An interesting aspect of the Swiss ban on minaret construction is the surrounding discourse on the nature and scope of religious liberty rights. This conflict goes to the heart of the question of whether religious liberty is defined from the departure point of the recognised doctrinal requirements of religion itself, or whether it is defined independently of determinate doctrine, and relates instead to the question of whether legal rules incorporate religious criteria. Do lawyers care about the position of minarets within the Islamic religion, and if so, why? This mirrors, to an extent, the debate surrounding the question of various Islamic garments, the question of whether they are in fact a compulsory aspect of Islamic practice, and therefore, one line of argument goes, protected by religious freedom principles. In the Times (London), it was suggested by Taj Hargey last week, for example, that since the construction of minarets is not a compulsory or essential facet of Islamic religious practice, the Swiss ban does not contravene religious freedom principles.
While the response of the ECtHR to such arguments would undoubtedly be interesting, the expression of such views is significant for what it reveals of the prevailing way in which religious freedom is conceived, in intellectual, media, political and popular circles. In one sense, it is a more expansive conception of religious freedom principles than others because it defines religious freedom from the departure point of the requirements of religion itself – hence the term, grating and clumsy, of “religious rights.” On this view, religious freedom means the freedom to act as required by a particular, identifiable religious tradition, a conception which may be used to justify exemptions, legislative or judicially-imposed, from generally-applicable or “neutral” laws which are not directed at religion per se. For example, we might look to the accommodations extended to Sikh men wishing to incorporate turbans within public service uniforms in jurisdictions, such as the United Kingdom and Canada, which vaguely tend towards some conception of normative multiculturalism. Such accommodations of religious objections within the scope of secular, neutral laws, are generally refused in jurisdictions with principles of constitutional secularism.
The Irish Times reports on the annual Garda consultation forum with minority groups, which took place on Friday. Participants at the forum discussed the new Garda diversity strategy, which was published in May. The Garda reserve force can now boast a few members who are immigrants to Ireland, which is part of the reason why this sort of strategy is required. At the forum, Dr Jasbir Singh Puri argued that the police force was only partially open to ethnic minorities. In August 2007, Ravinder Singh, a Sikh member of the Garda reserve force in his 20′s was forbidden to wear a turban while on duty. The now defunct NCCRI had recommended that the Garda allow Sikh members to wear the turban while in uniform, but the police force seems to have thought best to ignore that advice. At the time of the original controversy, the Garda explained its uniform rules on the basis of the imperative of impartiality in policing, attempting to make the issue one of operational effectiveness, albeit broadly understood. John Leamy, the Garda ‘diversity champion’ took a similar approach on Friday. He said that when members of the force put on their uniform, they “leave their own personal beliefs outside the organisation.” Sikh representatives, however, are attempting to link the garda turban ban to a broader pattern of discrimination against Sikhs in the sphere of employment, grounded in a pro-assimilation mandate. At the forum, Dr Jasbir Singh Puri argued that the police force was only partially open to ethnic minorities.”You talk about openness, but the door is not fully open, it is partially open. You are denying the fundamental right to employment to all Irish children. These are Irish-born Sikh children.” Certainly, at the time of the 2007 debate, the Minister for Integration took the position that “[i]f we’re to take integration seriously…people who come here must understand our way of doing things’. The Irish Sikh Council decided not to mount a court challenge to the policy. Ronit Lentin has more analysis of the debate here.
The U.S. Department of State released its annual Report on International Religious Freedom on Monday. Secretary of State, Hillary Clinton, introducing the Report, touched again on the theme of defamation of religion, noting that:
But an individual’s ability to practice his or her religion has no bearing on others’ freedom of speech. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions. These differences should be met with tolerance, not with the suppression of discourse.
Now, the section of the report which deals with Ireland probably won’t attract the attention of the international press but it certainly makes for hair-raising reading. Perhaps the report is deliberately light on detail. Perhaps it deliberately selects a narrow conception of religious freedom. Whatever its design, the Report gives a very misleading picture of the state of religious freedom in Ireland.
The Sunday Independent yesterday published an opinion piece by the Minister for Education, Batt O’Keeffe TD in which he responded to this article by Alan Ruddock. Mr. Ruddock had attacked the decision taken by the Minister in last year’s budget to strip a group of fee-paying Protestant secondary schools of a category of ancilliary funding – used to pay caretakers and secretaries – totalling about €3m annually. 21 of the 56 fee-paying secondary schools in the country subscribe to a Protestant ethos. In 1966, during the term of office of the Fianna Fail Minister for Education Donagh O’Malley, the State came to an agreement with this group of schools; an ad hoc solution to an issue of accommodation of religious minorities. At the time, O’Malley planned to introduce a system of free secondary education for the first time in Ireland’s history. He succeeded. The government in which he served recognised that because the Protestant population in Ireland was so small and so widely dispersed, it would be impractical for the State to provide Protestant children with the type of schooling which Catholic children could easily access by virtue of being part of the religious majority: a free secondary education grounded in an appropriate religious framework. The government therefore agreed to provide ‘block funding’ which covers day to day running costs, tuition and boarding grants to Protestant schools. The amount of funding this year was €6.5m. The block funding is distributed, via the Secondary Education Committee, to support Protestant children whose parents would not otherwise be able to send them to a fee-paying school, thus closing an important ‘equality gap’ in the new secondary education regime. The block funding – so-called because it is given to the SEC in a lump sum rather than per capita as happens in the majority of schools – remains in place as it has done for over 40 years but these fee-paying schools will no longer receive ancilliary grants, which from now on will be provided only to non-fee-paying schools. They are expected to raise any necessary extra income from their own resources by taking on more students, or if necessary by joining the free education scheme. The Protestant Secondary Education blog has policy documents from a conference held in Dublin on October 3, together with a good selection of media responses, including audio clips here.
This is the second time in as many years that the Minister’s policies have provoked anger among Ireland’s Protestants, many of whom have, in the words of Cork’s Bishop Paul Colton, come to view the accommodation of Protestant education as ‘a litmus of how Ireland treats and values us’. In June of last year, four Protestant secondary schools mounted a High Court challenge to the government’s teacher redeployment scheme, which would have required them to accept teachers onto their staff who had been made redundant by school closures elsewhere in Dublin. The schools sought a declaration that it would be unconstitutional for the Minister for Education to compel them to employ teachers who were not of the Protestant faith without any assurance that these teachers would subscribe to the ethos of the schools concerned. The schools expressed concern that their hiring autonomy would be severely circumscribed. The case settled, but the terms of the settlement were not released.
The Irish Times notes that a constitutional challenge to s.99 of the Charities Act 2009, which criminalises the sale of Mass cards* otherwise than by agreement with a bishop or provincial of an order of priests of the Catholic Church, has opened today before Mr. Justice McMenamin in the High Court. The plaintiffs are Thomas McNally, head of a Mass card production company in Longford and his sister Mary Reilly, who sells the cards. They are represented by Dr. Gerard Hogan SC. Mr. McNally sells pre-signed Mass Cards by arrangement with a Catholic bishop in Tanzania, who receives payment in exchange for promises to say Mass. S.99 is intended to deal with the fraudulent sale of Mass cards. We hope to provide guest commentary on this case in due course, but until then, the following opinion, written by the former Attorney General John Rogers SC, quoted by Senator David Norris in a Seanad Debate on the Charities Bill is a good guide to the constitutional issues involved: