Decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996
118/97 of 15 May 1997
This section reproduced below is from the judgement of the Court dealing with the ‘religion ground’ test. The full judgement is reported here:
CSCS is posting this section to show the complexity of our constitution provisions dealing with education and religion. One of us lobbied the then President urging her to use her presidential privilege to refer the Bill to the Supreme Court to test its constitutionality. This is the judgement of the court.
THE RELIGION GROUND
The Sections of the Bill relevant to this issue viz Sections 12 and 37 have already been set forth in the course of this decision and it is unnecessary to repeat them.
Summary of Submissions of Counsel Assigned by the Court
Counsel assigned by the Court submit that the provisions quoted are repugnant to the Constitution in that they would, if enacted into law, purport to legalise religious discrimination contrary to the provisions of Article 40 s 1 and Article 44 s 2 of the Constitution and to endow certain religions contrary to the provisions of Article 44 s 2 subsection 2. They say that the sections, if enacted into law, would have the effect of making religion a criterion for employing people, for dismissing them from their employment or for admitting them to vocational training.
Moreover they submit that the form of religious discrimination which the section purports to permit is far wider than anything necessitated by any provision of Article 44 of the Constitution and is totally disproportionate. The reference to religious “ethos” is so vague as not to be justiciable. Each of the religious institutions referred to in Article 37 will therefore be entitled to define its own ethos and thereby to dictate the circumstances in which its staff can be appointed, promoted or dismissed. The result will be to undermine, in an unconstitutional way, the right of citizens who are members of a minority religious denomination or who have no religion to earn their livelihood. Moreover they submit that the Bill refers to “institutions” and is therefore broad enough to cover private hospitals and other institutions which are not institutions maintained by a religious denomination for religious or charitable purposes of the kind contemplated by Article 44 s 2 subsection 5 of the Constitution.
Summary of Submissions of Counsel for the Attorney General
Counsel for the Attorney General submit that insofar as the Bill purports to authorise a religious discrimination or distinction the discrimination or distinction authorised is a form of positive discrimination necessary (and no more than is necessary), to give effect to the provisions of Article 44 of the Constitution. Moreover they submit that the Bill would offend Article 44 of the Constitution if the ban on religious discrimination contained in s 6 of the Bill stood alone without the exception contained in s 37. They deny that the Bill in any way authorises the endowment of any religion. They say moreover that State aid to religious and charitable institutions maintained by various religious denominations is authorised by the Constitution and the kind of distinctions made by the Bill are also authorised by necessary implication. Moreover they say that the institutions referred to in the distinctions under discussion are religious, educational or medical institutions under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values. These bodies will invariably be boards of governors, trustees or guardians under the control or influence of the various religious denominations and are the “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution. Counsel admit that a tension does exist between the right to equality guaranteed by Article 40 s 1, the right to free profession and practice of religion guaranteed by Article 44 s 2 and the right to earn a livelihood guaranteed by Article 40 s 3 of the Constitution, but they submit that the sections under discussion represent a balanced attempt by the Oireachtas to resolve these tensions.
Relevant Constitutional Provisions
Article 40 s 1 of the Constitution provides as follows:-
“1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 44 is entitled “Religion” and reads 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. 1o Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2o The State guarantees not to endow any religion.
3o The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4o 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.
5o 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.
6o 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.”
Some of the provisions of Article 42 (dealing with education) may also be relevant to the present discussion. Article 42 provides, inter alia, as follows:-
“1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.
2. Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.
3. 10 The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2o The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
4. 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 . . .”
Conclusions of Court on Religion Ground
It will be noted that while, in the preamble the “People of Eire” humbly acknowledge their obligations to our Divine Lord Jesus Christ, Article 44 imposes certain duties upon the “State”. These duties are more general and less specific than the obligations acknowledged by the People in the preamble. The duty of the State is to respect and honour religion though no specific religion is identified. The Constitution then goes on to guarantee freedom of conscience and free profession and practice of religion “subject to public order and morality” to every citizen.
It is clear from Article 42 that the State acknowledges that the primary and natural educator of the child is the family. The State accordingly guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children. The State may, as guardian of the common good, require that children receive a certain minimum education, moral intellectual and social. The clear implication is that the religious education of the children is primarily a matter for the parents and parents are free to provide this education in their homes or in private schools or in schools recognised or established by the State. The State shall however endeavour to supplement and give reasonable aid to private and corperative educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard for the rights of parents especially in the matter of religious and moral formation. Legislation, however, providing State aid for schools, must not discriminate between schools under the management of different religious denominations and every religious denomination is to have the right to manage its own affairs and to maintain institutions for religious or charitable purposes.
