Having religious education in schools is a constitutional right. So is the the right to not attend it.
The courts in Ireland have found that parents have a constitutional right to have religious education and religious formation in publicly funded schools.
In order to remove this right from the Constitution, we would need a referendum. Any legislation that forbids religious education and formation in schools would be unconstitutional.
This is one of the reasons why Atheist Ireland focuses so much on the rights that we have as non-religious parents in the Constitution. We campaign to ensure that these rights are given practical application on the ground.
Those rights include:
- Our children have a right to not attend religious instruction in publicly funded schools (article 44.2.4).
- The state has a duty to respect our philosophical convictions and cannot interfere in our rights in relation to the religious or moral education of our children (Article 42.1).
- When funding schools the state has a duty to have due regard to our rights, especially in the matter of religious and moral formation (Article 42.4).
We do not need a referendum to do this. Nor do we need legislation. All we need is for the Department of Education to administer our constitutional right to ensure our children do not attend religious instruction, to respect our rights as parents, and to have due regard to our rights when funding schools.
Religious parents have a constitutional right to have religious education and religious formation in schools, but we have a constitutional right to ensure our children to not attend it.
We know this because the Supreme Court found that Religious Education cannot be taught to children against the wishes of their parents, and it was in this context that one must look at Article 44.2.4 – the right to not attend religious instruction.
Here are quotes from the courts in Ireland that sanction religious education and religious and moral formation in publicly funded schools
“Nevertheless parents have the same right to have religious education in schools which their children attend. They are not obliged to merely settle for religious instruction.”
Justice Barrington – Campaign to Separate Church and State 1998 – page 27
“The framers of the Constitutional were clearly aware of this when they contemplated the provision of funds for denominational education.”
J. Barrington – Campaign to Separate Church and state case 1998 – page 24
“As was pointed out in the Court’s judgement on the reference the system of denominational education was well known to the framers of the constitution. We know this because they refer to it. Article 42.s.2ss4 prescribers that legislation providing state aid for schools shall not discriminate between schools under the management of different religious bodies nor be such as to affect prejudicially the right of any child to attend a school receiving public money and not attend religious instruction.
J. Barrington – Campaign to Separate Church and State case in 1998 –pages 23, 24
“It therefore appears to me that the present system whereby the salaries of Chaplains in Community Schools are paid by the State is merely a manifestation, under modern conditions, of principles which are recognised and approved by Article 44 and 42 of the Constitution.
J. Barrington – Campaign to Separate Church and State case in 1998 – page 27
“It was not intended to render unlawful at a stroke the system of aid to denominational education, including where appropriate the payment of salaries to members of religious communities, whose duties might extend well beyond religious instruction in the narrow sense to what in Article 42.4 was referred to as “religious and moral” formation of children.
Justice Keane – Campaign to Separate Church and State case in 1998 – page 15
“I would entirely agree with his conclusion that, in any event, they are constitutionally sanctioned, having regard to the recognition in Article 42.4 of the rights of parents in relation to the religious and moral formation of their children.”
Justice Keane – Campaign to Separate Church and State case in 1998 – pages 18,19.
“Article 42.4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
I have underlined the words “religious and moral formation “ to draw attention to the fact that this Article recognises that parents have rights not only to provide for the religious education of their children (sub-paragraph (1) but also rights in the matter of their religious formation (sub-paragraph (4) and that it specifically enjoins the State when providing educational facilities to have regard to both these distinct rights.
The difference between the ordinary meaning of these two concepts is not difficult to identify; broadly speaking, the religious education of a child is concerned with the teaching of religious doctrine, apologetics, religious history and comparative religions, whilst the religious formation of a child involves familiarising the child not just with religious doctrine but with religious practice (by attendance at religious services) and developing the child’s spiritual and religious life by prayer and bible reading and I think that the Constitution should be construed so as to reflect this meaning. In the case of parents who profess the Catholic faith the religious formation of their children involved ensure that their children attend mass and that they pray and receive the sacraments on a regular basis.”
J Costello – High Court – Campaign to Separate Church & State 1996 – page 39, 40
“In effect the state by paying the salaries of chaplains is having regard to the rights of parents vis-a-vis the religious formation of their children and enabling them to exercise their constitutionally recognised rights. If this is the purpose and effect of the payment how can it be said that it is unconstitutional?”
Justice Costello – High Court – Campaign to Separate Church and State case 1996 – pages 40,41
“Article 42.4, in requiring the State to provide for “free primary education”, also places an endeavour, but only that, before the State “to supplement and give reasonable aid to private and corporate educational initiative” and “when the public good requires it” towards “other educational facilities or institutions”. An overall saver in the constitutional text is that the State, in providing for free primary education and in endeavouring to assist post-primary education in various forms, have “due regard … for the rights of parents, especially in the matter of religious and moral formation.” This provision reflects a concern for upholding parental authority; a foundational pillar of the Constitution that accords with Article 41 recognising the family as “the natural primary and fundamental unit group of” Irish society. Hence, society is built around the family.”
Justice Charleton – Burke v Minister for Education – January 2022
“The decision of the Supreme Court in the Campaign to Separate Church and State v. Minister for Education is binding authority and the dicta of Murphy J. concerning the breadth of the parents’ duty, while quite far reaching, is at a minimum persuasive in recognising that parents have rights to provide for secondary and third level education if within their means. ”
Burke v Minister for Education – Court of appeal 2021
“73 There is no doubt, therefore, that the Constitution recognises and protects the freedom of parents to provide education for their children in the home. Article 42.1 has already stated that it is the duty of parents to provide according to their means for the education of their children, which is described in very broad terms as religious, moral, intellectual, physical and social. It follows that parents have a duty to provide for that education, and Article 42.2 expressly provides that such education can be provided in the home. It must also follow that, in any case, where there is no conflict between the members of the family that children have a constitutional interest in receiving the education provided for them by their parents.
It will be necessary to consider later what is comprehended by the concept of freedom in this sub-paragraph, but it seems apparent that the freedom to provide or receive education in the home is protected by the Constitution, so that the family or individual cannot be deprived of it by the State, other than in accordance with the Constitution. It is, in any event, part of the right and duty of parents to provide (and therefore the right of their children to receive) education under Article 42.1, which right the State has guaranteed to respect. The Irish text of Article 42.1 provides an important flavour in this regard:- “… ráthaíonn [An Stát] gan cur isteach ar cheart doshannta ná ar dhualgas doshannta tuistí chun oideachas … a chur ar fáil dá gclainn” which conveys the sense that the State cannot interfere with (cur isteach ar) the right of parents subject to the Constitution to provide education under Article 42.1, a right which Article 42.2 contemplates may take place at home.
O’Donnell – Burke v Minister for Education – Supreme Court 2022