The Supreme Court and the School Chaplains Case

• Author: Réndn McCrea
• Position: Junior Sophister Law student, Trinity College, Dublin
• Pages: 19-28

THE

SUPREME

COURT

AND

THE

SCHOOL

CHAPLAINS

CASE

RONAN

MCCREA*

In

the

popular

mind

the

1937

Constitution

has

always

been

thought

of

as

a

rigidly conservative,

theistic document

representing

the

perceived

piety

of

the

1930s.

It

is

perhaps

ironic,

therefore,

that

those

seeking

further

secularisation

of

Irish society

have

begun

to

use the

provisions

of

the

Constitution

as

a

means

of

speeding

the

attainment

of

their

goal.

In

fact

it

has

always been

a

misrepresentation

to

suggest

that

the

Constitution

embodies

a

single

or homogenous set

of

values.

Even

during

the

pious

thirties

those

who

had

fought for

an

Irish

Republic

were

sufficiently attached

to

their

ideological

heritage

to

ensure

that

the new

constitution would

embody

at

least

some

of

the

ideals

which inspired

the

first

modem

republics

of

the

late

nineteenth

century.'

The

potential

for

conflict between

the

competing

ideologies

within

the

Constitution

has

always existed but

has,

until

recently,

been

masked

by

the

homogeneity

of

Irish

society.

This

potential

for

conflict

is

to

be

seen

especially readily

in

the

constitutional

provisions governing

education.

Article

42

"clearly

reflects

Roman

Catholic

social

teaching

' 2

in

its

stress

on

the

rights

of

parents

to

provide

for

the

education

of

their

children

and

its

protection

of

denominational

education while

Article

44

is

inspired

by

nineteenth

century

liberalism,

prohibiting

as

it

does

state

endowment

of

religion and

discrimination

on

religious grounds.

3

As

Whyte

has

pointed

out,

"Like some constitutional

Rip

van

Winkle

[the

constitutional

provisions

governing

education]

have for

the

most

part

lain

dormant

since

their enactment".

4

The

case

of

The

Campaign

to

Separate

Church and

State

v.

The

Minister

for

Education

5

provided the

Supreme

Court

with

an

excellent

opportunity

to

clarify

the

relationship

between

these

Articles

and

Junior

Sophister

Law student,

Trinity College,

Dublin.

See

Lyons,

Ireland

Since the

Famine

(Fontana

Paperbacks,

1973),

at

545.

2

Kelly,

The

Irish

Constitution

(3rd

Ed.,

Butterworths,

1994),

at

1052.

3

Lyons,

loc.

cit.,

at 545.

4

From

"Education

and

the

Constitution"

in

Lane

ed.

Religion

Education and

the

Constitution

(Columba

Press,

1992),

at 84.

[1998)2

ILRM

81.

©

1999

R6nin

McCrea

and

Dublin

University Law Society