Separation of church and state

In response to my post of yesterday on the report of the Commission on Child Abuse, a number of comments have focused on the issue of the separation of church and state. The concern being expressed, I think, is that the misuse of power and the prevalence of abuse unchecked by any real scrutiny over decades was connected with the failure in Ireland to separate church and state in any meaningful way. It is worth pursuing this further, but in my view (as I shall explain below) this is not the main – or at any rate only – cause of the problem.

The legal standing of churches and religions is regulated under article 44 of the 1937 Irish Constitution, Bunreacht na hEireann. This article provides as follows:

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.
4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 
5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

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.
       4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 
       5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
       6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

There have been a number of cases in which the Irish courts examined the meaning of this article, and its impact in practice. It might be reasonable to summarise the findings in these cases as follows: (i) that no religion or denomination may receive special support or financial assistance; (ii) that no denomination can be accorded any special status; (iii) that no citizen can be ‘compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience’ (Walsh J. in McGee v. Attorney General).

On the other hand the interpretation of these provisions is undermined by the tone of the whole document including its religious references in the Preamble, which dedicates the constitution to ‘the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred.’ In addition, the original wording of article 44 (repealed by referendum in 1972) provided for the ‘recognition’ of the ‘special position’ of the Roman Catholic Church.

These aspects of the Constitution are significant, not for their legal effect (which, it was suggested in a judgement by one Supreme Court judge, was zero), but because they imply and reflected an ambivalence in the national attitude. Ireland might not have been governed, in strict legal terms, by the Roman Catholic Church, but in practice it was much less clear. When Sean MacBridge was elected to Dail Eireann in 1947, his very first act was to write to the then Archbishop of Dublin, John Charles McQuaid, in the following terms:

‘I hasten as my first act, to pay my humble respects to Your Grace and to place myself at Your Grace’s disposal. Both as a Catholic and as a public representative I shall always welcome any advice Your Grace may be good enough to give me and shall be at Your Grace’s disposal should there by any matters upon which Your Grace feels I could be of assistance. It is my sincere hope that Your Grace will not hesitate to avail of my services.’

When a year later the new Fine Gael-led coalition government, of which MacBride was a member, took office, it sent a telegram to the Vatican in which it proposed ‘to repose at the feet of Your Holiness the assurance of our filial loyalty and of our devotion to your August Person.’ This was reflected more recently, as we have just read, in the unwillingness of the Department of Education to address suspicions or allegations of child abuse in Roman Catholic institutions because of the handicap of the Department’s deferential attitude.

In these periods of Irish history, I suspect what was needed in Ireland was not a better legal framework of separation of church and state, but a more emancipated attitude to the relationship. It is perhaps the case that what we had was a national ambivalence rooted in post-colonial problems, which unfortunately created a large group of victims – not just abused children, but arguably women also. It took the country a long time to escape from this position, but arguably that has now been achieved. What we now need to ensure is that the injustices inflicted duiring this time are recognised and, if possible, compensated.

The final victim of all of this is, perhaps, the Roman Catholic church itself. Throughout this period there were also people (including clergy) of compassion and goodwill in the church. Right now that hardly seems to matter, and as the edifice continues to creak and threaten to collapse few of the good things seem memorable to anyone. The final lesson in this is that a deferential attitude by the state and by society to any church is ultimately destructive for the church also. The church will survive, but its position will never be the same again.

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