The Civil Registration Act discriminates on religious grounds and undermines human rights

Jane Donnelly reports on the ongoing efforts by Atheist Ireland, including through Freedom of Information requests, to find out the basis on which decisions are taken in implementing the discriminatory aspects of the Civil Registration Act. We are continuing to pursue this issue, and we will publish updates as we get them.

Atheist Ireland believes that that Civil Registration Amendment Act 2012 is based on prejudice and religious discrimination. It discriminates between religious and secular bodies. It also discriminates between secular bodies, as only a body whose principal objects are secular, ethical and humanist (as well as other restrictions) can apply for inclusion on the Register of Solemnisers.

The Government claims that this discrimination has a legitimate aim, which is to ensure that the institution of marriage is protected, so we have tried to find out if there a reasonable relationship of proportionality between the means employed and the aim sought to be realised. What we have found is that this government has just brought in a new law that directly discriminates against the non-religious and undermines their human rights without any ratio of proportionality to their stated aim of protecting marriage.

Equality before the law without discrimination is a basic principle in the protection of human rights. It is a principle worth fighting for as inequality and discrimination undermine human rights. Atheist Ireland campaigns for equality and non-discrimination. We campaign against discrimination in the Equal Status Act and in the Education Act etc., and the Civil Registration Amendment Act is yet another example of how the Irish state undermines the human rights of the non-religious.

Direct discrimination against atheists

Atheist Ireland believes that the religious discrimination in the Civil Registration Amendment Act 2012 is a breach of human rights law. It is direct discrimination and in particular it breaches Article 26 (Equality before the law without discrimination) of the International Covenant on Civil & political Rights.

Article 26 States that:-

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The UN Human Rights Committee has stated that:-

“1. Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights. Thus, article 2, paragraph 1, of the International Covenant on Civil and Political Rights obligates each State party to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 26 not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Protecting marriage from Elvis impersonators

During the debate in the Dail on the Civil Registration Amendment Act (20 December 2012) Minister Joan Burton told the Dail that the reason for this discrimination was as follows:-

“to ensure the institution of marriage is protected by applying a rigorous set of rules regarding the type of body that can be deemed eligible. In this regard, it is important that the criteria should be robust so that the authority to solemnise marriage would be granted only to stable, long-standing and reputable organisations… we must be specific about the criteria because there are places in the United States where the criteria for solemnising are very broad and, as a result, an Elvis impersonator in Las Vegas can perform wedding ceremonies. None of us wants anything like that here. There is all-party agreement on that point.”

So, in order to ensure that the institution of marriage is protected, the government have put in place the following robust criteria to ensure that secular bodies that wish to solemnise marriages are stable, long-standing and reputable. As Religious bodies are not subject to these robust criteria, the government obviously believes that the institution of marriage is more at risk from secular bodies and specifically those whose members dress up as Elvis.

It should be noted however, that despite the fear that discriminatory criteria was needed to protect marriage from Elvis impersonators, they would in fact not be regarded as a secular body for the purposes of the Act as they would presumably be considered a body that has the making of profit as one of its principal objects. This means that despite what the Minister stated the robust criteria cannot be based on any fear that Elvis impersonators would undermine marriage in the state.

Is the Minister seriously suggesting that there are bodies of Elvis impersonators that would define themselves as secular, ethical and humanist? Even if there was such a body, how would forbidding them promoting a political cause protect marriage? Such a body could still be stable, long-standing and reputable notwithstanding the fact that they dress up as Elvis while performing ceremonies.

Different standards for religious bodies

A body can only be a secular body for the purposes of the Act if:-

• it has not fewer than 50 members
• its principal objects are secular, ethical and humanist.
• it is a body that, on the date of its making of an application under section 54 or 57, has been in existence for a continuous period of not less than 5 years,
• it maintains a register of its members.
• it does not promote a political cause.

None of the above applies to religious bodies. Religious bodies are not obliged to be ethical, they can promote a political cause, have less than 50 members, do not need to maintain a register of members and do not need to be in existence for five years. If you are a secular humanist body you are obliged to be ethical but if you are a religious body you are not. The government just accepts that religions are ethical but where it comes to humanism, that is a different matter altogether.

The government obviously believes that marriage must be protected from humanism and therefore must ensure that secular humanist bodies are ethical. Religious bodies can solemnise marriages while including psychic mediums, people who lie to state inquiries, and debt defaulters, but secular bodies must be vetted to prove that they are ethical!

