Stop saying ‘opt out’ of religious instruction – the right is to ‘not attend’
There is a right under Article 44.2.4 of the Irish Constitution for students to ‘not attend’ religious instruction in publicly funded schools if that is against the conscience of their parents. This is sometimes informally referred to as the right to ‘opt out’.
However, the explicit right to ‘not attend’ religious instruction is a far stronger right than the vague informal phrase ‘opt out’ which has no legal basis. ‘Not attending’ means physically leaving the classroom, not sitting at the back hearing everything that is being taught.
Referring to it as the right to ‘opt out’ is not a reflection of the Constitution or the Education Act 1998 as neither refer to the right to ‘opt out’. There is a Constitutional right to ‘not attend’ religious instruction. The words ‘not attend’ were not written into the Constitution for nothing.
The framers of the Constitution made a conscious decision to ensure that students had a right to ‘not attend’ religious instruction under Article 44.2.4 of the Constitution. They also made ‘not attending’ religious instruction a condition of state funding.
This supports and is supported by Article 42 of the Constitution, which protects the inalienable right of parents in relation to the religious and moral, intellectual, physical and social education of their children.
As a result of this, the Education Act vindicates the right of parents for their children to ‘not attend’ any subject that is contrary to their conscience. For example some parents want their children to ‘not attend’ sex education or physical and social education.
Parents have this right under the Education Act for their child to ‘not attend’ any subject contrary to their conscience, and the Education Act includes this right because under our constitution it is parents who are the primary educators of their children (Article 42).
Again, this is an explicit right to ‘not attend’. It is not a vague informal right to ‘opt out’.
However, the Constitution treats ‘not attending’ religious instruction more strongly than other subjects, because it specifically names it and links to to State funding of schools.
This is the wording of Article 44.2.4 of the Constitution
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 Irish version of the Constitution takes precedence over the English version. The words ‘Teagasc Creidimh’ under Article 44.2.4 translate directly into ‘religious teaching’. So ‘not attending’ religious instruction under Article 44.2.4 is simply not attending ‘religious teaching’.
The courts have already found that the right to not attend religious instruction under Article 44.2.4 must be read in the context of Article 42, the right of parents in relation to the religious and moral education of their children.
Atheist Ireland is campaigning for the Constitutional rights of students to ‘not attend’ religious instruction. As this right is a condition of state funding this means that students must be supervised outside the classroom or offered another subject.
It would help our campaign to vindicate this right if more people stopped using the vague phrase ‘opt out’ and started using the legally explicit phrase ‘not attend’.