Atheist Ireland asks President to test constitutionality of new marriage registration law

Atheist Ireland today sent this letter to the President of Ireland:

Dear President,

Yesterday the Dail passed the Civil Registration (Amendment) Bill. We are asking you as President to ask your Council of State for advice on whether to send this Bill to the Supreme Court to test its constitutionality. Our Constitution and laws are not very supportive of freedom of atheists from religious discrimination. However, we are asking you to do so for the following reasons:

• If the Bill is unconstitutional, it should not be signed into law.
• If the Bill is constitutional, then it is in the public interest for this to be clarified, because it is indisputable (and indeed not disputed by the Government) that the Bill discriminates against some citizens on the ground of religion or belief. Furthermore, it both discriminates against nonreligious citizens, and between nonreligious citizens
• Article 40.1 is inconsistent with the principle of non-discrimination, while Article 44.2.3 has to be read subject to the protection of religious interests.
• We suggest that the discriminations in this Bill should be tested against the case law that religious discrimination must be necessary to safeguard or maintain the right to free practice of religion, and the case law that embraces the promotion of social conditions which are conducive to, though not strictly necessary for, the fostering of religious beliefs.

1. 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.

Article 40.1 is inconsistent with the principle of non-discrimination, and there have been many recommendations that it should be changed.
In 1995, the Constitutional Review Group Report recommended change on discrimination to bring Ireland in line with international human rights instruments:

“A list of rights to be considered for express inclusion in the Constitution would include, in addition, to the un-enumerated rights already listed, the following which are contained in the international human rights instruments… A general right to non-discrimination on such grounds as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Articles 2 and 3 CCPR, Article 14 ECHR)… The General Right to non-discrimination should be contained in a revised Article 40.1.”

In 2002, the UN Committee on Economic, Social and Cultural Rights, in its Concluding Observations on Ireland, stated that:

“Concern 16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee’s 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.

Recommendation 27. The Committee also recommends that the All-Party Oireachtas Committee urgently consider amending article 40.1 of the Constitution on equality before the law, in the light of the principle of non-discrimination as set out in articles 2.2 and 3 of the Covenant.”

In 2011, the Irish Human Rights Commission, in its Submission to the United Nations under the Universal Periodic Review, recommended that:

“Equality:
11. The IHRC recommends that a referendum be held to amend Article 40.1 of the Irish Constitution to guarantee equality to all and to proscribe discrimination (direct or indirect) in any area of law on non- exhaustive grounds (such as race, sex, language or religion).”

The European Commission against Racism and Intolerance have raised the issue of Protocol 12 of the European Convention with the State. In their Third Report on Ireland 2006 they state:

“However, a number of recommendations made in the ECRI’s second report have not been implemented, or have only been partially implemented. Ireland has not yet ratified Protocol No. 12 of the European Convention on Human Rights which contains a general prohibition on discrimination.”

Ireland is under increasing pressure to ratify Protocol 12 and will not be able to do so as long as it discriminates against minorities in this manner.

2. Article 44.2.3 The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.

The courts have found that this prohibition have to be read subject to the protection of religious interests, and the tests include (a) if this is necessary to ‘give life and reality’ to the constitutional guarantee of freedom of religion.

Professor Gerry Whyte, in a paper on religion and education for the Irish Human Rights Commission, wrote that:

“The constitutional prohibitions on State endowment of religion and State discrimination on grounds of religious profession, belief or status contained in Article 44 are important elements [in the backdrop to constitutional policy on education]. An important feature of the jurisprudence on these principles to date is that in six of the twelve cases in this area, the courts indicated that these prohibitions have to be read subject to the protection of religious interests.

The earlier cases in this series were concerned with religious practices (Observance of the Sabbath) and decisions of ecclesiastical authorities (Decision of the trustees of Maynooth College) but the more recent cases have broadened this category to embrace the promotion of social conditions which are conducive to, though not strictly necessary for, the fostering of religious beliefs (Employment policies discriminating on grounds of religion).”

In 1997, the Supreme Court that it is constitutionally permissible to discriminate on grounds of religious profession, belief or status if this is necessary to ‘give life and reality’ to the constitutional guarantee of freedom of religion.

“in Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321 the Supreme Court was asked to rule on the constitutionality of, inter alia, ss 12 and 37(1) of the Employment Equality Bill 1996 which purported to allow certain vocational training bodies and certain employers to discriminate on grounds of religion in order to protect their religious ethos. The Supreme Court upheld both provisions on the ground that it is constitutionally permissible to discriminate on grounds of religious profession, belief or status if this is necessary to ‘give life and reality’ to the constitutional guarantee of freedom of religion.”

In 1975, the High Court and Supreme Court found that the State was not allowed to discriminate between a priest and a lay person, both of whom were secondary school teachers, in the payment of incremental salaries. (Mulloy v Minister for Education, [1975] IR 88)

In the High Court, Butler J said, at pp.92-3:

“It seems to me to be clear beyond argument that the terms of the scheme confining it to lay teachers do create a difference and do distinguish between them and teachers of a different religious status, namely, clerics such as the plaintiff. It is also clear that the ground of such discrimination is the difference in religious status.”

This view was affirmed by the whole Supreme Court. Walsh J cleared out of the way one possible source of misunderstanding:

“[Article 44.2.3] in my opinion, does not refer to “profession” in the sense that somebody is a religious in the religious life as a profession and the Irish text of the Constitution makes quite clear that what comes under the heading of “religious profession” is the particular religious faith which is professed by the person in question.’ [P.96]”

He referred to the principle elaborated in the Quinn’s Supermarket case, and said, at pp.96-7:

‘The present case concerns the disposition of public funds on a basis which, if sustainable, enables a person who is not a religious to obtain greater financial reward than a person who is a religious and is otherwise doing the same work and is of equal status and length of service… If that were constitutionally possible it would enable the State to prefer religious to lay people, or vice versa, in a matter which is in no way concerned with the safeguarding or maintenance of the constitutional right to free practice of religion… In my view, the State is not permitted by the Constitution to do this.

The reference to religious status, in both the Irish text and the English text of the Constitution, relates clearly to the position or rank of a person in terms of religion in relation to others either of the same religion or of another religion or to those of no religion at all.

Thus it ensures that, no matter what is one’s religious profession or belief or status, the State shall not impose any disabilities upon or make any discrimination between persons because one happens to be a clergyman or a nun or a brother or a person holding rank or position in some religion which distinguishes him from other persons, whether or not they hold corresponding ranks in other religions or whether or not they profess any religion or have any religious belief, save where it is necessary to do so to implement the guarantee of freedom of religion and conscience already mentioned.”

3. Discriminations in the Bill

The enclosed document, ‘Legislating for Equality In Marriage Registration,’ outlines in detail the discriminations within this Bill.