Religion may be out of core curriculum for primary schools

looksee

And off we go down the Constitution road again. The issue with the constitution is that at all times it provides for freedom of religion. It does not appear to consider that 'no religion' might be relevant. Its ok to be Christian of (almost) any variety, or Muslim, or Jewish but you have to be something, so that that something can be incorporated into school teaching.

The state does recognise the possibility of 'no religion' since it enumerates it in the Census, but it is not acknowledged in the constitution.

Its really rather odd that the constitution guarantees an individual's rights to any form of religious belief, even those that could be dangerous or damaging, but does not allow for people to say 'I want nothing to do with any of it'.

recedite

There is a legal opinion here for those interested (prepared by a barrister)

4.3
Simply put, nothing in the Constitution obliges the State to fund or continue to fund educational establishments which choose to operate discriminatory admissions policies.

GreenFolder2

looksee wrote: »

And off we go down the Constitution road again. The issue with the constitution is that at all times it provides for freedom of religion. It does not appear to consider that 'no religion' might be relevant. Its ok to be Christian of (almost) any variety, or Muslim, or Jewish but you have to be something, so that that something can be incorporated into school teaching.

The state does recognise the possibility of 'no religion' since it enumerates it in the Census, but it is not acknowledged in the constitution.

Its really rather odd that the constitution guarantees an individual's rights to any form of religious belief, even those that could be dangerous or damaging, but does not allow for people to say 'I want nothing to do with any of it'.

There's nothing to say that it doesn't if the courts interpretation is that such a right exists.
A case should be taken where someone's discriminated against because of having no religious beliefs to seek to clarify this.

The Constitution is actually very clear on educational access. The school system appears to not necessarily be in compliance. Those aren't read in, unenumerated rights. On reading the article on religion, it would seem very clear that the schools aren't supposed to be discriminating, were there state funded.

As for unenumerated, court interpreted rights. Those are full constitutional rights. The poster further up the thread is mistaken if they think there are two tiers constitutional rights where one is more important than the other. Once a right is established, it exists.

Also where something was unconstitutional all along but was operating, it's the only area of law where a court ruling can operate retrospectively, as was seen for example when the drugs legislation was deemed to be unconstitutional.

There's no reason to think that just because something is the status quo in a state service like schools that it is necessarily in full compliance with the Constitution.

It's even more unlikely when you consider the schools predate the Constitution and were run by organisations that largely would have (in the past anyway) considered civil law as a minor annoyance and their own quasi legal systems as far more relevant.

Parents impacted by discriminatory admission in state funded schools need to start taking legal action. Otherwise this will not get resolved.

I'm just suggesting that some kind of support and funding could be put in place to ensure they can.

GreenFolder2

looksee wrote: »

And off we go down the Constitution road again. The issue with the constitution is that at all times it provides for freedom of religion. It does not appear to consider that 'no religion' might be relevant. Its ok to be Christian of (almost) any variety, or Muslim, or Jewish but you have to be something, so that that something can be incorporated into school teaching.

The state does recognise the possibility of 'no religion' since it enumerates it in the Census, but it is not acknowledged in the constitution.

Its really rather odd that the constitution guarantees an individual's rights to any form of religious belief, even those that could be dangerous or damaging, but does not allow for people to say 'I want nothing to do with any of it'.

There's nothing to say that it doesn't if the courts interpretation is that such a right exists.
A case should be taken where someone's discriminated against because of having no religious beliefs to seek to clarify this.

The Constitution is actually very clear on educational access. The school system appears to not necessarily be in compliance. Those aren't read in, unenumerated rights. On reading the article on religion, it would seem very clear that the schools aren't supposed to be discriminating, were they're state funded.

As for unenumerated, court interpreted rights. Those are full constitutional rights. The poster further up the thread is mistaken if they think there are two tiers constitutional rights where one is more important than the other. Once a right is established, it exists.

Also where something was unconstitutional all along but was operating, it's the only area of law where a court ruling can operate retrospectively, as was seen for example when the drugs legislation was deemed to be unconstitutional.

There's no reason to think that just because something is the status quo in a state service like schools that it is necessarily in full compliance with the Constitution.

It's even more unlikely when you consider the schools predate the Constitution and were run by organisations that largely would have (in the past anyway) considered civil law as a minor annoyance and their own quasi legal systems as far more relevant.

Parents impacted by discriminatory admission in state funded schools need to start taking legal action. Otherwise this will not get resolved.

I'm just suggesting that some kind of support and funding could be put in place to ensure they can.

looksee

I rather think there would have to be a referendum to change the constitution to give equal rights to people of no religion. The constitution states that the state will not endow any religion, but then hands over the entire education system to religious bodies, and even the ones that are not religious are not non-denominational, they are multi-denominational. I think it would be more than interpretation required to include no religion in a constitution that no-where recognises that this is a possible option.

Hotblack Desiato

Freedom of religion is not just the right to practise a religion, it requires the right not to have other beliefs imposed on you. One does not need to have a religion to require protection from other people's impositions.

recedite

looksee wrote: »

The constitution states that the state will not endow any religion, but then hands over the entire education system to religious bodies.

