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| 14-September-2026 |
Article 44.2.4 singles out religious instruction, while all other subjects come under Article 42. That distinction matters when exercising our parental rights in relation to the religious education of our children.
Article 44.2.4 takes the control of the arrangements for not attending religious instruction out of the remit of the Department of Education and puts it firmly as the responsibility of the Oireachtas. Article 44.2.4 links religious instruction to the funding of schools while other subjects are not linked to state aid to schools.
Telling us that we should just treat religion like any other subject is telling us to ignore our Constitutional rights.
For example:
- The right to not attend religious instruction in schools comes under Article 44.2.4 of the Constitution, while not attending SPHE comes under Article 42.1.
- The right to not attend religious instruction is linked to the funding of schools under Article 44.2.4 of the Constitution, while the right to not attend SPHE is not.
- Under Article 44.2.4, legislation providing state aid for schools must not prejudicially affect the right to not attend religious instruction, but this does not apply to not attending SPHE.
- Article 42.1 does not explicitly refer to ‘not attending’ subjects such as SPHE, while Article 44.2.4 refers explicitly to ‘not attending’ religious instruction.
The right applies to state and patron body religion classes
It doesn’t matter whether a religion course is developed by the state or by a patron body, because the right is based on parental rights and conscience under the Constitution. What matters is the text of Article 44.2.4 and the rights and duties that flow from it.
The Supreme Court said that the inalienable rights of parents under Article 42.1 of the constitution in relation to the religious education of their children must be read in the context of Article 44.2.4, the right to not attend religious instruction.
That firmly links the right to not attend religious instruction Article 44.2.4 with the inalienable rights of parents in relation to the religious education of their children under Article 42.1.
Article 44.2.4 is a sub-section of Article 44.2, the right to freedom of conscience. It makes no sense to claim that the right under Article 44.2.4 only applies to religion courses (religious instruction) developed by patron bodies, as that would conflict with the relationship of the right to not attend religious instruction with freedom of conscience and parental rights under the Constitution.
Why would the Constitution leave it up to the executive to decide what is or is not against the conscience of parents? That would simply undermine the right. And the Oireachtas has clearly reflected parents’ conscience under Article 44.2.4 in Section 30.2(e) of the Education Act 1998.
The duty to protect the right lies with the Oireachtas
One of the key implications of the text of Article 44.2.4 is that it puts the obligation and duty to protect the right to not attend religious instruction onto the Oireachtas, not the executive.
Article 44.2.4 begins with the word ‘legislation’. Only the Oireachtas can put in place legislation so the Constitution puts a duty on the Oireachtas in relation to not attending religious instruction. That duty is linked to the funding of schools. It is a condition of state funding that children have a right of access to publicly funded schools and exercise the right to not attend religious instruction. The Education Act 1998 does not reflect this aspect of Article 44.2.4 of the Constitution.
If the Constitution treated religion the same as any other subject then it would have left the protection that Art 42.1 affords to the rights of parents regarding the religious education of their children under Article 42.1. It would also have left the arrangements for not attending religion classes under the control of the executive. But it does not do this.
We believe that the legislation in place has failed to protect our rights under Article 44.2.4 of the Constitution.
Constitutional and Legal Rights
Here are the key Constitutional and legal rights involved
Article 42.1
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.
Article 44.2.4
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
Section 30-2(e) Education Act 1998
The Minister –
Shall not require any student to attend instruction in any subject which is contrary to the conscience of the parent of the student or in the case of a student who has reached the age of 18 years, the student.
Intermediate Education (Ireland) Act, 1878
Section 7
The Board shall not make any payment to the managers of any school unless it be shown to the satisfaction of the Board that no pupil attending such school is permitted to remain in attendance during the time of any religious instruction which the parents or guardians of such pupil shall not have sanctioned, and that the time for giving such religious instruction is so fixed that no pupil not remaining in attendance is excluded directly or indirectly from the advantages of the secular education given in the school
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