By: Eoin Daly
Published: June 2012
Publisher: Clarus Press
Country of Publication: Ireland
Religion features prominently in Irish history and politics. Its peculiar legal status represents one of the distinctive features of the Irish constitutional tradition.
The 1937 Constitution accords religion a central position as an anchoring point of national identity, yet also includes ostensibly strong guarantees of freedom of conscience and religion, and of equality on religious grounds, that are typical of liberal-democratic constitutional systems.
It synthesises competing theories and models, tentatively affirming religion’s public status, yet committing it to the “private sphere” for most purposes. For the most part, the historically close relationship between the State and the Catholic Church found no clear mandate in the constitutional text, which, contrary to prevailing perceptions, imposes a limited form of Church-State separation – although the exact boundaries it imposes remain unclear.
More specifically, the legal principles and doctrines relating to religious practice are ambiguous and underdeveloped, particularly in issues surrounding religious freedom and denominational autonomy. The extent to which the Constitution protects religious activity from state interference has never been decisively resolved; additionally, constitutional consideration underlie resurgent, contemporary controversies in the field of Church and State – particularly in the recent public debate on the role of religion in schools.
Accordingly, Religion, Law and the Irish State examines the constitutional framework governing state and religion in the broader context of the history, politics and theory of the Church-State relationship. From a lawyer’s perspective, it provides an account of the case law and doctrine in specific areas including religious freedom, religious equality, denominational autonomy and Church-State separation, while also giving these subjects a comparative and theoretical treatment.
For those approaching Church and State from different perspectives – including historians, political scientists, sociologists and theologians – it offers an accessible, contextual account of the constitutional dimensions of the State-religion relationship. It explores the constitutional provisions as an expression of, but also a potential fetter upon, the evolving social and political role of religion.
Introduction: The Elusive Jurisprudence of Church and State
The Evolving Status of Religion in the Constitutional Order
I. Religion and constitutional identity in independent Ireland
II. The influence of religion in the drafting of the Constitution
III. Religion as an interpretive resource in constitutional adjudication
IV. The secularisation of constitutional discourse and constitutional adjudication
Religious Freedom in Irish Law: Between Neutrality and Accommodation
I. The theoretical bases of religious freedom
II. Defining religious freedom in law: analytical and conceptual dilemmas
III. Statutory exemptions for religious practices: theoretical and practical obstacles
IV. The embryonic Irish jurisprudence on religious freedom
V. Exploring potential uses of religious freedom in Irish law
VI. Defining the spheres of protected activity and belief
Equality, Discrimination and Religious Freedom
I. The primacy of religious freedom over non-discrimination: the genesis of the doctrine
II. The conceptual dichotomy of religious freedom and non-discrimination in the school enrolment context
II. Religious discrimination in employment
III. Religious discrimination across public and private spheres
Religious Freedom Under the Patronage Model in Irish Education
I. The “patronage” model: historical context and constitutional framework
II. The constitutional basis for the integrated curriculum: a “right” to denominational education?
III. Exploring the “balance” of religious freedom rights in education
Inequality, Power and School Choice: Religion and the Patronage Model
I. The limited scope of “pluralism” under the patronage model
II. The disparity between formal equality for religious groups, and equal religious liberty for individuals: exploring the criteria for school recognition
III. Pluralising the patronage model: the limited horizons of reform
The Constitutional Separation of Church and State: Prohibitions on the Establishment and Endowment of Religion
I. Endowment of religion in the context of education: the significance of the Campaign decision
II. Criticisms of the Campaign ruling
III. Religious freedom, equality and Church-State separation: a purposive interpretation of the endowment clause
IV. The insufficiency of formal neutrality in State support of religions
V. The constitutionality of the congregational indemnity agreement 2002
Legislative Intervention in Religious Function: Exploring the Constitutional Value of Denominational Autonomy
I. Denominational autonomy as a constitutional value: some conceptual ambiguities
II. A legislative “buttress” for religious function: the incongruity of the Mass Cards law
III. The More Stringent Requirement of Religious “Neutrality” in United States Constitutional Law
IV Scrutinising McNally v Ireland: is the “Mass cards” law constitutional?
V. Between neutrality and recognition: legislative intervention in religion and the concept of religious freedom in Irish law
Blasphemy in Irish Law
I. The liberal interpretation of constitutional blasphemy law in the Corway judgment
II. The pluralisation of blasphemy law in the Defamation Act 2009
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