No, not quite. Successive govts representing the state, and indeed pre-dating the state, did that. The constitution did not prevent it happening (or continuing). But it attempted to protect minorities within the school system from religious indoctrination (in a constitutional provision which has been largely ignored).

GreenFolder2

Hotblack Desiato wrote: »

Freedom of religion is not just the right to practise a religion, it requires the right not to have other beliefs imposed on you. One does not need to have a religion to require protection from other people's impositions.

It's actually likely covered in 44.2

2 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Freedom of Conscience as defined by OED: [mass noun] The right to follow one's own beliefs in matters of religion and morality:
‘a constitution guaranteeing freedom of conscience’"

That includes atheism, agnosticism and anything else really.

The keywords there is GUARANTEED. It doesn't merely acknowledge, recognise etc. So legally, that's about as cast in iron as it comes.

Absolam

looksee wrote: »

And off we go down the Constitution road again. The issue with the constitution is that at all times it provides for freedom of religion. It does not appear to consider that 'no religion' might be relevant. Its ok to be Christian of (almost) any variety, or Muslim, or Jewish but you have to be something, so that that something can be incorporated into school teaching.

. I don't think the fact that the Constitution confers rights on us can reasonable be called an 'issue' to be fair. And you don't have to be something so that it can be incorporated into school teaching; theres no such provision in the Constitution, law, or rules for schools.

looksee wrote: »

The state does recognise the possibility of 'no religion' since it enumerates it in the Census, but it is not acknowledged in the constitution.

. Thee are probably an infinite amount of subjects whose absences aren't remarked on in the Constitution, and there's really no reason they should be, is there?

looksee wrote: »

Its really rather odd that the constitution guarantees an individual's rights to any form of religious belief, even those that could be dangerous or damaging, but does not allow for people to say 'I want nothing to do with any of it'.

It certainly doesn't prohibit them from saying it, so how does it not allow for them to say it? They manifestly do say it....

Absolam

Hotblack Desiato wrote: »

Freedom of religion is not just the right to practise a religion, it requires the right not to have other beliefs imposed on you. One does not need to have a religion to require protection from other people's impositions.

But freedom from religion has already been held by the Courts not to be a right, hasn't it?

Absolam

GreenFolder2 wrote: »

The Constitution is actually very clear on educational access. The school system appears to not necessarily be in compliance. Those aren't read in, unenumerated rights. On reading the article on religion, it would seem very clear that the schools aren't supposed to be discriminating, were they're state funded..

you haven't actually provided any sort of specific argument for how it's not in compliance though, other than wishful thinking for rights that don't exist. Can you provide anything that would show the system isn't Constitutionally compliant, according to the known understanding of the Constitution?

GreenFolder2 wrote: »

As for unenumerated, court interpreted rights. Those are full constitutional rights. The poster further up the thread is mistaken if they think there are two tiers constitutional rights where one is more important than the other. Once a right is established, it exists..

They're certainly full rights, and I'll happily agree they're Constitutional rights if you can find a single legal textbook or judgement that says so. Nor did I say there are tiers; there are rights expressed in the Constitution, and there are unexpressed rights that have been found by the Supreme Court. None of the things you're wishing for belong in either category though, do they?

GreenFolder2 wrote: »

There's no reason to think that just because something is the status quo in a state service like schools that it is necessarily in full compliance with the Constitution.

Other the fact that no one has ever presented a case for their not being? It's not like there aren't people with means out there who would have an interest in changing the system. Can you provide us a list of cases where the Constitutionality of the system has been challenged?

GreenFolder2 wrote: »

Parents impacted by discriminatory admission in state funded schools need to start taking legal action. Otherwise this will not get resolved.I'm just suggesting that some kind of support and funding could be put in place to ensure they can.

That's a pretty wild statement. Perhaps they should seek legal advice first? Though if you're offering to fund people's Quixotic legal adventures, I'm sure you won't be short of takers.

Absolam

looksee wrote: »

I rather think there would have to be a referendum to change the constitution to give equal rights to people of no religion. The constitution states that the state will not endow any religion, but then hands over the entire education system to religious bodies, and even the ones that are not religious are not non-denominational, they are multi-denominational. I think it would be more than interpretation required to include no religion in a constitution that no-where recognises that this is a possible option.

I think people of no religion already have equal rights, so there's probably no need. We've already had the 'endowment' bit before the courts, so we know that's a total red herring when it comes to religious involvement in schools... people are free to have no religion (and as you say are counted in the census as such if they want), they're free to opt their children out of religious education even in religious run schools, they're free to open non religious schools if they want. But as a matter of interest, what would you change in the Constitition that you think would then give people of no religion equal rights to people of religion?

GreenFolder2

There are plenty of cases where the Irish state has been taken to court to establish constitutional rights and rights under European Union Law or to the Europeans Court of Human Rights.

A list of domestic Supreme Court cases of significance show that the Irish constitution is not just a single document, rather its that document and a body of law based around it.

There's nothing "wild" about seeking to have rights recognised by going to law.

The fact that nobody has taken a case to date is probably more reflective of a very homogeneous society that until relatively recently didn't question the status quo in education here or lack of organisation. Lack of cases doesn't mean they aren't possible.


