The phrase ‘faith formation in schools’ has no constitutional or legal basis

The phrase ‘faith formation’ in schools is not in the Constitution. Whether you refer to faith formation classes, or faith formation in the general atmosphere of the school, there is simply no Article in our Constitution that uses the term ‘faith formation’.

It is not possible to remove what is referred to as ‘faith formation’ from schools without defining legally what this term means, and taking into account existing Constitutional rights, duties and powers. The Department of Education, Patron bodies and schools have no legal power to change or redefine Constitutional rights.

The recent referendums have shown us that words in the Constitution matter. When people on both sides of the debate talk about ‘keeping faith formation in schools’ or ‘removing faith formation from schools’, we can never be sure what exactly they are referring to.

There is no legal definition to the term ‘faith formation’ and the Education Act 1998 does not refer to the term at all. Nor can we find the term ‘faith formation’ used in the Rules for National Schools.

Claiming that ‘religious instruction’ is known in Ireland as ‘instruction according to the rites of a particular religion’ and therefore ‘religious instruction’ means ‘faith formation’ has no legal or Constitutional basis.

The Court of Appeal found in 2021 (para 191) in the Burke case that:-

 the case law demonstrates that the relationship between parents, the State and the child as envisaged by Articles 40, 41, 42, is a trifecta not just of the participants but of the rule under which constitutional engagement on education must take place; namely rights, duties and powers.

The Education Act 1998 does not refer to opting out of faith formation classes. It says that students have a right to not attend anything that is against their conscience (S. 30-2(e) Education Act 1998). During the debate in the Dail on this section it was stated that it was based on  Article 44.2.4 and Article 42 of the Constitution.

The Supreme Court also said that parents have a Constitutional right under Article 44.2.4 to ensure their children do not attend any religious instruction that is against their own personal conscience. Article 44.2.4 is a sub-section of the right to freedom of conscience.

Article 42.4 of the Constitution refers to religious and moral formation in the context of the funding of schools. It does not refer to ‘faith formation’. The words ‘Religious and moral formation’ under Article 42.4 is more comprehensive than the term ‘faith formation’.

The term ‘religious and moral formation’ under Article 42.4 is not confined to formation in a particular faith. Nor is it confined to religion as it also refers to moral formation. Article 42.4 is a subsection of Article 42 which refers to the inalienable rights of parents in relation to the religious and moral education of their children.

Religions do not have a monopoly on moral formation. The State or Patron bodies cannot decide for parents to promote moral values through religion or develop values to enable their children to see the relevance of religion to their lives and relationships as that is an attack on parental rights under the Constitution.

Article 42.4 states that:-

The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

The Irish version of the Constitution takes precedence and this is how it translates directly:-

Article 42.4 (due regard for rights of parents when funding schools)

• ‘Endeavour’ is expressed as ‘iarracht a dhéanamh’, ‘make an effort’.

• ‘Corporate’ is expressed as ‘cumannta’, ‘communal’.

• ‘In the matter of religious and moral formation’ is expressed as ‘maidir le múnlú na haigne i gcúrsaí creidimh is moráltachta’ (‘as regards the formation of the mind in religious and moral affairs’).

Article 42.4 states that when funding schools the state must have due regard for the rights of parents especially with regard to the formation of the mind in religious and moral affairs.

The Courts have said that religious formation under Article 42.4 is an element of religious education under Article 42.1 and that it must be viewed in the context of Article 44.2.4 (the right to not attend religious instruction).

The Supreme Court also found that religious formation need not be confined to the religious instruction class. For example Chaplains in ETB Community Schools & designated Community Colleges are paid by the State to help Catholic parents with the religious formation of their children, because parents need not settle for religious instruction classes.

The role of the Chaplain is to help to provide this extra dimension to the religious education of the children.  The Supreme Court said that the payment of Chaplains in these schools is the State assisting parents with the religious formation of their children which was recognised and approved by Article 42.4, Article 42.2 and Article 44 of the Constitution. They said that:

In other words the Constitution contemplated children receiving religious education in schools recognised or established by the State but in accordance with the wishes of the parents. (Campaign to Separate Church and State v Minister for Education 1998)

It is therefore not up to the Department of Education, Patron bodies, schools or teachers or any other body to decide for parents what is or is not suitable religious and moral formation, education or instruction for their children. It is not possible to remove what is referred to  ‘faith formation’ from schools without legally defining what it is and what Constitutional and legal rights are engaged.

The Oireachtas has no power to amend the Constitution without a referendum on the issue. The Department of Education has no legal power to amend of redefine Constitutional rights or legal rights. The Oireachtas is not likely to remove ‘faith formation’ from schools when the Education Act 1998 does not even refer to it. What Constituional or legal right is up for amending if the removal of faith formation from schools is sought? These issues do not relate to policy. They are based on Constitutional and legal rights.

These are the reasons why Atheist Ireland is campaigning to ensure that practical application is given to the Constitutional rights that we have in all publicly funded schools. Children  have a Constitutional right to not attend any religious instruction that is against the conscience of their parents, and they have a decent legal argument for access to another subject.