The following text is taken by permission from Frank Cranmer’s “Notes on Church and State . . .” – see this introductory note.
The Constitution as adopted in 1937 gave special recognition to the Roman Catholic Church as “the guardian of the faith professed by the majority of the citizens”.  This statement was removed after a referendum in 1972; but the Preamble to the present Constitution, Bunreacht na hÉireann, still 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…
Though Article 44 of the Constitution starts by acknowledging “that the homage of public worship is due to Almighty God” it also provides for freedom of conscience and the free profession and practice of religion and declares that the State guarantees not to endow any religion. Article 44 also prohibits religious discrimination both on a personal level and within the education system and entitles religious denominations to hold property and to manage their own affairs. For the purposes of secular law, religious organisations are voluntary organisations and their internal regulations are regarded by the courts as foreign law whose rules must be proved in evidence if they are to be cited in argument.
Though the churches are regarded as voluntary organisations, primary education is almost entirely denominational and is supported by the State either through direct financial assistance for individual schools or the provision of free transport to take children to the nearest school run by their faith-community. (Casey 2005: 197) The majority of secondary schools have a religious ethos and, again, the Government meets a very high proportion of their building and staff costs. (Casey 2005:199). Given the separationist nature of the Irish Constitution this policy might seem rather surprising – but its ultimate legal basis is Article 44 of the Constitution itself, subsection 4° of which provides that
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 Department of Education therefore provides equal funding to schools of different religious denominations; for example, it funds an Islamic school in Dublin.
Article 40.6.1° of the Constitution states inter alia that
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
Nevertheless, the common law offence of blasphemy was thought to be for all practical purposes defunct – until the then Minister of Justice, Dermot Ahern, decided to put it on a statutory footing by way of an amendment to the Bill which duly became section 36 of the Defamation Act 2009 as follows:
36.—(1) A person who publishes or utters blasphemous matter shall be guilty of an offence and shall be liable upon conviction on indictment to a fine not exceeding €25,000.
(2) For the purposes of this section, a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.
The move caused something approaching outrage. Ahern defended himself on the basis that he was acting in accordance with the express provision of the Constitution; nevertheless, President McAleese consulted the Council of State as to whether the constitutionality of the Bill should be considered by the Supreme Court. The Bill was signed into law on 23 July 2009 and came into effect on 1 January 2010.
-  Article 44.I s 2. S 3 of that Article also made specific reference to the Church of Ireland, the Presbyterian Church, the Methodist Church, the Quakers and the Jewish Congregations, ↩
-  Fifth Amendment of the Constitution Act 1972. ↩
-  State (Colquhoun) v D’Arcy  IR 641. ↩
-  O’Callaghan v O’Sullivan  1 IR 90. ↩
This content last updated 30 October 2011 @ 11:58 am