Challenge to religious oaths

Hotblack Desiato

Several political figures are taking a challenge to the constitutional requirements for a religious oath for the President and members of the Council of State. Bizarrely, the government (which has stated removing religious oaths in court as a policy goal) is vigorously opposing this.

https://www.irishtimes.com/news/ireland/irish-news/religious-oaths-set-to-remain-a-thorny-issue-for-public-figures-1.4637237

In response, however, the Government challenged both their status as litigants and the merits of their argument that the oaths violate their rights under the convention.

First, the Government said none of the litigants could be regarded as “victims” whose rights to freedom of thought, conscience and religion were violated by the oaths.

Citing an earlier ruling of the court, it said they do not fulfil an indispensable condition for putting the protection mechanism of the Convention into motion. “On this basis alone, the application must be deemed inadmissible,” it said.

None of the applicants had been elected president so they had not been required to make the oath, and none had contested the last presidential election in 2018, the Government said. “Similarly, none of the applicants has served or has been invited to serve as a member of the Council of State and, as a result, been required to make the declaration required.”

As a result, none of the litigants were “directly affected” by any alleged violation of their rights nor were they “potential victims” of any such violation.

So we have to wait for someone who cannot in conscience take the oath to be elected President before this can be challenged? That would leave us in a massive constitutional crisis.

Even if the case was admissible, the Government said, there was no breach of human rights and the substance of each oath was not in itself religious.

“The declarations are not, in substance or form, religious and do not exclude non-Christians or non-believers from either the office of president or appointment to the Council of State. Neither the president nor a member of the Council of State is required to swear allegiance to any particular religion. On the contrary, the freedom of conscience and religion of every citizen is expressly guaranteed under [the] Constitution.”

The declarations did not interfere with the freedoms guaranteed under the convention, said the Government. “Even if – contrary to that primary submission – the declarations were regarded as limiting the freedom of thought, conscience and religion, those limitations must be regarded as justified.”

Nuts.

The first bit - of course making an oath before "Almighty God" is religious. Also there are many religious people who believe that swearing an oath is repugnant.

The second bit - madness. Presumably they are going to try to invoke the Preamble with that, saying that this handwavey pile of nonsense somehow overrides explicit human rights elsewhere in the Constitution, and in the ECHR.

I'd love to know who decided that this case would be defended, and why.

Why not just give us a referendum on it?

smacl

Certainly seems bizarre and worthy of being an additional tick box item on the next referendum. Don't think it merits the cost of one all by itself.

Peregrinus

Two things:

1. There's nothing bizarre about the government's stance here. It's the only stance they can take.

2. Your last comment ("Why not just give us a referendum on it?") captures it.

Ireland is a constitutional democracy. Public officials are bound to uphold the constitution; that is literally the first and most important requirement of the job. If you don't want, or can't do, the job, don't seek or accept office. If you do seek and accept office, then do the job.

This doesn't mean that public officials have to believe that the constitution is perfect and immutable. There is a provision within the constitution for the constitution to be amended, and public officials are perfectly at liberty to believe that it should be amended, to call for it to be amended, to bring forward amendments, to campaign for them.

What they cannot properly do is not seek to amend the constitution, and just decide that they won't bother upholding or defending the bits of it they don't like. This is not Putin's Russia. Upholding the constitution is not optional for a public official. Their personal and political opinions about the merits or demerits of various bits of it don't enter into this calculation at all.

(For the record, I agree that the constitution should be amended to remove the requirement for religious oaths. But the government doesn't get to let the bits of the constitution that I don't like slide, any more than they get to let the bits that they don't like slide.)

Hotblack Desiato

I think the best way to uphold the constitution is to recognise where a deficiency exists and commit to drafting an amendment to put to the people within a reasonable timeframe. Nobody is suggesting they just leave it in place and ignore it (like a woman's place in the home..?)

Peregrinus

https://www.boards.ie/discussion/comment/117715446#Comment_117715446

Sure. But unless and until they do that (and get the people to agree with them), their stance in proceedings in which the Constitution is challenged is not optional.