Fifth Amendment of The Constitution of Ireland - Contemporary Viewpoint

Contemporary Viewpoint

In drafting the Irish constitution in 1936 and 1937, Éamon de Valera and his advisers chose to reflect what had been a contemporary willingness by constitution drafters and lawmakers in Europe to mention and in some ways recognise religion in explicit detail. This contrasted with many 1920s constitutions, notably the Irish Free State Constitution of 1922, which, following the secularism of the initial period following the First World War, simply prohibited any discrimination based on religion or avoided religious issues entirely.

De Valera, his advisers (Fr. John Charles McQuaid, the future Archbishop of Dublin), and the men who put words to de Valera's concepts for the constitution (John Hearne and Mícheál Ó Gríobhtha) faced conflicting demands in his drafting of the article on religion.

• The demand from conservative Roman Catholics that Catholicism be established as the state religion of Ireland;

• Protestants' fears of discrimination.

• Prevailing opposition to Judaism.

• The fact that most people in Ireland belonged to some religion, and that the education system and to a lesser extent the health system were denominational in structure, with Roman Catholicism, the Church of Ireland, the Presbyterian Church, the Methodist Church, the Jewish community and others running their own schools and non-governmental agencies.

De Valera's solution was Article 44. In contemporary terms, it marked a defeat for conservative Catholics, and Pope Pius XI explicitly withheld his approval from it:

• Catholicism was not made the state church.

• Catholicism was given an undefined "special position" on the basis of being the church of the majority. This was not consistent with the stance of pre-Vatican II Catholicism, which claimed the right to legal and political influence on the basis of the claimed objective truth of its teachings rather than the size of its following.

• Other religions were named and recognised on a lower level. The use of the Church of Ireland's official name antagonised conservative Catholics, who saw Catholicism as being the proper and rightful "church of Ireland".

• The Jewish community in Ireland was also given recognition. The explicit granting of a right to exist to the Jewish faith in Ireland marked a significant difference to the legal approach to Jewish rights in other European states, though contemporary Irish society was far from free of anti-semitism.

Though perceived in retrospect as a sectarian article, Article 44 was praised in 1937 by leaders of Irish Protestant churches (notably the Church of Ireland Archbishop of Dublin) and by Jewish groups. Conservative Catholics condemned it as "liberal".

When the contents of Article 44 were put to Pope Pius XI by Cardinal Eugenio Pacelli (later Pope Pius XII), the pope stated in diplomatic language: "We do not approve, nor do we not disapprove - we will remain silent". It was said that the Vatican was privately more appreciative of the constitution, and Pius XII later praised it.