1. 1934
The State (Ryan) -v- Lennon

power of Oireachtas to amend 1922 Constitution


2. 1935
Moore -v- Attorney General of the Irish Free State

personal constitutional rights - ownership of property - jurisdiction of the parliament of the Irish Free State


3. 1939
The State (Burke) -v- Lennon

separation of powers - constitutionality of internment without trial provisions


4. 1947
Buckley -v- Attorney General

personal constitutional rights - right to property - Sinn Féin Funds Act, 1947


5. 1964
State (Quinn) -v- Ryan

powers of the courts as custodians of constitutional rights


6. 1964
People (Attorney General) -v- O Brien

Admissibility of evidence in criminal trial - unintentional violation of the Constitution


7. 1964
Ryan -v- Attorney General

personal constitutional rights - doctrine of unenumerated constitutional rights


8. 1966
People (AG) -v- O Callaghan

criminal law - bail - presumption of innocence - personal constitutional rights - right to liberty


9. 1966
The State (Nicolaou) -v- An Bord Uchtála

adoption - constitutional family is that based on marriage


10. 1970
East Donegal Co-op Ltd. -v- the Attorney General

interpretation of Constitution - presumption of constitutionality of Acts of the Oireachtas


11. 1971
Re Haughey

principles of constitutional justice - fair procedures - Oireachtas powers of inquiry


12. 1971
Byrne -v- Ireland

tort - State has no sovereign immunity from suit


13. 1973
McGee -v- Attorney General

personal constitutional rights - bodily integrity - right to privacy in marriage


14. 1976
The State (Healy) -v- Donoghue

personal constitutional rights - right to legal aid in criminal cases


15. 1980
King -v- Attorney General

validity of statute - trial of offences - incompatibility of offence with provisions of the Constitution


16. 1980
Murphy -v- Attorney General

validity of statute - retrospective effect of law found unconstitutional


17. 1985
State (Trimbole) -v- Governor of Mountjoy Prison

rule of law - personal constitutional rights - right to liberty - deliberate invasion of rights by Executive


18. 1987
Crotty -v- An Taoiseach

executive power - international relations - Single European Act


19. 1990
McGimpsey -v- Ireland

executive power - international relations - constitutionality of agreements between Ireland and UK Government concerning Northern Ireland


20. 1990
People (DPP) -v- Kenny

Admissibility of evidence in criminal trial - violation of the Constitution



21. 1991 Cox -v- Ireland
personal constitutional rights - right to earn livelihood

22. 1992 Attorney General -v- X
personal constitutional rights - right to life of unborn - right to life of mother ? right to travel)

23. 1992 McKinley -v- Minister for Defence
personal constitutional rights - equality - constitutional principles override common law rights

24. 1995 A Ward of Court (witholding medical treatment) (No. 2)
personal constitutional rights - right to life - near vegetative state

25. 1995 McKenna -v- An Taoiseach (No. 2)
separation of powers - public expenditure in referendum campaigns

26. 1999 Laurentiu -v- Minister for Justice
validity of statute - Aliens Act 1935 - deportation

27. 2001 Sinnott -v- Minister for Education
personal constitutional rights - education - separation of powers

28. 2001 The North Western Health Board -v- H.W. & C.W.
personal constitutional rights - bodily integrity - family - welfare of child

29. 2001 T.D. -v- Minister for Education
personal constitutional rights - socio-economic rights - education - separation of powers

30. 2002 Maguire -v- Ardagh
constitutional limits on parliamentary committees' powers

31. 2003 A.O. & O.J.O. -v- Minister for Justice
personal constitutional rights - citizenship - family rights - right to reside - deportation of non-national parents of children who are citizens

32. 2006 A. -v- The Governor of Arbour Hill Prison
validity of actions taken under law subsequently found unconstitutional

Absolam

You know.... I don't think a single one of those cases challenged the Constitutionality of the education system. Did they?

GreenFolder2

Absolam wrote: »

You know.... I don't think a single one of those cases challenged the Constitutionality of the education system. Did they?

You know.... it hasn't been challenged and as I have stated about 4 times already : that does not imply that it is perfectly constitutional or should not be challenged.

A significant number of parents are finding their children cannot get access to schools because of what amounts to state sponsored religious discrimination

The UN has criticised Ireland for not doing anything about this.

There are absolutely grounds for a case. It just hasn't happened yet.

You seem to think that the constitution is not open to interpretation. The above list of cases show it very definitely is a living document.

It's only a matter of time before someone decides to take legal action and it is very, very long overdue.

Anyway there's little point in me repeatedly having to explain this point over and over.

Bristolscale7

Absolam wrote: »

I think people of no religion already have equal rights, so there's probably no need.

Because we know how the last referendum turned out for your crowd.

Absolam

GreenFolder2 wrote: »

You know.... it hasn't been challenged and as I have stated about 4 times already : that does not imply that it is perfectly constitutional or should not be challenged.

Yet you still haven't offered any case for how it could be unConstitutional, given everything we know about the Constitution.

GreenFolder2 wrote: »

A significant number of parents are finding their children cannot get access to schools because of what amounts to state sponsored religious discrimination

Just how many, would you say? Leaving aside that 'what amounts to' is a far cry from 'what is'.

GreenFolder2 wrote: »

The UN has criticised Ireland for not doing anything about this.