From article by Michael Nugent: “You can legally solemnise marriages in Ireland if you are a psychic medium, tarot card reader, public entertainer, ghost whisperer or ghost buster (Ministers of the Spiritualist Union of Ireland); or if you oversee a culture of covering up child sex abuse, or lie to and positively mislead a state inquiry into child sex abuse, or swear victims of child sex abuse to silence (Bishops of the Roman Catholic Church); or if you default on six-figure debts, or fail to file income tax returns (Pastors of the Abundant Life Christian Centre and Victory Christian Church).”

We would not have the same issue with the word ethical in the Act, if it applied equally to religious and secular bodies and if the state defined exactly what it meant by ethical.

Secular bodies not permitted to solemnise marriages

The following secular bodies are not permitted to solemnise marriages, as none of the following are regarded as a secular body for the purposes of the Act –

• A political party or a body that promotes a political party or candidate.
• An approved body of persons within the meaning of section 235 of the Taxes Consolidation Act 1997.
• A trade union or a representative body of employers.
• A chamber of commerce
• A body that promotes purposes that are –
  Unlawful, contrary to public morality, contrary to public policy, in support of terrorism or terrorist activities, whether in the State or outside the State, or for the benefit of an organisation membership of which is unlawful.

A body can only be a secular body for the purposes of the Act if its principal objects are secular, ethical and humanist. This means that some of the discriminatory criteria in the Civil Registration Amendment Act are specifically targeted at a body whose principal objects are secular, ethical and humanist.

Political cause / Political purpose

When trying to find a definition for the words ‘political cause’ in the Civil Registration Amendment Act, we discovered that for the purposes of the Electoral Act 1997 the Standards in public office (SIPO) have issued an Explanatory Note on what it means to have a political purpose as opposed to a political cause. They define political purpose as:-

“Political purposes means any of the following purposes, namely:
4.     to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome in relation to a policy or policies or functions of the Government or any public authority;
6.     otherwise to seek to influence the outcome of the election or a referendum or a campaign.”

We still do not know the legal difference between promoting a political purpose and promoting a political cause. Under the Civil Registration Amendment Act, you can promote a political cause if you are defined as a religious body, but you cannot promote a political cause if you are defined as a secular body.

According to the government the reasons for this discrimination (robust criteria) is to ensure that the authority to solemnise marriage would be granted only to stable, long-standing and reputable organisations and anyone impersonating Elvis would not be deemed suitable. We still cannot understand how anyone could even think that Elvis impersonators would have a political cause.

The Humanist Association of Ireland and political purpose

The Humanist Association of Ireland has been accepted as a body that conforms to the definition of secular, ethical and humanist in the Act. This means that they do not promote a political cause. It is worth noting here that applications for inclusion on the Register of Solemnisers are to be accompanied by documentary evidence to confirm that the body conforms to the definition of a secular body.

Here are several examples of the HAI promoting the political cause of separation of church and state.

• About the HAI – as published on HAI website
• Campaigns – as published on HAI website
• Political policy document on Equality for the Non-Religious
• Engaging in dialogue process with Irish Government
• Seeking meetings with opposition political parties
• Making sure organs of the state hear what the nonreligious want
• Supporting legislation to permit and regulate abortion
• Lobbying Taoiseach and Minister for Justice
• Appealing to the electorate to vote for secular candidates
• Working internationally on state and church relationships
• Assessing the dialogue process with the Government
• Campaigning for this law was itself promoting a political cause

Despite this, the Humanist Association has  produced documentary evidence that it does not promote a political cause. If the Civil Registration Service accepts documentary evidence, then it must be in a position to ascertain if the documentary evidence will or will not suffice. It therefore must have rules procedures, practices, and guidelines etc., to define what constitutes documentary evidence or else it is making it up as it goes along.

Atheist Ireland’s questions to the Registrar General

In the interests of democracy, Atheist Ireland wants to ensure that the Act is implemented openly and transparently and that all ambiguities are clarified. As you can appreciate we were very curious as to what exactly is meant by political cause, and also what is meant by the word ethical in the Act.

Given that Minister Joan Burton had informed the Dail that “we must be specific about the criteria” we naturally presumed that we would have no problem getting a definition of these words so that we could understand why the government are discriminating on religious grounds and breaching human rights law..

In January, Atheist Ireland emailed three letters to the Registrar General requesting information regarding the operation of the various aspects of the Civil Registration Act. The Registrar General did not acknowledge, or reply to these letters. We then sought the information under the Freedom of Information Act. We requested information under Section 7 and Section 16 of the FOI Act.

