Freedom of Religion Flashcards
Corway v Independent Newspapers
Barrington J noted that Article 44.1 went beyond the guarantee of freedom of conscience and the free practice of religion by placing a duty on the state to honour and respect religion as such, though the State was not to be the arbiter of religious truth. In Quinn Supermarkets v AG Walsh J indicated that the Constitution reflects a firm conviction that we are a religious people.
McGee v AG
Walsh J opined that it is not correct to say that the Article is a constitutional guarantee of a right to live in accordance with one’s conscience subject to public order and morality, but that what the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience and, in the context of the Article, that means contrary to one’s conscience so far as the exercise, practice or profession of religion is concerned. He further opined that a person “is free to have no religious beliefs or to abstain from the practice or profession of any religion.”
Merriman v. St James Hospital
a Circuit Court judge, although not explicitly referring to the freedom of conscience clause, ordered the reinstatement of a hospital worker who had been dismissed for refusing, on grounds of conscience, to bring a crucifix and candle to a dying patient. It is also clear however that freedom of conscience and the right to profess and practice religion are subject to limitation.
People v. Draper
public order justified the conviction of a man for damaging religious statutes on the basis that he was sent by God. Similarly, in Murphy v. Independent Radio and Television Commission, the ban under The Radio and Television Act 1988 on religious advertising was not viewed as a form of discrimination (under Article 44.2.3) and could not be viewed as an attack on the citizen’s right to practise his or her religion because it is directed at material of a particular class and not a people who profess a particular religion. Murphy was upheld in the ECHR under Article 10 of the Convention owing to the wide margin of appreciation when regulating expression in matters liable to offend personal convictions in the sphere of morals and religion. The court noted that s 10(3) only applied to advertising in the audio visual media.
Quinn Supermarkets v. AG
the Supreme Court held that the guarantee of the free profession and practice of religion could require a distinction to be made on religious grounds. Thus a ministerial order could make special provision for kosher meat shops to trade on Sundays in order to facilitate Jewish observance of their Sabbath. Article 44.2.3 prevents the State from imposing any disabilities or discriminations on the grounds of religious profession, belief or status. In the Quinn Supermarkets case, the Supreme Court held that as the overall purpose of Article 44 was to guarantee the free practice of religion that this warranted some of the exceptional opening hours of Kosher butcher shops on Sundays even though it drew a distinction between the Jewish religion and other religions it did so in order to facilitate people of the Jewish faith observing the Sabbath.
Certain discriminations have violated the clause, In Mulloy v. Minister for Education discrimination in calculating service for salary increments and pension purposes between lay teachers and religious teachers violated the clause. Mulloy also clarifies that “belief” includes non-belief in this context.
Campaign to Separate Church and State v. Minister for Education
Barrington J indicated that the right of a child not to attend religious instruction at a publicly funded school did not protect that child from being influenced, to some degree, by the religious ethos of the school. The overall purpose is to permit the churches to manage their own affairs and property and this includes the right to maintain its religious ethos in employment decisions.
Arising from the foregoing it seems clear that the courts have been clear in so far as freedom of conscience is limited to conscience in the sense of religious conscience only. Canadian Jurisprudence provides that “everyone has the right of freedom of conscience and religion”, however, the Supreme Court of Canada (“SCC”) has only ever heard cases that primarily engage freedom of religion. State level Supreme Courts have considered secular conscientious beliefs.
R v Morgentaler
Wilson J wrote a concurring decision with respect to the constitutionality of the abortion provisions of the Criminal Code. She discusses that conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience. Justice Wilson goes on to state that It seems to me, therefore, that in a free and democratic society ‘freedom of conscience and religion’ should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality. Therefore, it is clear that there exists a line of jurisprudence which recognises a wider meaning to conscience than that related to religion only.
Conclusion
To limit protections in respect of conscience to those related to religion raises religion to a moral plane within our society which presupposes that the only authoritative meaning of morality in decision making is that related to religion, and those only persons holding religiously grounded beliefs should be protected from interference.
It seems that the position of the Irish courts is clear, however, it is also damaging. Strongly held and honourable beliefs deserving protection are not the preserve of the religious. In a pluralist society that recognises the freedom to hold and express religious belief and also not to hold such beliefs, should also recognise the inherent moral ability of the human and as such respect those who are have strongly held beliefs adjudged worthy of protection, whatever the source.