. I don't think so. A UN committe has certainly been critical of Ireland's lack of diversity in educational institutions... but that's a little different. And UN Committees pretty much exist to criticise things.

GreenFolder2 wrote: »

There are absolutely grounds for a case. It just hasn't happened yet.

So what are the grounds, and why hasn't it happened yet?

GreenFolder2 wrote: »

You seem to think that the constitution is not open to interpretation. The above list of cases show it very definitely is a living document.

No one is saying it's not a living document, but your list of cases clearly shows that the SC has never simply invented a right because someone wanted; all of its judgements are well founded in the text of the Constitution.

GreenFolder2 wrote: »

It's only a matter of time before someone decides to take legal action and it is very, very long overdue.

. Well, I certainly won't claim I can predict the future as you seem to think you can. But if it's long overdue I can only think there's a good reason no one has taken a case, or even presented an argument in law for there being one. I strongly suspect the reason is there is no case to be made.

GreenFolder2 wrote: »

Anyway there's little point in me repeatedly having to explain this point over and over.

. You haven't really explained it though; an explanation would really require a basis for what you're saying, and so far they only basis you've given us is wishful thinking.

Absolam

Bristolscale7 wrote: »

Because we know how the last referendum turned out for your crowd.

Pretty sure my crowd has had nothing to complain about from referenda for the last few decades, but thanks for taking an interest. Is it relevant to equal rights for people with no religion, or did you just think we were overdue some ad hominem?

GreenFolder2

I suggested taking a case. You suggested you know the outcome of that case before it is even constructed, yet I'm the one predicting the future ?!!?

Absolam

GreenFolder2 wrote: »

I suggested taking a case. You suggested you know the outcome of that case before it is even constructed, yet I'm the one predicting the future ?!!?

I didn't actually. I said it's never been tested in Court because frivolous suits tend not to make it the Supreme Court.

Hotblack Desiato

recedite wrote: »

No, not quite. Successive govts representing the state, and indeed pre-dating the state, did that. The constitution did not prevent it happening (or continuing). But it attempted to protect minorities within the school system from religious indoctrination (in a constitutional provision which has been largely ignored).

It was intended to prevent catholic vs. protestant conflict in the education system, non-christians never mind non religious were not considered.
CoI has a massively privileged status in our education system out of all proportion to the numbers of its nominal or active adherents. Also 'positive discrimination' with state money e.g. school transport. However try getting the same to go to an ET outside your area (if, in fantasy land, a place is actually available) and you'll be told by the DoE where to go.

Michael Nugent

Absolam wrote: »

Yet you still haven't offered any case for how it could be unConstitutional, given everything we know about the Constitution... So what are the grounds, and why hasn't it happened yet?

There is certainly a case to be made, and we in Atheist Ireland have been examining this for some time. Whether or not it would win is of course another matter. The three main practical difficulties are (a) that the courts tend to side by default with the Oireachtas, making the hurdle higher than simply determining what is most consistent with the Constitution, (b) that a parent taking a case could potentially generate extra discrimination against their child in school, and the child would likely be finished school by the time the case ended anyway, and (c) the cost.

One route (not the only one) to a case was described in the report of the 1995 Constitution Review Group, chaired by TK Whitaker and including David Byrne SC, Mary Finlay SC, Dermot Gleeson SC, James Hamilton BL, Gerard Hogan BL, Diarmaid McGuinness BL and Dr Blathna Ruane BL. The Review Group concluded:

“Article 44.2.4° may be thought to represent something of an exception to the general rule contained in Article 44.2.3° that the State shall not endow any religion. Accordingly, if a school under the control of a religious denomination accepts State funding, it must be prepared to accept that this aid is not given unconditionally. Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.

If Article 44.2.4° did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1°”

“In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 44.2.4°. The situation is clearly unsatisfactory. Either Article 44.2.4 should be changed or the school system must change to accommodate the requirements of Article 44.2.4.”

.

Michael Nugent

The Report of the Forum on Patronage and Pluralism concluded:

“The Advisory Group recommends that the introduction to the Primary Curriculum should be revised to ensure that, while the general curriculum remains integrated, provision is made for denominational religious education/faith formation to be taught as a discrete subject.”

The Forum also stated that:

“In order to clarify the constitutional and legal rights of children and parents and to reflect changes to the Rules for National Schools, the Advisory Group recommends that the Minister for Education and Skills should make schools aware of the human rights requirements of national and international law.”

.

Michael Nugent

Absolam wrote: »

I don't think so. A UN committee has certainly been critical of Ireland's lack of diversity in educational institutions... but that's a little different. And UN Committees pretty much exist to criticise things.

There are now ten different sets of conclusions from united Nations and Council of Europe human rights regulatory bodies that Ireland is breaching the human rights of atheist, secular and minority faith members in Irish schools.

And they don't just exist to criticise things. They also encourage and praise States when they are in compliance with human rights obligations.

The most recent observation was from the Council of Europe Commissioner for Human Rights, who visited Ireland late last year. When we met with him (Atheist Ireland, Evangelical Alliance Ireland and the Ahmadiyya Muslim community of Ireland), he too asked us why nobody had taken a legal case.

.

Michael Nugent

Article 42.3.1 of the Irish Constitution states that:

"The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State."

