The Evolution of the Right to Religious Freedom of Expression: From Post-Independent Ireland to 2022.

THE EVOLUTION OF THE RIGHT TO RELIGIOUS FREEDOM OF EXPRESSION: FROM POST-INDEPENDENT IRELAND TO 2022

Saira Khan

The fundamental right to freedom of expression, particularly relating to religious practice, is well-established in both Irish domestic law and international law. The current tense political climate and the increase of secular states have led to a rise in antireligious rhetoric which has brought freedom of religion into question.1

Freedom of Religion Post-Independence

The implications of prohibiting religious freedom of expression on the social, economic, and political rights of a population are as profound today as they were at the creation of the Irish Free State. The dominant minority population in the Republic of Ireland in the 1920s were Protestants. They were the subject of home, business, church, and land attacks after the Irish Civil War.2 In the interval between the removal of British power in 1922 and the creation of law enforcement in the Free State, it was incredibly difficult for minority populations to exercise their religious beliefs. The post-Independence Gaelic, Catholic, and nationalist ethos of the new State had practical consequences for younger minorities who were required to learn Irish to enter the civil service, defence, and legal professions. Bowen, a renowned author and historian of Irish Victorian Protestantism, argued that this ‘forced cultural conformity’ was what contributed to Protestant emigration and essentially restricted their freedom of expression.3

The actions of the government were limited in diminishing the fear of the religious minorities. While Constitutional provisions protected religious freedom as a whole, there was no explicit provision protecting the rights of such minorities.4 Hence, the government could openly deny that these protections included religious minorities,

1 Special Rapporteur on the Freedom of Religion or Belief, Report On Countering Islamophobia/Anti-Muslim Hatred To Eliminate Discrimination And Intolerance Based On Religion Or Belief (UN Human Rights Office of the High Commissioner 2021). 2 Terence AM Dooley, 'The Decline Of The Big House In Ireland, 1879-1950' (1998) 25 Irish Economic and Social History. 3 Desmond Bowen, History And The Shaping Of Irish Protestantism (P Lang 1995) 395. 4 Thomas Mohr, 'Religious Minorities Under The Constitution Of The Irish Free State, 1922–1937' (2021) 61 American Journal of Legal History. 99

removing their freedom of expression.5 Regarding political representation, the 1922 Constitution provided for a proportional representation voting system for Dáil Éireann elections allowing religious minorities the chance to elect TD’s who would represent their interests. 6 The Seanad had an unexpressed founding principle of giving Southern Protestants a voice in the politics of the State. Hence, De Valera’s attempt to abolish the Seanad in 1934 reflects the struggle for religious freedom of expression in the Irish Republic.7

Current Constitutional Protections of Religious Freedom

Bunreacht na hÉireann, the 1937 Constitution, protects the fundamental right to freedom of expression by guaranteeing the right for citizens to express their opinions freely, subject to public order and morality.8 Article 44° also allows the practice of religion and freedom of conscience, and states that the State will not discriminate on religious grounds.9 Legislation such as the Regulation of Termination of Pregnancy Act 2018 and the Civil Partnership Act 201010 has allowed for Irish citizens to express freedom of conscience. This is a paramount right as it prevents an individual’s religious beliefs from being compromised while also allowing the non-believer to avail themselves of their rights. This is illustrated by allowing medical practitioners to not participate in the termination of a pregnancy if they have a conscientious objection. However, it also accommodates for the termination and the rights of the pregnant women by transferring care to someone who does not possess such an objection.11

The Impact of Religious Institutions and Beliefs in Modern Ireland

The Catholic Church in Ireland had significant influence over education, resulting in religious discrimination regarding children’s acceptance to schools where the religious ethos of the patrons was to be respected. The Education (Admission to Schools) Act 201812 was introduced to further protect the religious freedom of expression of Irish citizens and prohibited schools from using religion as an admission criterion. Campaign

