the Irish for rights

Does the Irish Constitution prescribe a wall between Church and State?

Image of mass cards, via Clerical Whispers blogThomas Jefferson wrote that the First Amendment to the US Constitution erected “a wall of separation between Church & State”. This doctrine of the separation of church and state is taken to work both ways: a secular government should not establish or endow a formal state religion, and religious exercise should be free of state interference. The Irish provisions on this issue are contained in Article 44 of Bunreacht na hÉireann (the Irish Constitution):

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2.1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

2° The State guarantees not to endow any religion.

3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. …

Section 99 of the Charities Act, 2009 (pdf) raises many questions for this Article. It provides

(1) A person who sells a Mass card other than pursuant to an arrangement with a recognised person shall be guilty of an offence. …

(3) In this section … “Mass card” means a card or other printed material that indicates, or
purports to indicate, that the Holy Sacrifice of the Mass … will be offered …

[and] “recognised person” means (a) a bishop … or (b) a provincial of an order of priests … [of the Holy Catholic Apostolic and Roman] Church …

In yesterday’s Irish Times, David Kenny – who is working on a PhD the place of religion in the Irish Constitution in the School of Law, Trinity College Dublin – considers the various issues that have arisen in a current challenge to the constitutionality of section 99:

Judgment expected soon on challenge to Mass card regulations

The High Court recently devoted four days to a case which explored the extent to which a particular religious practice could receive protection from the State.

The High Court will shortly give judgment in the case of McNally v Ireland, a constitutional challenge to section 99 of the Charities Act 2009. … If Mr McNally prevails, it will set a limit on the subtle elision of church and State and the favouring of religion. If he loses, the judgment will join those narrowing the scope of the discrimination guarantee as another indication that the State may constitutionally show significant favour to religion, even one particular religion. Mr Justice John McMenamin is expected to give judgment in coming weeks.

More background: Clerical Whispers blog here, here and here | Mass card sale ban challenged in court | Court fight begins on Mass card monopoly | Challenge to Mass card ban | Suspended priest’s name on Mass cards, court told | In Short – Judgment reserved in Mass card case.

The always-excellent Human Rights in Ireland blog has two wonderful posts on the case, one when it began, and the other picking up Kenny’s Irish Times piece, and Eoin O’Mahony (who has a comment below) has a very thoughtful discussion of this post.

5 Responses to “Does the Irish Constitution prescribe a wall between Church and State?”

  1. Tipster says:

    This doctrine of the separation of church and state is taken to work both ways: a secular government should not establish or endow a formal state religion, and religious exercise should be free of state interference.

    Funny that the meaning of “both ways” is as you set it out. As I read your post, my instinctive reaction to that phrase, before I finished the sentence, was to wonder how ever we could stop a church from interfering in the running of the state.

  2. Eoin says:

    Hi Tipster,

    Thanks for this. I should have been clearer, and emphasised that the wall between Church and State should prevent either side from getting through to control the other: hence, non-establishment prevents Church from having a formal role in State, and free exercise prevents State from have a formal role in Church. But, as you say, it doesn’t prevent one side from commenting on the other; it just means that the opinion of one side does not control the other. So, I should have used language about both sides of the wall rather than both ways. Nevertheless, I take it to be implied by your comment about finishing the sentence that the point was eventually clear enough.

    All the best,


  3. Eoin, thanks for posting this today. I’m interested to read about this McNally case before the courts. However, the emphasis on relying on the legal system to maintain, reconstruct or rebuild the “wall” between church and state is one of the weaknesses of many current discussions about religion and in particular the Catholic faith in the Irish public sphere: its legalism.

    It is in the details of the everyday practices of people and institutional needs of the various parts of the state that we might find less legalism. For example: if the McNally case is successful, will TDs cease opening each session with a prayer? Will those hospitals with a Catholic ethos dismiss those staff who deny certain health rights? On a more mundane level, will there be less interest in apparitions above Knock shrine? Short answer: no.

    I’m sorry to say that the selling of Mass cards is more about commercialism than determining ‘the line’ between faith and the state. Control of one by the other? That’s something that has not even begun to be talked about in this post-Ryan polity of ours.

  4. […] mad and then getting over it I got to the end of the post by Eoin on cearta.ie and thought that we have got some way to go before we fully appreciate the role of religion and […]

  5. […] This post was mentioned on Twitter by Rossa McMahon, Ballyhannon Castle. Ballyhannon Castle said: cearta.ie » Does the Irish Constitution prescribe a wall between …: In yesterday's Irish Times, David Ken.. http://bit.ly/48xvNM […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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