Every day atheist, secular and minority faith parents are legally obliged to send their children to publicly funded National schools with a religious ethos. The European Court found in the Louise O'Keeffe case that the option to home school was not a practical one for her parents.

These schools integrate religion into the curriculum and the daily life of the school and it is impossible for parents to opt out their children. This violates the conscience of many parents contrary to the requirements of Article 42.3.1.

.

Absolam

Michael Nugent wrote: »

There is certainly a case to be made, and we in Atheist Ireland have been examining this for some time. Whether or not it would win is of course another matter. The three main practical difficulties are (a) that the courts tend to side by default with the Oireachtas, making the hurdle higher than simply determining what is most consistent with the Constitution, (b) that a parent taking a case could potentially generate extra discrimination against their child in school, and the child would likely be finished school by the time the case ended anyway, and (c) the cost.

One route (not the only one) to a case was described in the report of the 1995 Constitution Review Group, chaired by TK Whitaker and including David Byrne SC, Mary Finlay SC, Dermot Gleeson SC, James Hamilton BL, Gerard Hogan BL, Diarmaid McGuinness BL and Dr Blathna Ruane BL. The Review Group concluded:

“Article 44.2.4° may be thought to represent something of an exception to the general rule contained in Article 44.2.3° that the State shall not endow any religion. Accordingly, if a school under the control of a religious denomination accepts State funding, it must be prepared to accept that this aid is not given unconditionally. Requirements that the school must be prepared in principle to accept pupils from denominations other than its own and to have separate secular and religious instruction are not unreasonable or unfair.
If Article 44.2.4° did not provide these safeguards, the State might well be in breach of its international obligations, inasmuch as it might mean that a significant number of children of minority religions (or those with no religion) might be coerced by force of circumstances to attend a school which did not cater for their particular religious views or their conscientious objections. If this were to occur, it would also mean that the State would be in breach of its obligations under Article 42.3.1°”
“In summary, therefore, the present reality of the denominational character of the school system does not accord with Article 44.2.4°. The situation is clearly unsatisfactory. Either Article 44.2.4 should be changed or the school system must change to accommodate the requirements of Article 44.2.4.”

.

The case for reinterpreting endowment has been made though, and failed, didn't it? So the Courts won't be agreeing that allowing religious organisations to run State funded schools is an endowment of religion, because they have already ruled it isn't. Article 44.2.4 does provide the safeguards that mean Ireland is not in breach of its international obligations, and its disingenuous to claim that Ireland is not complying with 44.2.4. when the argument is that it might mean people might be coerced by force of circumstances. That's literally 'people aren't forced'. Still,that's not the case GreenFolder2 was offering us though... that case was that there is a Constitutional ground for recourse on a potential de facto breach of the notion that the state won't compel parents to send children to a school that is against their beliefs.

Absolam

Michael Nugent wrote: »

There are now ten different sets of conclusions from united Nations and Council of Europe human rights regulatory bodies that Ireland is breaching the human rights of atheist, secular and minority faith members in Irish schools.

And not one has has said we shouldn't have denominational schools, has it? All the criticism has been directed at the lack of diversity in schools, a lack which can Constitutionally be laid at the door of parents rather than the State.

Michael Nugent wrote: »

And they don't just exist to criticise things. They also encourage and praise States when they are in compliance with human rights obligations.

Would it be fair to say they tend to praise States who go along with their recommendations?

Michael Nugent wrote: »

The most recent observation was from the Council of Europe Commissioner for Human Rights, who visited Ireland late last year. When we met with him (Atheist Ireland, Evangelical Alliance Ireland and the Ahmadiyya Muslim community of Ireland), he too asked us why nobody had taken a legal case.
.

And could anyone give him a good answer?

Absolam

Michael Nugent wrote: »

Article 42.3.1 of the Irish Constitution states that:

"The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State."

Every day atheist, secular and minority faith parents are legally obliged to send their children to publicly funded National schools with a religious ethos. The European Court found in the Louise O'Keeffe case that the option to home school was not a practical one for her parents.
These schools integrate religion into the curriculum and the daily life of the school and it is impossible for parents to opt out their children. This violates the conscience of many parents contrary to the requirements of Article 42.3.1.
.

That's literally not true though, and it frustrates me to see AI offer it up. No one is legally obliged to send their children to any school; the Constitution ensures this. Obliged by laziness, indifference, or just circumstances, plain and simple, sure. But not by law.whether or not it is practical is not the same thing,

Michael Nugent

Absolam wrote: »

The case for reinterpreting endowment has been made though, and failed, didn't it?

Well, we don't know. That case was on the specific issue of funding of chaplains, which was justified on the basis that the State was assisting the religious parents to exercise their rights, and not endowing the church directly.

On the question of religious ethos schools, the Court said that “the Constitution cannot protect the [non-coreligionist child] from being influenced, to some degree, by the religious ‘ethos’ of the school.”

But it never expanded (nor could it, as it was just dealing with that case) on what "to some degree" might mean in other circumstances, outside of the funding of chaplains.

In any case, the Constitutional issue is wider than whether the State is Constitutionally permitted to fund religious-ethos schools. Clearly, it is so permitted. Otherwise, why would the opt-out from religious instruction be in the Constitution?

