minister for Education Michael Martin stated that:-
“Senator Ryan asked me to explain the difference between spiritual and religious. I believe one can be spiritual without being religious. I would argue that a person could have strong spiritual values and not be a member of an organised religion or be an atheist. A person could also be religious and not spiritual. Many religious people are also very spiritual.”
There was no suggestion that any school could promote the moral and spiritual development of the children of atheists/secularists through religious education and it seems clear that the word ‘spiritual’ does not refer in particular to religion. In fact given the obligation on Boards of Management under Section 15 2 (e) of the Education Act to have respect and promote respect for the diversity of values, beliefs and ways of life of society, it seems clear that it actually breaches the Act to promote the spiritual and moral development of the children of atheists/secularists through religious education even in schools that have a religious ethos.
The basis of secularism is the separation of church and state and promoting the spiritual and moral education of the children of atheists/secularists through religious education is indoctrination. This behaviour undermines pluralism the basis for any democracy. In addition it breaches parents’ inalienable right to respect for their convictions under Article 42.1 of the Constitution.
8. Equal Status Act
Cognisance must also be taken of Section 7 2 (b) of the Equal Status Act which obliges educational establishments not to discriminate in “the access of a student to any course, facility or benefit provided by the establishment.”
Given that atheists/secularists and the non-religious in general can only access the state Religious Education course by suffering disrespect for their philosophical convictions this obviously raises issues with regard to discrimination on the grounds of religion under the Equal Status Act.
9. No Effective Remedy
The reason why these issues have not come before the courts can be understood by a reading of the Louise O’Keeffe case at the European Court. There is no effective remedy (Article 13 of the European Convention) for parents and children to vindicate their human rights in Ireland.
In 2010 when Atheist Ireland raised these issues with the National Council for Curriculum and Assessment we were informed that they considered the course to be up to human rights standards. It is difficult to understand how they considered that it was up to human rights standards as even a cursory glance at human rights law would lead one to the understanding that in order to respect the philosophical convictions of the non-religious you cannot refer to atheists as a challenge to faith, mention them alongside materialism and fundamentalism and promote the moral and spiritual development of their children through religious education.
Since the O’Keeffe case at the European Court the state is now responsible for the protection of the rights guaranteed under the European Convention in all schools and they cannot absolve themselves of that responsibility.
The state Religious Education course is not up to human rights standards, does not comply with the Toledo Guiding Principles and disrespects the rights of atheist/secular parents under Article 42.1 of the Constitution.
1 Article 2 of Protocol 1 of the European Convention reads:-Right to Education “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
2 In Lautsi v Italy ((App No. 30814/06) 18th March 2011) the European Court found that secularism is a conviction within the meaning of Article 9 (the right to freedom of thought, conscience and religion) and Article II of Protocol 1 (the right to education).
The Court stated that:-“58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect ‘in a democratic society’”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education. “
3 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-57455 CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM, judgement 1982. “The Court is unable to accept the submissions. (a) Whilst the adoption of the policy referred to clearly foreshadows a move in the direction of the position taken by the applicants, is does not amount to “respect” for their convictions. As is confirmed by the fact that, in the course of the drafting of Article 2 (P1-2), the words “have regard to” were replaced by the word “respect” (see documents CDH (67) 2, p. 163) the latter word means more than “acknowledge” or “taken into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see mutatis mutandis, the Marckx judgment of 13 June 1979, series A no. 31, p. 15, par. 31). This being so, the duty to respect parental convictions in this sphere cannot be overridden by the alleged necessity of striking a balance between the conflicting views involved, nor is the Government’s policy to move gradually towards the abolition of corporal punishment in itself sufficient to comply with this duty.”
4 (c) Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme (see Kjeldsen, Busk Madsen and Pedersen, cited above, p. 25, §51). That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the “functions” assumed by the State. The verb “respect” means more than “acknowledge” or “take into account”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “opinions” and “ideas”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, cited above, pp. 2323-24, §§ 25 and 27, and Campbell and Cosans, cited above, pp. 16-17, §§ 36-37).
5 Folgero v Norway 29/06/207 para 84 “(h) The second sentence of Article 2 of Protocol No. 1 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”
6Folgero V Norway 29.06.07 para 84(h) The second sentence of Article 2 of Protocol No. 1 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner.
7 100.” In light of the above, the Court finds that the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from making such requests. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced by differentiated teaching. This could hardly be considered consonant with the parents’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” (see Öcalan v. Turkey [GC], no. 46221/99, § 135, ECHR 2005 ). “ Folgero v Norway 29.06.07
8Grzelak V Poland “86. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom of thought, conscience and religion in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005 XI).
87. The Court reiterates that freedom to manifest one’s religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs (see, Alexandridis v. Greece, no. 19516/06, § 38, ECHR 2008 …, and, mutatis mutandis, Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 76 in fine, ECHR 2007 XI). The Court has accepted, as noted above, that Article 9 is also a precious asset for non-believers like the third applicant in the present case. It necessarily follows that there will be an interference with the negative aspect of this provision when the State brings about a situation in which individuals are obliged – directly or indirectly – to reveal that they are non-believers. This is all the more important when such obligation occurs in the context of the provision of an important public service such as education.”
9 “92. The Court takes the view that the provisions of the Ordinance which provide for a mark to be given for “religion/ethics” on school reports cannot, as such, be considered to infringe Article 14 taken in conjunction with Article 9 of the Convention as long as the mark constitutes neutral information on the fact that a pupil followed one of the optional courses offered at a school. However, a regulation of this kind must also respect the right of pupils not to be compelled, even indirectly, to reveal their religious beliefs or lack thereof. 93. The Court reiterates that religious beliefs do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person’s lifetime.” Grzelak V Poland 2004 ECHR.
10 http://historical-debates.oireachtas.ie/S/0157/S.0157.199811250005.html (476)