It is quite clear therefore that the State is entitled to support denominational schools though it is forbidden to discriminate between schools under the management of different religious denominations. It is also clear that Articles 42 and 44 of the Constitution reflect the system of denominational education which in fact existed in Ireland at the date of the coming into operation of the Constitution.
This system does not involve the endowment of any religion. The endowment of a religion implies the selection of a favoured State religion for which permanent financial provision is made out of taxation or otherwise. This kind of endowment is outlawed by Article 44 s 2 subsection 2 of the Constitution. The Constitution does however expressly authorise State aid for schools but forbids the State to discriminate between the schools under the management of different religious denominations or to pass any legislation which would affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. The provision of such State aid across the board to schools maintained by the various religious denominations cannot be regarded as the endowment of any one religion.
Institutions for Religious or Charitable Purposes
Article 44 s 2 subsection 5 provides that every religious denomination is to have the right to maintain institutions for religious or charitable purposes. One can get a clearer picture of what is meant by “religious denomination” if one looks at two subsections of the Constitution which were deleted by the fifth amendment to the Constitution in 1972. Section 1 subsection 2 (now deleted) of Article 44 referred to the special position of the Holy Catholic Apostolic and Roman Church as Guardian of the faith professed by the great majority of the citizens. Subsection 3 (also deleted) went on to provide as follows:-
“The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.”
The term “religious denomination”, was therefore intended to be a generic term wide enough to cover the various churches, religious societies or religious congregations under whatever name they wished to describe themselves.
These various religious denominations may control religious, educational or medical institutions, whether directly or through a board of guardians or trustees and it appears to the Court that these are the religious educational and medical institutions referred to in subsection 1 of Section 37 of the Bill and that they are also governed by the phrase “institutions for religious or charitable purposes” referred to in Article 44 s 2 subsection 5 of the Constitution.
The Court rejects the submission that a private hospital could be a medical institution within the meaning of s 37 subsection 1 of the Bill without being an institution for charitable purposes referred to in Article 44 s 2 subsection 5 of the Constitution. The Court accepts the submission of Counsel for the Attorney General that the term “institutions for religious or charitable purposes” is at least broad enough to cover the four categories of legal charities adopted by Lord Macnaghten in Commissioners of Income Tax v Pemsel  AC 531 and approved by the former Supreme Court in Barringtons Hospital the Commissioners of Valuation  IR 299 and by Keane J in In re Worth Library  2 IR 301. At p 583 of the report Lord Macnaghten stated that:-
“How far then, it may be asked, does the popular meaning of the word “charity” correspond with its legal meaning? “Charity” in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The Trusts last referred to are not less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly.”
The central submission of Counsel assigned by the Court in relation to the religion ground is that Article 37 contravenes the guarantees of freedom of conscience and the free profession and practice of religion contained in Article 44 s 2 subsection (1) and the ban on imposing any disabilities or making any discrimination on the ground of religious profession, belief or status contained in Article 44 s 2 subsection (3). Alternatively, they maintain that the Oireachtas has failed to preserve a proper balance between the rights of members of the various religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of other citizens to equality before the law and to earn their livelihood. Consequently they allege the relevant provisions of the Bill, if enacted into law, would constitute an unjust and disproportionate attack on the rights of these other citizens.
This Court accepts that it is not generally permissible to make any discrimination, or even to make any distinction, between citizens on the grounds of religious profession, belief or status.
This Court has also had to accept that occasions may arise when it is necessary to make distinctions in order to give life and reality to the constitutional guarantee of the free profession and practice of religion. This problem first arose in Quinn Supermarket Limited v Attorney General  IR p 1 where the Court had to accept that certain distinctions should be made in favour of the Jewish congregations arising from the fact that the Jewish Sabbath fell on a Saturday and not on a Sunday. In the course of his judgment, delivering the majority opinion of this Court, Walsh J stated (at p 24 of the report) that:-
“Section 2, subsection (1) of Article 44 of the Constitution guarantees freedom of conscience and the free profession and practice of religion in terms which do not confine these to Christianity and Judaism. It appears to me, therefore, that the primary object and aim of Article 44, and in particular the provisions of section 2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person so practising religion or holding those beliefs to any disabilities on that account, or permit distinctions on the ground of religious profession, belief or status between persons in the State who are free to profess and practice their religion. If however, the implementation of the guarantee of free religion and the practice of religion requires that a distinction should be made to make possible for the persons professing or practising a particular religion their guaranteed right to do so, then such a distinction is not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 section 2, to permit the guarantee against discrimination on the grounds of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
Walsh J returned to the same theme in Mulloy v the Minister for Education  IR p 88 where he stated (at p 96 of the report) —
“As explained in the judgment given in this Court in Quinn Supermarket v the Attorney General  LR p 1, it is not permissible to create differences between persons or bodies or to distinguish between them on the ground of religious profession, belief or status irrespective of whether the difference is to their benefit or to their disadvantage — save where it is necessary to do so for the implementation of the constitutional right to the full and free practice of religion.”