The Constitutional issue is whether the State is protecting the rights of all citizens, by funding a State school system that provides no options for most parents other than to send their children to such schools.

.

Michael Nugent

Absolam wrote: »

That's literally not true though, and it frustrates me to see AI offer it up. No one is legally obliged to send their children to any school; the Constitution ensures this. Obliged by laziness, indifference, or just circumstances, plain and simple, sure. But not by law.whether or not it is practical is not the same thing,

The European Court found, as a matter of law that Ireland is bound by, that it was not a practical option for Louise O'Keeffe. It said that the State should have provided a practical option. A right has to be legally exercisable in reality, and not just illusory, in order for it to be vindicated.

Michael Nugent

Absolam wrote: »

And not one has said we shouldn't have denominational schools, has it? All the criticism has been directed at the lack of diversity in schools, a lack which can Constitutionally be laid at the door of parents rather than the State.

It's not just at the lack of diversity. It is also at the lack of protection of the rights of minorities within denominational schools.

Absolam wrote: »

Would it be fair to say they tend to praise States who go along with their recommendations?

They praise States who are adhering to their Treaty commitments. They only have to make recommendations when the States are failing to do that.

Absolam wrote: »

And could anyone give him a good answer?

Same as I gave in my first comment on this thread. The three main practical difficulties are (a) that the courts tend to side by default with the Oireachtas, making the hurdle higher than simply determining what is most consistent with the Constitution, (b) that a parent taking a case could potentially generate extra discrimination against their child in school, and the child would likely be finished school by the time the case ended anyway, and (c) the cost.

I think a case will eventually be taken, though. It's just a case of finding the right people with the right legal argument, and being able to fund it.

Bristolscale7

That old 'separate but equal' chestnut...

GreenFolder2

There are just definitely cases to be answered.

This state has acted in breech of its own constitution on many occasions over the decades and didn't just self correct until it was challenged in court.

One cannot simply assume that this isn't possible simply because something is established practice and hasn't yet been challenged.

They're are fairly obvious mismatches between what the constitution sets out and the reality of the education system that parents and children deal with on a day to day basis.

The early National School concept was actually far more open then what it's morphed into over the decades. It simply isn't a public school system.

The simple reality is that a % of Irish families are most definitely compelled through lack of other options to send their children to schools that accept them begrudgingly if all other students of the school's faith have been placed first and then provide education that is still absolutely emersed in religious content and where how that is delivered is pretty much entirely up to individual teachers, principals and boards of management.

People aren't complaining about this stuff because they are trying to undermine the Catholic Church. They are basically being denied public services which they pay for and they are being compelled to use schools they do not agree with.

Just imagine for an moment that your local school were operated by the Pastafarians. You had three schools in the town all of which were run by other orders of pastafarins. Every day class would commence with prayers to the flying spaghetti monster. Some members of staff may spontaneously require prayers multiple times per day. There are statues of him throughout the building. Children would spend inordinate amount of time in certain years preparing for pastafarian religious festivals

Now your Catholic child could go to any one of these schools but only when all the other *normal* pastafarians were accommodated first. If there happened to be any places left over they might consider you.

You could opt out of pastafarian religion classes but your child would be placed sitting at the back of the room with all the other weirdos and given colouring books and would sit out all the regular blessings and so on.

Then when you complained about how you're being excluded people would turn around and say : but you can send your children to one or the Educate Together schools for children of awkwardly non conforming parents ... There's probably over subscribed school located conveniently within 100 miles of your house and sure if that doesn't work why don't you just quit your job and home school?
Or maybe you should setup your own school ?
Or sure send your kid to a church of Ireland school isn't that the same thing?!

Some Catholic parents would even panic about lack of school places and fake an interest in pastafarianism and have their children signed up as pastafarisns just to ensure they had choice of school places in their area.

This is basically what happens to non religious and particularly non catholic families in Ireland.

It's actually very much like the kind of socially acceptable discrimination that went on against Catholics in the 18th and 19th centuries, just turned on non religious minorities instead of a non-conforming majority.

Personally, I feel that it is very hypocritical and disappointing that a country that was founded largely because it felt that its citizens were being treated unfairly on grounds of their ethnicity, culture, religious beliefs, language and so on has turned out to so exactly the same thing to its own religious / non religious minorities ... Different establishment, same treatment of minorities.

PS : I have nothing against Pastafarians. I am simply using their pasta based community for illustrative purposes.

Michael Nugent

Absolam wrote: »

...a lack which can Constitutionally be laid at the door of parents rather than the State.

Constitutionally, under 42.3.2 "the state shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

By contrast, under 42.1, the State "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."

So providing religious education is a right and duty of parents, but it is excluded from the State's constitutional obligations. The State is, however, constitutionally obliged to ensure that all children receive a certain minimum moral, intellectual and social education.

.

Princess Consuela Bananahammock

Michael Nugent wrote: »

Constitutionally, under 42.3.2 "the state shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social."

By contrast, under 42.1, the State "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."

So providing religious education is a right and duty of parents, but it is excluded from the State's constitutional obligations.

Sorry, but where does it refer to religion in either of those articles?

GreenFolder2

Princess Consuela Bananahammock wrote: »

Sorry, but where does it refer to religion in either of those articles?