Under Section 7 the FOI Act we specifically requested information on any precedents in relation to decisions made to grant or refuse registration under the Act and information on any refusals that were appealed and the result of those appeals.

Under Section 16 of the FOI Act, we asked for information regarding rules and practices in relation to certain decisions of public bodies, with regard to the implementation of the Civil Registration Act including its recent amendment.

We were refused this information on the following grounds:-

Under Section 7,
“..it is the policy of this office under Section 26 (1) of the Freedom of information Act, 1997 not to publish information in relation to decisions made by this office.”

Under Section 16
“The Department of Social Protection, being the department that the General Register Office is assigned, has the link to the Section 16 Manual on which the office of the Civil Registration relies. This can be accessed at “http://www.welfare.ie” www.welfare.ie and there is a link from page two of the homepage of this website to the General Register Office.
This Office does not publish an index of precedents or provide detailed information regarding decisions made by the General Register Office.”

Submission to the Information Commissioner

We had to proceed as far as the Office of the Information Commissioner to get the reasons under the FOI Act for the refusal of the Civil Registration Office to give us the information requested. We were invited to make a submission to the Information Commissioner which you can read in the appendix to this article.

The spirit of the Freedom of Information law

In addition to the above, the Freedom of Information Central Policy Unit in the Department of Public Expenditure & Reform has issued information and guidelines on the implementation of the FOI Act. In their Notice No. 1, they state that:-

“The CPU wishes to advise that practice abroad is to include the broadest possible range of relevant information in the section 16 manual. Departments/Offices may wish to consider such texts when preparing their own material.”

So we now have the Central Policy Unit in the Department of Public Expenditure & Reform recommending releasing the broadest possible range of relevant information and the Minister Joan Burton stating in the Dail that “we must be specific about the criteria”.

Despite the above we have so far been unable to get the information requested, and we still cannot understand the reasons for the discrimination in the Civil Registration Amendment Act and why the government just ignored their obligations under Article 26 of the ICCPR. We still do not understand how the Civil Registration Service makes decisions in relation to the discriminatory elements in the Act and what documentary evidence is needed to ensure that the specific robust criteria is adhered to.

• Can a body, religious or secular have a political purpose under the Electoral Act 1997 while not promoting a political cause under the Civil Registration Amendment Act?
  What political cause would a secular, ethical, humanist body have that could undermine marriage?
• Why are secular bodies required to be ethical when religious bodies have no such requirement.
• What possible political cause could a secular, ethical and humanist Elvis impersonator promote, that could undermine marriage?
• What rules, procedures, practices, guidelines and interpretation are used to determine that a body is promoting a political cause as opposed to a political purpose?
• What is mean by the word ethical in the Act?
• What are the reasons for this direct discrimination and why does the State believe that marriage must be protected from a secular, ethical and humanist body that promotes a political cause?

These questions and many more remain unanswered and lead us to believe that the Civil Registration Amendment Act is based on prejudice and discrimination. The Irish state has a duty to remain neutral and impartial in exercising its regulatory power, in its relations with different religions, denominations and beliefs.

Atheist Ireland believes that the Civil Registration Amendment Act is direct religious discrimination that breaches human rights law as there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. We will continue to campaign for the human right to equality until this state guarantees to all persons equal and effective protection against discrimination.

Appendix – Submission to Information Commissioner

This is the submission that Atheist Ireland made to the Office of the Information Commissioner

We made our request under the FOI Act to the Civil Registration Service in the public interest. We believe that elements of the Civil Registration Act are discriminatory and breach human rights law. The Civil Registrations Act discriminates between religious and secular bodies and that discrimination forbids secular bodies such as Atheist Ireland from inclusion on the Register of Solemnisers.

During the debate in the Dail on the Civil Registration Bill no reason was given as to why religious bodies were permitted to promote a political cause and secular bodies were not. In January this year we wrote to the Civil Registration Service seeking information on the implementation of the Civil Registration Act. We attach these three letters for your information. We never got a response so proceeded to make a request under Section 7 of the FOI Act.

In the meantime we discovered Section 16 of the FOI Act. We requested information under Section 16 from the Civil Registration Service but did not get the information requested. We have since submitted another request for a review by the Information Commissioner with regard to Section 16.

We have a right under the FOI Act to the information requested and believe that it is in the public interest to have the rules, procedures, guidelines etc., which will show how the Civil Registration are making decisions that discriminate against secular bodies.

