The Constitutional right to not attend religious instruction (explicitly) and other subjects (implicitly)
Under the Irish Constitution, parents have the explicit right for their children to ‘not attend’ religious instruction in publicly funded schools, and the implicit right for their children to ‘not attend’ instruction in any subject that is against their conscience.
Article 44.2.4 of the Constitution explicitly gives parents the right to ensure that their children do ‘not attend’ religious instruction in publicly funded schools.
It also makes this right to ‘not attend’ a condition of the state funding of schools. Article 44.2.4 is a sub section of the Constitutional right to freedom of conscience and religion.
Article 44.2.4 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.”
The constitutional right to ‘not attend’ religious instruction is a specific right under the Constitution and the fact that it is a condition of the state funding of schools increases its significance.
Article 42.1 of the Constitution does not explicitly state that children can ‘not attend’ instruction in any subject. It states that:
“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.”
However, because the Constitution recognises that parents are the primary educators of their children, the State recognises the right of parents for their children to ‘not attend’ any subject that is against their conscience, notwithstanding the fact that Article 42.1 does not explicitly mention this.
This is reflected in Section 30.2(e) of the Education Act, which states that
“The Minister… shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.”
An example of this is that parents can opt their children out of sex education classes, and some Muslim parents opt their children out of physical education on the basis of conscience. This right is belong to parents and it is not up to Church or State to decide what is or is not against the conscience of parents. It is the duty of the State to vindicate this Constitutional right.
Article 44.2.4 is stronger
The Department of Education and publicly funded schools treat the right to ‘not attend’ religious instruction under Article 44.2.4 as if it was the same as ‘not attending’ under Article 42.1 of the Constitution.
They ignore that the wording of Article 44.2.4 explicitly refers to ‘not attending’ ‘religious instruction,’ and the fact that there would be no need for religious instruction to be explicitly mentioned in the Constitution if it was meant to be treated the exact same as the implicit right under Article 42.1.
The purpose of Article 44.2.4 is to protect the rights of minorities in publicly funded schools. When students exercise the right to ‘not attend’ religious instruction under Article 44.2.4, refusing them supervision outside the religious instruction class, or refusing to offer them another subject, is religious discrimination and breaches the Constitutional rights of parents and their children.