Possibly where it says :

42.1, the State "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."

Princess Consuela Bananahammock

GreenFolder2 wrote: »

Possibly where it says :

42.1, the State "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."

Ah, my reading glasses have disappeared.

It doesn't actually specify a particular religion, though: if I want my child to be a Pastafarian, does this mean the State is required to provide the means?

Michael Nugent

Princess Consuela Bananahammock wrote: »

Sorry, but where does it refer to religion in either of those articles?

In 42.1.

The State "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."

This was an issue that Atheist Ireland raised with the Taoiseach and Minister for Education when we met them. At the moment, moral education (which the State is obliged to ensure) takes place through religious education.

So if a parent exercises their constitutional right to opt their child out from religious instruction, then the State is failing in its duty to ensure that that child receives a minimum moral education.

The Taoiseach acknowledged this point when he reported to the Dail on his meeting with us. That is why the State is developing the Ethics part of the proposed new course in Education about Religion, Beliefs, and Ethics.

Michael Nugent

Princess Consuela Bananahammock wrote: »

It doesn't actually specify a particular religion, though: if I want my child to be a Pastafarian, does this mean the State is required to provide the means?

No, it is according to the parents' means.

All that the State is obliged to ensure is that the child receives a minimum level of moral, intellectual and social education. Not religious.

GreenFolder2

I just find it very disappointing that we are heading for 101 years since 1916 and we still have a state that actively and systematically discriminates against and disadvantages a significant % of its citizens in the provision of a basic and very fundamental state service.

It's all very well to rant, rave, sing songs and wave flags but a republic is potentially about much more not than just not being British or not being a monarchy.

We have really never developed any kind of idea of an Irish Republic with enlightened values. Rather it just turned into a simple expression of "not a monarchy".

It's a major blind spot in Irish policy making and politics and it's going to become more and more of a social issue as Ireland becomes more and more diverse.

We run the risk of creating all sorts of future social problems if a significant % of a diverse population feel less welcome or less Irish than their establishment counterparts.

It's a social time bomb and we are not doing nearly enough to even recognise it's a problem, never kind defusing it.

recedite

Michael Nugent wrote: »

All that the State is obliged to ensure is that the child receives a minimum level of moral, intellectual and social education. Not religious.

Michael Nugent wrote: »

This was an issue that Atheist Ireland raised with the Taoiseach and Minister for Education when we met them. At the moment, moral education (which the State is obliged to ensure) takes place through religious education.

So if a parent exercises their constitutional right to opt their child out from religious instruction, then the State is failing in its duty to ensure that that child receives a minimum moral education.

The Taoiseach acknowledged this point when he reported to the Dail on his meeting with us. That is why the State is developing the Ethics part of the proposed new course in Education about Religion, Beliefs, and Ethics.

That is very interesting. The parents may provide their own moral and religious education, privately or otherwise through the religious patron. But the state must provide moral and social education.
If the child opts out of religious-moral education in a denominational school, then by rights a Dept. of Education inspector should be sent to the home to ensure the child is getting an ethical-moral education there, otherwise the state fails in its duty.
Alternatively, the state must introduce a mandatory ethics programme independent of the patron's own denominational morality programme, which the child cannot opt out of. Which the state is now doing.

Absolam

Michael Nugent wrote: »

Well, we don't know. That case was on the specific issue of funding of chaplains, which was justified on the basis that the State was assisting the religious parents to exercise their rights, and not endowing the church directly. On the question of religious ethos schools, the Court said that “the Constitution cannot protect the [non-coreligionist child] from being influenced, to some degree, by the religious ‘ethos’ of the school.”
But it never expanded (nor could it, as it was just dealing with that case) on what "to some degree" might mean in other circumstances, outside of the funding of chaplains.

So we had the finding that there was no right to freedom from religion, and that directly funding religious functionaries in a school wasn't an endowment of a religion. Do you honestly imagine that paying for the majority of a service provided by a religious order would constitute a greater degree? I think we can safely say it's nowhere near 'endowment'.

Michael Nugent wrote: »

In any case, the Constitutional issue is wider than whether the State is Constitutionally permitted to fund religious-ethos schools. Clearly, it is so permitted. Otherwise, why would the opt-out from religious instruction be in the Constitution? The Constitutional issue is whether the State is protecting the rights of all citizens, by funding a State school system that provides no options for most parents other than to send their children to such schools?

. What specifically is that Constitutional issue though? The same system provides no options for parents at all; the options are a matter for those who wish to provide them, the State's obligation is simply to fund them without discriminating between them.

Absolam

Michael Nugent wrote: »

The European Court found, as a matter of law that Ireland is bound by, that it was not a practical option for Louise O'Keeffe. It said that the State should have provided a practical option. A right has to be legally exercisable in reality, and not just illusory, in order for it to be vindicated.

I'm a little lost. Didn't the ECtHR find that the State failed in its obligation to protect Ms O'Keeffe from abuse, an obligation it could not avoid simply by not being the direct provider of education? The Supreme Court found that Ms O'Keeffe was not obliged to attend Dunderrow National School, and the ECtHR said that Ms O’Keeffe had no realistic and acceptable alternative at the time other than to attend her local National School, but I can't see where they said that was a failure in (or matter of) law, or that the State had any obligation to provide other educational options? The finding in law was that the State cannot be released from its positive obligation to protect (children from abuse) simply because a child selects one of the State-approved education options, whether a national school, a fee-paying school or, indeed, home schooling.

