Re-evaluating the purpose of churchstate separation in the irish constitution: the endowment clause as a protection of religious freedom and equality

AuthorEoin Daly
PositionBCL (Law and French) (NUI), PhD Candidate, University College Cork
Judicial Studies Institute Journal [2008:2
In hosting this reception, the Government is reflecting the
honour which is due to the place of religion and of faith
communities in our society. There are those who would
argue that religious belief should be confined to the private
domain, as a matter of purely personal choice and practice
… That is not my position, nor that of my
Government. Neither is it one of privileging religion and
religious organisations … The proper stance of the State
towards the Church and faith communities should be one of
engagement and respectful dialogue. The State must
acknowledge and recognise the spiritual dimension of its
citizens. It must see as legitimate … the importance of their
religious faith for so many of our citizens.1
The guarantee contained in Article 44.2.2º of the
Constitution – that “the State guarantees not to endow any
religion” – may be regarded as one of the most under-exploited
provisions of the Constitution. Given the contentious nature of the
Church-State relationship,2 and the historically close relationship
* BCL (Law and French) (NUI), PhD Candidate, University College Cork.
Any queries can be addressed by email to The author
wishes to acknowledge the support of the Irish Research Council for the
Humanities and Social Sciences.
1 From an address delivered by the former Taoiseach, Bertie Ahern, at a civic
reception in Dublin Castle held to honour the elevation to the status of Cardinal
of a senior Roman Catholic cleric, Seán Brady, 4th February, 2008. The full
text of the address is available at
2 Clarke, Church and State: Essays in Political Philosophy (1984).
2008] Church-State Separation in the Irish Constitution 87
of the Irish State to the Roman Catholic Church,3 the extent to
which the prohibition on religious endowment has essentially lain
dormant is striking. However, this is perhaps unlikely to remain
the case in light of changing social circumstances. In jurisdictions
such as the United States, which has historically had a more
religiously diverse population than Ireland, issues surrounding the
Church-State relationship have generated a great deal of
litigation. The increasing diversity of religions present in this
jurisdiction may plausibly lead to greater State involvement with
religious organisations in various contexts, giving rise to
constitutional implications particularly where such instances of
State involvement in religion may confer some benefit, whether
selective or otherwise, on religious groups. A recent example of
such Church-State entanglement in the United Kingdom, which
would undoubtedly raise weighty constitutional questions,
if transposed to Ireland, is the funding by the British State of a
board of “moderate” Muslim theologians in order to combat
religious extremism.4 The above comments by the former
Taoiseach, as well as recent examples, discussed below, of a
willingness to financially support religious groups such as the
Orange Order, suggest that such Church-State questions may
plausibly arise in Irish Courts. As Casey notes, these issues
“await authoritative resolution by the Supreme Court”.5
The sole Supreme Court ruling to have issued an
authoritative interpretation of the endowment clause has
significantly restricted its scope, at least in terms of its application
to public education. The purpose of this article is to propose a
purposive, more expansive interpretation of the endowment
clause – in view of the underlying purpose of constitutional
Church-State separation in upholding religious equality and
liberty. Accordingly, it will focus on the potential of the
endowment clause to protect individual constitutional rights by
regulating the involvement of the State with religious bodies.
3 Whyte, Church and State in Modern Ireland (1980).
4 See “New Board of Imams to Tackle Extremists”, The Times, 3 July 2008.
5 Casey, Constitutional Law in Ireland, p. 693.

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