Fifth Amendment of the Constitution of Ireland

The Fifth Amendment of the Constitution of Ireland removed from the constitution a controversial reference to the "special position" of the Roman Catholic Church as well as recognition of certain other named religious denominations. It was effected by the Fifth Amendment of the Constitution Act, 1972 which was approved by referendum on 7 December 1972 and signed into law on 5 January 1973.

Changes to the text

*Deletion of the entirety of Article 44.1.2:

::The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.

*Deletion of the entirety of Article 44.1.3:

::The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.

*(Article 44.1.1 correspondingly renumbered as Article 44.1)

Contemporary viewpoint

In drafting the Irish constitution in 1936 and 1937, Éamon de Valera 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 (notably Holy Ghost Fathers priest Fr. John Charles McQuaid), 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, in organisations like Maria Duce, that explicit recognition be given to what they regarded as the "true faith", with their faith made the state church;

* Fears to non-Roman Catholics that in a predominantly Roman Catholic society any explicit domination by Roman Catholicism would lead to discrimination against them.

* Prevailing attitudes of anti-semitism which was reflected in many European states in forms of discrimination being introduced against members of the Jewish faith.

* 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 to fundamentalist Roman Catholicism by containing a number of (in their eyes) controversial, indeed offensive, provisions:

* Roman Catholicism was not made the state church, the demand of Maria Duce and a minority of members of the Roman Catholic hierarchy in Ireland. (Maria Duce continued to campaign to amend the article to make Catholicism the official state church until 1955, when it ceased to exist.)

* Roman Catholicism was given an undefined "special position" not as the "true church" but merely as the church of the majority. Pre-Vatican II Roman Catholicism did not accept that other religions had any rights. All rights belonged to it by being the 'true church' supposedly created by Jesus, irrespective of its number of adherents. To base its position not on theology but purely on who had more adherents ("numbers, not truth," in the words of one critic) angered organisations like Maria Duce.

* The Article also explicitly recognised other religions, using their official titles. Right-wing Roman Catholics had long since disputed the rights of those churches to use those names, traditionally referring to the "so-called Church of Ireland." The use of those titles infuriated organisations like Maria Duce.

* Among the faiths recognised as existing and, by extension, having a right to exist, was the Jewish Community in Ireland. Though anti-semitism in Ireland in the 1930s was less prevalent than in Germany, 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. The inclusion of that right also caused controversy among right-wing Roman Catholics.

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 asked to approve of the constitution by de Valera to boost the constitution's chances of getting voted through, and to silence its Catholic critics, Pope Pius XI, having received reports of its contents, replied "I do not approve. I do not disapprove. I have no opinion". Later Pope Pius XII praised the Irish constitution. [ [http://64.233.167.104/search?q=cache:vVfsvqkqRJAJ:www.nuigalway.ie/law/GSLR/2003/GSLR%2520complete.pdf+%22irish+constitution%22+%22pius+XII+praised%22+-wikipedia&hl=en&ct=clnk&cd=2&gl=us Galway Law Review] ]

Viewpoint in the 1970s

By 1972 an article once condemned by critics as liberal and indeed by some as offensive to Catholicism, had come to be seen as out of place, dated, and potentially discriminatory to Protestants. The "special position" of the Catholic Church had granted to that church, albeit in an undefined manner, a special status that was out of step with post-Vatican II Catholic thinking on the relationships between the churches. The Protestant churches, though they had declined in adherents, were more outspoken and willing to express their unhappiness than they had been in the Ireland of the 1920s and 1930s, when many were fearful that criticism of the Irish state would be seen as criticism of Irish independence and so implicitly a preference for the British "ancien régime" that had ruled Ireland before 1922.

In addition, in the rapprochement between Northern Ireland and what was now known as the Republic of Ireland, many southerners perceived the "special position" as a barrier between a north-south relationship and even a potential source of discrimination against minorities. In addition the explicit recognition of certain denominations was seen as unnecessary because of the provisions Article 44.2 which contains guarantees of freedom of worship and against religious discrimination. Though the changes shown above are those made to the English language version of the constitution, constitutionally it is the Irish text that takes precedence.

This Fifth Amendment was introduced by the Fianna Fáil government of Jack Lynch and supported by every other major political party. The Catholic Church did not voice any objection to the amendment but it was opposed by some conservative Catholics. Some leading members of the Church of Ireland and the Jewish Community said during the campaign that while they appreciated the Article's recognition of their existence (and in the case of the Jewish Community their "right" to exist (compared to anti-Jewish laws in many other states) in 1937, it was no longer needed in the 1970s and had passed its usefulness.

The referendum on the amendment occurred on the same day as the referendum on the Fourth Amendment which lowered the voting age to eighteen. The Fifth Amendment was approved by 721,003 (84.4%) in favour and 133,430 (15.6%) against.

Having completed its passage through the Oireachtas and been adopted by the people, it was enacted by being signed into constitutional law by the President of Ireland, the man who had originally drafted the original article, Éamon de Valera.

Result

Additional reading

* Micheál Ó Cearúil, "Bunreacht na hÉireann: A Study of Its Irish Text
* Tim Pat Coogan, "Éamon de Valera"
* David Gywnn Morgan, "Constitutional Law of Ireland"

ee also

*Politics of the Republic of Ireland
*History of the Republic of Ireland
*Constitutional amendment
*Irish constitutional referendum, December 1972

External links

* [http://www.irishstatutebook.ie/1972/en/act/cam/0005/index.html Fifth Amendment of the Constitution Act, 1972] (Full text at [http://www.irishstatutebook.ie IrishStatuteBook.ie] )
* [http://www.taoiseach.gov.ie/attached_files/html%20files/Constitution%20of%20Ireland%20(Eng).htm Full text of the Constitution of Ireland] (Accurate up to and including the Twenty-seventh Amendment from [http://www.taoiseach.gov.ie/ Department of the Taoiseach] )
* [http://www.johnpghall.pwp.blueyonder.co.uk/ The Unabridged Constitution of Ireland] (Unofficial variorum edition - accurate only up to Twentieth Amendment)

Footnotes