That Ms O'Keeffe had a right not to be obliged by the State to attend that particular (or any) National School didn't mean the State was under any obligation to provide a means for Ms O'Keeffe to exercise that right, and I can't see where the ECtHR said anything to the contrary. Only that the State still had to protect her from abuse regardless of the way she was educated.

recedite

Absolam wrote: »

The same system provides no options for parents at all; the options are a matter for those who wish to provide them, the State's obligation is simply to fund them without discriminating between them.

That's not true. The state "may" fund private educational endeavour, including religious schools. It is not "obliged" to. If those privately owned schools operate discriminatory admission policies, as many do, the state should not fund them, as that would not be cherishing all the children of the nation equally.

As for the state funding of religious chaplains, that case was heard a long time ago, and the verdict was not unanimous. If the same case was heard today, it could go the other way.

Hotblack Desiato

"Cherishing all the children of the nation equally" appears in the 1916 Proclamation, not in our constitution or even the constitution which preceded it.

It was also clearly a reference to the catholic/protestant/other traditions on the island - not literal children.

NIMAN

Sooner the better imho.

The fact that we do more RE than PE annoys me.

GreenFolder2

NIMAN wrote: »

Sooner the better imho.

The fact that we do more RE than PE annoys me.

And then we wonder why children and adults here are getting so fat and unfit.

The patronage model also means that schools are often ridiculously small. In towns and cities they're often divided by gender, religion, particular religious order etc. The result is tiny, badly resourced primary schools : no libraries, no gyms, no computer facilities, no science facilities, no educational psychological support etc etc and because all schools are more like versions of tiny rural schools, actual small rural schools struggle for funding.

We can't actually afford to provide schools on the basis we are doing it. If we could they would be properly resourced and that clearly is not the case.

Every time you create a new school you've a new principal to pay and all of the associated overheads with buildings and management. Resources are being spread as thinly as possible.

The patronage model has driven they crazy level of fragmentation instead of having well resourced community schools. None of it is about ensuring that we get the best environment to educate children or for teachers to work ...It's all about appeasing various vested interests and religious bodies to keep everything split up and separate.

Effectively we are state funding what amounts to private schools that are created on a totally ad hoc basis without any consideration for the costs or quality of outcomes.

Why are we continuing to do this? I can understand the legacy issues but you would think we could have moved to an open model for all new schools managed locally and run by the Department of Education.

Instead the state basically tied its own hands behind its back and doesn't go near running schools.

I'd also add that NO other state service, including the hospitals that are owned by religious orders operate any kind of faith based priority access.

Can you imagine if a major Catholic ethos hospital operated a waiting list system where public patients with catholic baptismal certificates got skipped ahead while non religious or other religions patients only got treated if the catholic queue was fully cleared.

Or if Trinity gave you 200 bonus CAO points for having. Church of Ireland baptismal certificate.

There would be uproar. Yet, in the school system ... That's grand.

recedite

Hotblack Desiato wrote: »

"Cherishing all the children of the nation equally" appears in the 1916 Proclamation, not in our constitution or even the constitution which preceded it.

Indeed. People tend to assume equality is built into our constitution, but when you look at the actual wording, its a bit weaselly;

Article 40
1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

The first line is grand, but then comes the kind of caveat that Absolam so loves.
Depending on your particular prejudice, you could argue that males and females have a different physical "capacity", people of different coloured skin have different "social functions", and religious schools and hospitals have their own special "moral" function.

Switching from the Constitution to legislation is not much use either, because we find the religious schools having a specific exemption to equality law (the infamous section 7).

Technically then, and surprisingly enough, the state does not properly guarantee equality to all of its citizens.

It could be taken care of easily enough by removing/repealing that caveat in the second half of Article 40.

Absolam

recedite wrote: »

That's not true. The state "may" fund private educational endeavour, including religious schools. It is not "obliged" to. If those privately owned schools operate discriminatory admission policies, as many do, the state should not fund them, as that would not be cherishing all the children of the nation equally.

Well..it is. The State is obliged to provide for education (The State shall provide for free primary education), and it is obliged not to discriminate between religious denominations when doing so (Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations). So even if they do operate discriminatory admissions policies, the State must fund them, as long as it funds others.

recedite wrote: »

As for the state funding of religious chaplains, that case was heard a long time ago, and the verdict was not unanimous. If the same case was heard today, it could go the other way.

But it can't be heard today, as it has already been heard. The judgement stands regardless of wishful thinking.

GreenFolder2

Absolam wrote: »

Well..it is. The State is obliged to provide for education (The State shall provide for free primary education), and it is obliged not to discriminate between religious denominations when doing so (Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations). So even if they do operate discriminatory admissions policies, the State must fund them, as long as it funds others.

I've yet to see a single piece of legal opinon to support that supports that position. Can to provide one? Or, is this just speculation?

I mean, the state could setup an alternative system of open schools, complying with all aspects or the Constitution and it doesn't seem to be under any obligation to fund anything, once those obligations are met. How those obligations are met is not specified.