5 ibid. 6 1922 Constitution of the Irish Free State, Art 26. 7 Dáil Debate, 19 April 1934, vol 51, cols 2111-2. 8 Article 40.6.1.° 9 Article 40°. 10 Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. 11 Health (The Regulation of Termination of Pregnancy) Act 2018, s 22 (3). 12 Education (Admission to Schools) Act 2018. 100

to Separate Church and State13 signified the influence the Catholic Church had over schools at the time. Barrington and Keane JJ concluded that public funding of denominational schools, which is lawful under the Constitution,14 did not constitute an endowment of religion.15 However, freedom of religion was still provided for to a degree,16 as a child would be entitled to attend the school, regardless of their religious beliefs, and have the right not to attend ‘any course of religious instruction at the school’.17 This was echoed in McGrath and Ó Ruairc.18 Maynooth University, the defendant, held a religious ethos19 which bound employees through college statutes. It was deemed more important to allow the university to uphold its Catholic ethos than to protect the employees from religious discrimination.20 .

The Quinn’s Supermarkets case illustrates the Oireachtas’ intention to establish an equilibrium between the religious discrimination of one faith and allowing for the freedom of expression of another.21 While the Hours of Trading Act 1938 prevented meat from being sold in the evening, an exception was made for kosher butchers to accommodate their Sabbath from Friday sundown to Saturday sundown. It was argued that this exception was unconstitutional to those of non-Jewish faith who were unable to sell their meat. On the other hand, as this judgment made clear, the freedom to practice religion became more constitutionally protected than the freedom from religious discrimination.22

However, a failure to protect the right to religious expression has also been seen in situations of employment. A Sikh was prohibited from wearing his turban, a form of religious expression protected under Article 44,23 as part of the Garda uniform to join the reserve. After arguing the case before the Equality Tribunal, the High Court ruled that it was not religious discrimination as the Garda Reservists are legally considered

13 Campaign to Separate Church and State Ltd v Minister for Education [1998] 3 IR 321. 14 Article 42.2.4°. 15 Campaign to Separate Church and State Ltd (n 13). 16 Gerry Whyte, Paper On Religion And Education (The Irish Human Rights and Equality Commission 2010). 17 ibid 356, 100. 18 McGrath and Ó Ruairc v Trustees of Maynooth College [1979] ILRM 166. 19 Article 44.2.5°. 20 McGrath (n 18). 21 Quinn’s Supermarkets v Attorney General [1972] IR 1. 22 Quinn’s Supermarkets (n 21). 23 ibid.

volunteers and not employees. It can be argued that such a restriction on religious expression can lead to minority communities not feeling welcome into the workforce.24

EU Law Safeguards of Freedom of Religious Expression

Ireland’s membership to the European Union (EU) has protected Irish citizens’ rights to freedom of religious expression under European law.25 The right to freedom of religion protects individuals and not religions themselves.26 Articles 10 and 9 of the European Convention on Human Rights (ECHR) protect the right to freedom of thought, conscience, and religion.27 These provisions include the right to manifest religion in worship, teaching, and practice. The right to conscientious objection28 and the manifestation of such beliefs are only limited by law for public safety and the freedom of others.29 Case law illustrates that EU legislators aim to balance freedom of religion with other rights and interests of citizens. The Kocabas30 case proves this as a school requirement for the plaintiffs’ children to attend mixed swimming lessons, although contrary to the religious beliefs of the plaintiff, did not violate Article 9.31 This was because flexible arrangements such as wearing a burkini were offered and the children’s obligations to follow the school curriculum and integrate within the social elements of education were deemed more important than their religious choices.32

The EU safeguards against religious discrimination may be strong, but the rise of secular rhetoric has resulted in controversial judgments. In Eweida, a female British Airways employee who wore a small cross necklace was demoted to a non-customer role as the