In their Reply to our Request under Section 7 dated 21st March 2013, the only information released by the Civil Registration Service was the Application under Part 6 of the Civil Registration Act 2004 by a secular body for entry of a member in the Register of solemnisers. This does not give us the information requested and the Civil Registration did not state that they did not have this information. The Civil Registration Service has already made decisions to grant and refuse requests for inclusion on the Registers of Solemnisers so they already have in place rules, procedures, practices, guidelines and interpretation to determine whether or not to include an applicant on the Register.

Under Item 1 and 2 we find it difficult to understand how the Civil Registration Service can even claim that it will investigate any matter in accordance with natural justice considering that the Act itself is discriminatory and breaches human rights law. The Civil Registration Service has not released any rules, procedures, practices, guidelines and interpretation on what it considers is natural justice.

According to the newspaper article (attached), the Humanist association claim that they have been informed by the Government agency that it had concerns about people profiting from solemnising, and this was why it had not acceded to some applications. It is clear that the Civil Registration Service has already refused a secular body on the grounds that they are carrying on a business for the purpose of profit or gain. Despite this the Civil Registration Service claims that natural justice will apply, while not releasing any guidelines, rules interpretation etc., of how it comes to decisions and what it means by natural justice.

In their response to us dated 21st March, the Registrar General states that the definition of a secular body is contained in the application form for registration and the body making an application is requested to provide documentary evidence that it conforms to the definition. We do not understand what the Civil Registration Service will accept as documentary evidence and how it can ascertain if the documentary evidence will or will not suffice if it has no rules, procedures, practices, guidelines etc., on what is acceptable documentary evidence.

Another example of the above is Item 9, where the Civil Registration Service in their reply to our Request stated that it was the responsibility of the applicant body to satisfy the requirements that it does not promote a political cause. Obviously there are requirements to be adhered to as otherwise the applicant body would not have to satisfy them. No rules, procedures practices, guidelines and interpretation have been released to us, which would indicate what requirements an applicant needed to satisfy, to determine what constitutes a body that promotes a political cause.

The Reply to our Request under Section 7 goes on under Item 10 to state that “The Civil Registration Act does not contain any direction as to what constitutes a political cause”. In early April this year the Civil Registration Service accepted an Application by the Humanist Association of Ireland for inclusion on the Register of Solemnisers. As such the Civil Registration Service accepted that the documentary evidence produced in that application was sufficient to satisfy the requirements that it did not promote a political cause.

As the Act does not contain any direction as to what constitutes a political cause, what requirements did the Civil Registration Services require the applicant to satisfy? Unless there are new rules, procedures, guidelines etc., in place since the Response to our Request from the Civil Registration Service on 21st March it is clear that they based their decision to grant the request on some rules, procedures, etc., or else they just made them up for that particular organisation.

In our Request under Section 7 (Item 14/15) we did not refer to Section 45A of the Civil Registration Act. We already know that there have been refusals and appeals and obviously they have not been released. In relation to these Items we would like to refer you to our email of 28th of May 2013. It was reported in the Irish Times that as a policy the Department of Social Protection does not give reasons for refusing Applications for inclusion on the Register of Solemnisers. If the information in our Request under Item 14/15 had been released by the Civil Registration Service, then we would be aware of the reasons the Applicants failed to satisfy to enable them to be included in the Register of Solemnisers.

In the Notes for Religious and Secular Solemnisers available on the website of the Civil Registration Service, the Registrar General must give the reasons for refusing or cancelling an application for inclusion on the Registrar of Solemnisers. Under Section 56 (1) – a – of the Civil Registration Act the Registrar General is obliged to give reasons for refusing an application in writing. The Minister under Section 56 (3) of the Civil Registration Act can amend the decision of the Registrar General on appeal. The Civil Registration Service and the Department of Social Protection cannot refuse to give reasons for refusing applications.

We would also like to point out that in January this year the Standards in Public Office Commission has issued an Explanatory Note for Third Parties. This Explanatory Note defines exactly what is meant by political purpose in the Electoral Act 1997 as amended (attached). It is clear that there is no Government policy in operation forbidding defining what is meant by political purpose or political cause.

In conclusion we would like to point out that if a body is obliged to provide documentary evidence to satisfy the requirement of the Act, then the Civil Registration Service must have some rules, procedures, guidelines etc., on what is acceptable documentary evidence, and that should have been released to us. The only other conclusion is that they are making it up as they go along.