Religion as public good and private choice in Irish constitutional doctrine (original) (raw)

Over the lifespan of the Irish Constitution, there has been relatively little detailed doctrinal development of principles of freedom of religion, Church-State relations, denominational autonomy and so forth. There is nothing akin to the voluminous and intricate case law around the "free exercise" and "non-establishment clauses" of the United States Constitution. On the other hand, certain decisive trends can be observed concerning the status, role and conception of religion itself within the Irish constitutional order. The judicial understanding of religion, and its public role, has been influenced by wider social patterns. In reality, the text of the Constitution is flexible and ambiguous enough to accommodate quite divergent theoretical understandings of religion, its status and importance, and its relation to the State. It can be read, on the one hand, as embracing religion -and perhaps a particular version of it -as an integral aspect of the common good, to be protected and promoted by the State as such. Alternatively, it can be understood, in a more liberal light, as placing religion in the "private" sphere, understood largely as a matter of individual choice rather than as an intrinsic part of the common good. I will argue that, despite some digressions, the Irish case law has evolved towards a more liberal understanding of religion and its relation to the State. This is particularly salient in the context of education, where State support for religious schools is now understood simply as facilitating and vindicating parental choice, rather than expressing any public status for religion as such. Taken in itself, this thesis may seem quite uncontroversial. However, I will also argue that a constitutional understanding of the State simply as a facilitator of religious "choice" -while remaining neutral towards religion itself -introduces some important contradictions. I will argue that since the exercise of religious "choice" in practice is dependent on various resource-based and demographic contingencies -and particularly the exercise of initiative by various voluntary groups -it is difficult to reconcile with the idea of religious "freedom" WORKING PAPER -eoin.daly@nuigalway.ie 2 conceived of as an individual right. It also seems inconsistent with the status and protection the Constitution offers to religion as such.