24 Conor Gallagher, 'Headscarves And Turbans To Be Allowed As Part Of Garda Uniform' The Irish Times (Dublin, April 4 2019) <https://www.irishtimes.com/news/crime-andlaw/headscarves-and-turbans-to-be-allowed-as-part-of-garda-uniform-1.3848524> accessed 12 January 2022. 25 Paul P Craig and Gráinne De Búrca, EU Law (7th edn, Oxford University Press 2020). 26 UN Special Rapporteur on Freedom of Opinion and Expression, Joint Declaration On Defamation Of Religions, And Anti-Terrorism And Anti-Extremism Legislation (Organization for Security and Co-operation in Europe 2008). 27Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), arts 9-10. 28 ibid art 10. 29 ibid art 9. 30 Osmanoǧlu and Kocabaş v Switzerland [2017] ECHR 14. 31 ECHR (n 28) Art 9. 32 Osmanoǧlu (n 31).

necklace was allegedly a breach of the airline’s uniform policy.33 While the European Court of Human Rights accepted that the right to hold religious beliefs34 was absolute, they noted that the manifestation of that belief must be proportionate with the protection of the rights of others, and as a fair balance was not struck in this case, Eweida’s rights were violated.35

Similarly, the CJEU ruled that employers could ban workers from observing religious symbols, such as the hijab, to maintain a neutral image for clients.36 The Court upheld the Achbita37 judgment that an internal rule banning all signs of belief cannot be considered direct discrimination. Furthermore, the Advocate General proposed a neutrality test which asserted that if the ban related to a characteristic relating to belief, then it was a ‘genuine and determining occupational requirement’ for the company’s neutrality policy, but there must be a subjective genuine need for the policy.38 Similarly, a customer’s desire to not be served by a hijabi Muslim woman was not a ‘genuine and determining occupational requirement’ . 39 Contrary to the small religious symbol in Eweida, a rule prohibiting large symbols like the hijab would be considered unjustifiable direct discrimination under Directive 2000/78.40 Based on these cases, it can be argued that the absolute right of religious freedom41 has evolved under EU law to include subjective limitations, fundamentally controlling another citizen’s belief in such a way that is not within the justifiable limitations of public safety or the protection of the freedom of others.42

In conclusion, the right to religious freedom of expression is deeply rooted in the Irish legal system and supported by both domestic and international law. Ireland of the 21st century respects and protects this right which is fundamental to combating the religious

33 Eweida and Others v United Kingdom [2013] ECHR 37. 34 ECHR (n 28) art 9(1). 35 Eweida (n 34). 36 Joined Cases C-804/18 and C-341/19 IX v Wabe eV and MH Müller Handels GmbH v MJ (Grand Chamber, 15 July 2021). 37 Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (Grand Chamber, 14 March 2017). 38 ibid. 39 Case C-188/15 Bougnaoui and Another v Micropole SA (Grand Chamber, 14 March 2017). 40 Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation [2000] OJ L 303/16; Opinion of Advocate General Rantos, delivered on 25 February 2021. 41 ECHR (n 28). 42 ibid Art 9(2).

intolerance that is becoming more prevalent today. However, the increase in ‘neutral’ workplaces and a shift in what is deemed necessary to protect the rights of others has led to instability in the protection of these rights.43 Religious intolerance is usually manipulated to mask political and cultural tensions. Hence, accurate education of world religions and the elements that are significant to them and present in society, such as the hijab, would encourage understanding and tolerance.44

43 Sumaiyah Kholwadia, 'EU Headscarf Bans: The CJEU’S Missed Opportunity For Reflection On Neutrality In IX V Wabe And MH Müller Handels V MJ | OHRH' (ohrh.law.ox.ac.uk, 2021) <https://ohrh.law.ox.ac.uk/eu-headscarf-bans-the-cjeus-missed-opportunity-for-reflection-onneutrality-in-ix-v-wabe-and-mh-muller-handels-v-mj/> accessed 13 January 2022. 44 Australia's Joint Standing Committee on Foreign Affairs, Defence and Trade, Australia's Efforts To Promote And Protect Freedom Of Religion And Belief (HR, 2019). 104