Students not attending Religious Instruction is a condition of State funding
Students are returning to school and many will face the prospect of being forced to take religion class. If they do manage to not participate, they are left sitting at the back of the class. The right to ‘not attend’ is written into the Constitution, it is not a matter of opting out or not participating but of ‘not attending’ religious instruction.
Vast amounts of State resources go into helping religious parents with the religious education of their children, while the constitutional condition for those resources is ignored by Church and State.
Telling families that Religious Education is not Religious Instruction and therefore the right to not attend does not arise has no legal basis. Curriculum Religious Education is an optional subject at junior and leaving certificate. It is schools and teachers that make it mandatory and many force students to take it despite the fact that they are breaching the constitutional right to freedom of conscience and religion of families. It is not up to the Department of Education, Patron bodies, schools or teachers to decide for parents what is or is not against their conscience. It is the right of parents to decide what religous and moral education is suitable for their children under Article 42.1 of the Constitution.
Students not attending Religious Instruction is a condition of state funding
State aid to denominational schools is conditional on students ‘not attending’ religious instruction. Students have a constitutional right to be supervised outside religious instruction and there is a good legal argument for being allocated another subject.
The fact that the state does not vindicate this right is a reflection of their disrespect for minorities and their deference to the Catholic Church. The right to not attend religious instruction is not part of the ethos of schools, it is a condition of their funding. Patron bodies have accepted state funding on this constitutional basis.
Article 44.2.4 of the Constitution states 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.
What the Supreme Court has said
The Supreme Court has already upheld this understanding of the Constitution. In the Campaign to Separate Church and State case they stated that:
These references appear to me to establish two facts. First the Constitution does not contemplate that the payment of monies to a denominational school for educational purposes is an “endowment” of religion within the meaning of Article 44 S.2 s.s.2 of the Constitution. Secondly, the Constitution contemplated that if a school was in receipt of public funds any child, no matter what his religion, would be entitled to attend it. But such a child was to have the right not to attend any course of religious instruction at the school. (page 24)
It is the responsibility of the State to vindicate this constitutional right because it is a condition of State funding. State funding has been given on the condition that minority students have a right to attend denominational schools and not attend religious instruction.