In McGrath and O’Ruairc v The Trustees of Maynooth College  ILRM 166, Henchy J expressed similar views at p 187 of the report where he stated:-
“The constitutional provision invoked here (Article 44.2.30) must be construed in the terms of its purpose. In proscribing disabilities and discriminations at the hands of the State on the ground of religious profession belief or status, the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion. To construe the provision literally, without due regard to its underlying objective, would lead to a sapping and debilitation of the freedom and independence given by the Constitution to the doctrinal and organisational requirements and proscriptions which are inherent in all organised religions. Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them. For such disabilities and discrimination do not derive from the State; it cannot be said that it is the State that imposed or made them; they are part of the texture and essence of the particular religion; so the State, in order to comply with the spirit and purpose inherent in this constitutional guarantee, may justifiably lend its weight to what may be thought to be disabilities and discriminations deriving from within a particular religion.”
It is interesting to note that the American Federal Supreme Court has had to face a similar problem. The American Civil Rights Act of 1964 outlawed religious discrimination in employment. But paragraph 702 of the Act exempted religious organisations from this prohibition. The Plaintiff in the case of the Corporation of the Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v Amos 4 83 US p 327 was a building engineer employed for some 16 years by the Mormon church to work in a gymnasium. He was dismissed because he failed to produce a certificate that he was a member of the Mormon church and eligible to attend its temples. The Court upheld the constitutionality of paragraph of 702 as not violating the guarantees of freedom of religion contained in the first amendment to the American constitution. The reasoning in the concurring judgment of Brennan J is relevant to the present discussion. At p 342 of the report he says:-
“For many individuals, religious activity derives meaning in large measure from participation in a large religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals. Determining that certain activities are in furtherance of an organisations religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself Solicitude for a church’s ability to do so reflects the idea that furtherance of the autonomy of religious organisations often furthers individual religious freedom as well.
The authority to engage in this process of self-definition inevitably involves what we normally regard as infringement on free exercise rights, since a religious organization is able to condition employment in certain activities on a subscription to particular religious tenets. We are willing to countenance the imposition of such a condition because we deem it vital, that, if certain activities constitute part of a religious community’s practice, then a religious organization should be able to require that only members of its community perform those activities.”
It would therefore appear that it is constitutionally permissible to make distinctions or discriminations on grounds of religious profession belief or status insofar — but only insofar — as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
Section 37, subsections (1) and (2) and section 2 of the Bill are an exception to the general rule against discrimination on the religious ground set out in s 6. It is admittedly a balancing between the right of free profession and practice of religion on one hand and the right to equality before the law and the right to earn one’s livelihood on the other. Counsel assigned by the Court however submit that the Oireachtas has got the balance wrong in that section 37, in particular, unduly favours the right to free profession and practice of religion at the expense of the other rights named.
No serious criticism can however be advanced against section 37 subsection (2) which entitles an institution to prefer a particular candidate on the grounds of his or her religion if in fact being of that religion is an occupational qualification for the post in question. The attack has been directed more against subsection (1) which entitles an institution to give more favourable treatment, on the religion ground, to an employee or a prospective employee “where it is reasonable to do so in order to maintain the religious ethos of the institution” or to take action “which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution”.
The use of the words “reasonable” and “reasonably necessary” implies that the test is to be an objective one and that the matter is to be resolved on a case to case basis.
Counsel assigned by the Court point to the use of the word “ethos” in subsection (1) and submit that the religious institution or denomination will state in each case what its “ethos” is and that the test will in fact become subjective. It is true that “ethos” is a vague term and is nowhere defined in the Bill. Chambers English Dictionary gives, inter alia, the following meaning to the word “the distinctive habitual character and disposition of an individual group”. It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the Court and the Court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.
This deals with vocational training and is justified in the same manner as section 37 subsection (1). It first outlaws discrimination and then for the purpose of ensuring the availability of nurses for hospitals and teachers for primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools provides that the prohibition of discrimination on the religion ground is not to apply in respect of:-
“(a) The nomination of persons for admission to the school of nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970, (section 76) (Adelaide and Meath Hospital, Dublin incorporating the National Childrens Hospital) Order 1996 or
(b) Places in a vocational training course specified in an order made under subsection (5).”
Subsection 5 provides that:-
“Where an educational or training body applies to the Minister for Health, in the case of hospitals, or to the Minister for Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).”
Again, and for the reasons already discussed in relation to Article 37 section 1, it appears to the Court that s 12 represents a reasonable balancing between the principle of equality before the law on the one hand and the principle of the free profession and practice of religion on the other hand.
For these reasons the Court rejects the challenge to the Bill based on the religion ground.