Protecting the Positive Right to Nonreligious Philosophical Beliefs

The right to freedom of thought, conscience and religion, which is protected under Article 9 of the European Convention on Human Rights, also protects atheists and nonreligious philosophical convictions such as secularism.

The test of whether a personal or collective conviction is to benefit from Article 9 is that it must attain a certain level of cogency, seriousness, cohesion and importance. The European court has already held that secularism is a belief protected by Article 9 of the Convention and that an aim to uphold democratic and secular values can be linked to the legitimate aim of the “protection of the rights and freedoms of others” within the meaning of Article 9.2 of the Convention. (p.35 Hamidovac  v Bosnia and Herzegovina 5th Dec 2017)

Negative and Positive Elements of your Rights

The state has both a negative obligation to refrain from interfering in your rights and freedoms under the Convention, and a positive obligation to secure to you those rights and freedoms.

• Under the state’s negative obligations, you have the right not to practice a religion or to reveal your beliefs, and the right not to act contrary to your conscience and convictions.
• Under the state’s positive obligations, you have the right to act in a way which is inspired, motivated or influenced by, and also intimately linked to, a religion or set of beliefs.
• The State cannot discriminate between religious or philosophical convictions.

However, Irish law gives only minimum protection to the negative rights of atheists and secularists, and it does not at all protect the positive rights of atheists and secularists, instead giving privilege to religious beliefs over nonreligious philosophical convictions.

Education System

For example, in the Education system, the State has a duty to respect the right of all parents to have their children educated in accordance with their religious or atheistic philosophical convictions. That means all parents, not just those of religious majorities in particular areas.

• The negative right is to not be indoctrinated in beliefs contrary to our own. The Constitution allows our children, without prejudice, to not attend religion classes in Irish schools. But that right is often not vindicated in practice. And when it is, it is not vindicated without prejudice.
• The positive right is to the same active help that the state gives to parents of the majority religions. In practice, the State simply ignores this. The State discriminates between religious and philosophical convictions.

In the High Court case in 1996, Campaign to Separate Church and State v Minister for Education, Justice Costello cited the Rights guaranteed to parents under the European Convention and the United Nations. He said that the Constitution had developed the significance of these parental Rights and has imposed an obligation on the State in relation to them. He stated:-

“The parties to the First protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms agreed that States when assuming functions in relation to education “shall respect the rights of parents to ensure such education and teaching in accordance with their own religious and philosophical convictions (Article 2). The Irish Constitution has developed the significance of these parental Rights and in addition has imposed obligations on the State in relation to them.”

Despite the recognition of the courts that the Constitution also protects parents with ‘philosophical convictions’ and that they also have positive rights, successive governments have refused to recognise that they also have an obligation to protect them.

Equal Status Act

As another example, the Equal Status Act protects people from discrimination in the provision of services on a number of grounds, including the religion ground.

But it defines the religion ground as “that one has a different religious belief from the other, or that one has a religious belief and the other has not.”

This means that you are covered if:

• Somebody with a religious belief discriminates against you because you have a different religious belief, or if
• Somebody with a religious belief discriminates against you because you do not have any religious belief.

However, on the face of it, you are not covered if:

• Somebody with a religious belief discriminates against you because you have a specific nonreligious belief; (philosophical conviction)
• Somebody with a nonreligious belief discriminates against because you have a different nonreligious belief (philosophical conviction).

The Constitutional Review Group Report in 1995 were clear that Article 44.2.1 probably extends to philosophical convictions such as humanism or vegetarianism and that this Article broadly corresponds to Article 9 of the European Convention (the right to freedom of religion and belief).

Because the drafters of the Constitution must be presumed to have intended that every word and phrase should carry a specific and separate meaning, ‘freedom of conscience’ must be taken to import something additional to the guarantee of free practice and profession of religion. The Review Group considers that the guarantee probably also extends to philosophical beliefs such as humanism and may possibly also extend to other moral and ethical belief systems (for example vegetarianism). Article 44.2.1° broadly corresponds to the guarantees contained in Article 9 of the European Convention on Human Rights.

The Constitution

Article 44.1 says that the State shall respect and honour religion. In practice, this has been used to justify giving privilege to religious beliefs over nonreligious ones.

But that Article does not prevent the State from also respect and honouring nonreligious philosophical convictions, particularly given that we have signed up to international human rights treaties that give equal status to both types of beliefs under the heading religion or belief and because Article 44.2.1 protects philosophical convictions.

What is the solution?

These are just some examples of how the Irish state discriminates against people with nonreligious philosophical convictions over people with religious beliefs.

Other examples are in our tax codes, charities law, and anywhere else that the law gives privilege to religious beliefs over nonreligious ones.

All of these laws need to be amended to give nonreligious philosophical convictions the same status as religious beliefs.

It may be the case that they could be challenged under Ireland’s international human rights obligations, or it may be that the Oireachtas will just amend them, with or without a Constitutional referendum.

What we need is a re-balancing of rights in our Republic in order to ensure that minorities are protected.

Whatever the eventual outcome, Atheist Ireland will be campaigning on this issue in the coming years.

“File:Courtroom European Court of Human Rights 01.JPG” by Adrian Grycuk is licensed under CC BY-SA 3.0