Although the 5th Amendment to the Constitution of Ireland in 1973 removed the special position of the Catholic Church enshrined in Article 44, it did not alter the preamble, which begins:
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,
. . .
Do hereby adopt, enact, and give to ourselves this Constitution.
The article below was, of course, written before the 5th Amendment.
(Father Mathew Record, November 1967, pp. 10-11)
On July 1, 1937, the Irish Constitution was enacted by vote of the people, and on December 29 of the same year it formally came into operation. It opens with an impressive declaration of dependence on God, and a pledge to promote the common good of the citizens. It is important that this preamble should not be regarded as a mere pious platitude but as having paramount significance in the interpretation of the Constitution. It sets the Constitution in a Christian framework, and by its reference to the ‘observance of Prudence, Justice and Charity’ offers a guideline for the enactment and interpretation of legislation.
The Constitution’s provisions for religious liberty are set out in Article 44, as follows:
- The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
- The State recognises the special position of the Holy Catholic, Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.
- The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of the Constitution.
- Freedom of conscience and free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
- The State guarantees not to endow any religion.
- The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
Many points may be raised in regard to these provisions. We may ask, for instance, whether or not the Constitution is morally “neutral” with regard to religion, or whether it passes any moral judgment on religion at all. The answer seems to be that it is not morally “neutral” on the subject of religion. The first subsection of Article 44, quoted above, is a clearly defined moral statement of dependence on God, as is the preamble to the Constitution. Is the Constitution morally “neutral” on the subject of religions? Does it attempt to pass a judgment on the relative merits of the various religions in the country? This brings us to Subsection 2, quoted above.
“Special Position”
Controversy on this Subsection centres around the phrase “special position.” Some have asked whether this implies a juridical recognition of the Catholic Church. That it is not intended to do so is clear both from the enactments of the Oireachtas, and from the decisions of the Courts on cases to which this Subsection applies. However, a problem remains: if the phrase does not imply a juridical recognition, what does it imply? The framers of the Constitution gave their answer to the question in the closing words of the Subsection: – ‘as the guardian of the Faith professed by the great majority of the citizens.’ What precisely does this mean? Does the Constitution merely acknowledge the fact that the majority of the people of Ireland are Catholic? If this is the only meaning, it is surely irrelevant to a Constitution, which, after all, is not a statistical table. Besides, if that is all that is meant, why does the Constitution use a capital ‘F’ for the word ‘Faith’? This goes beyond statistics. We are forced to the conclusion that this Subsection implies, indirectly at least, a moral recognition by the Constitution that the Catholic Church is the one, true Church, and this, I believe, is something outside its scope. The use of the phrase ‘special position’ is not free from ambiguity, and the Constitution would be better without it.
Subsection 3 deals with non-Catholic religious bodies, which the State ‘also recognises.’ One cannot help feeling that this Subsection reveals a certain tendency to relegate these bodies to a secondary position. The fact that they are treated in a separate Subsection suggests this interpretation.
Provision for Others?
A close examination of Subsection 3 brings to mind the question of what provision is made for those religious bodies existing in Ireland after the date of the coming into operation of the Constitution. Provision is only made for those which existed in the country before the Constitution came into effect. What provision is there for Baptists, the Salvation Army, for Seven Day Adventists, for other religious bodies? It is true, of course, that these bodies have never been molested by the State in the exercise of their functions, but this does not excuse a failure to provide for them in the Constitution. The alternative to an express reference to an enormous list of churches is to drop this provision altogether, together with the preceding Subsection. The Constitution should leave out reference to particular churches, that is, it should retain only the first Subsections of Sections 1 and 2, while omitting the two intervening Subsections. The Christian character of the Constitution would not suffer thereby as it is already adequately acknowledged in the Preamble. If the revised version of our Constitution is to be a really Christian and Irish document it must remove anything which could give the impression of partiality to some of its citizens.