A Fianna Fáil senator, Averil Power, has published a bill which would prohibit discrimination against teachers on grounds of sexual orientation. Having enacted and maintained the current provisions in force during its years in office, the party seems to have performed an about-turn on this issue: leader Micheál Martin said: “As a republican party, a commitment to fighting discrimination in all forms is a core value for Fianna Fáil.”
The bill is conceived of as a partial corrective to the controversial, broad exemption currently provided for denominational schools in employment equality law. Section 37 of the Employment Equality Act 1998 exempts denominational schools from the scope of the prohibition on employment discrimination where such discrimination is “reasonable” in relation to the need to “maintain the religious ethos of the institution. This is a vague formulation, to say the least, and its scope is unclear. The exemption is not explicitly confined to discrimination on religious grounds. At minimum, it is considered to allow schools to discriminate in favour of coreligionists. This is not, however, confined to teachers with a role in religious instruction, as there is no explicit requirement that the relevant form of discrimination should be necessary to an “occupational” function, specifically. This may derive from the idea that a religious ethos is meant to pervade the whole of a school environment, and so can legitimately command deference from all school employees. It appeals to teachers’ role in in communicating, promoting and even personifying a school’s peculiar set of values: in John McGahern’s terms, teachers in Ireland were traditionally conceived of as the “second priesthood”.[i]
Accordingly, the generally deferential political reception of claims based on “ethos” diminishes any claim to restrict statutory provisions for permissible discrimination in terms of the specific situational or “occupational” necessity inherent in particular roles. Discrimination against teachers with deviant lifestyles has a robust pedigree in Ireland: before the enactment of the current legislation, the High Court upheld, in Flynn v Power , the dismissal, by a Catholic secondary school, of an unmarried teacher who began to live with a married man and became pregnant. Her lifestyle was accepted by the Court as being inconsistent with the “ethos” of the school.
Although s. 37 does not explicitly refer to sexual orientation, there has long been a fear that it may undermine the position of lesbian, gay and bisexual teachers. The hypothesis, never properly tested, is that teachers whose lifestyles or identities might be deemed threatening to a school’s religious “ethos” might in turn be held to “reasonably” necessitate discrimination against them on these grounds, whether in recruitment or within the workplace. The fear is not necessarily that lesbian, gay and bisexual teachers are currently directly discriminated against at the point of hiring, but rather than the uncertainty surrounding the scope of the exemption generates a precarious, anxious state of insecurity which is inimical to certain teachers’ personal autonomy. This uncertainty may generate self-censorship and stifling discretion, given their apprehension of the potential effects of public disclosure and expression of their sexuality within the community. In short, the ambiguous formulation of s 37 may underlie an invigilatory atmosphere of enforced discretion in matters of sexual orientation. It is in this lens that Senator Power has said her bill will seek to eliminate this “chill” factor for lesbian, gay and bisexual employees in denominational schools.
Here, I would like to focus on the (supposed) constitutional underpinnings of the existing exemption, and on whether, or to what extent, “the Constitution” (or rather, constitutionally-framed ideology) might thwart – or at least circumscribe – any such attempts at legislative reform (or indeed, future, more radical variants of it).
In short, the Supreme Court has vaguely asserted that the right of denominational schools to discriminate on religious grounds is constitutionally protected. The “right to discriminate”, on various grounds, is said to be derivative of schools’ “religious freedom”, conceived of rather loosely and ideologically. In in Re Article 26 and the Employment Equality Bill 1996, the Supreme Court upheld a provision in the 1996 Bill, exempting denominational schools, virtual identical to the current s. 37 (the 1996 Bill was struck down on other grounds). The Supreme Court asserted that “religious freedom” enjoyed primacy over equality in situations where these principles conflict. Therefore, it held that religious discrimination was permissible where necessary to give “life and reality” to the constitutional guarantee of religious freedom. Thus, discrimination, by denominational schools, was given a constitutional expression. “Religious freedom”, in this context, is generally taken to refer to the right of parents to have their children educated in denominational schools, which in turn is taken to protect all measure and exclusionary prerogatives of such schools as are necessary to uphold their “ethos”. However, this link of necessity – between discrimination and religious freedom – is poorly made out, and enjoys no basis in any coherent ethical conception of religious freedom
Accordingly, the autonomy of denominational schools in respect of functions including employment and enrolment has been ideologically sanctified, as a purported function and expression of “ethos”, and as essential in turn, therefore, to religious freedom. This has been converted, in turn, into a specifically constitutional precept, with the authority this conveys, on the basis of the vague, open-textured provisions of Article 44 of the Constitution, which protect the “free practice and profession” of religion in quite general terms. According to this rationale, the uniform application of equality law to denominational schools would undermine their capacity to assert their religious identities through the employment process. On the one hand, this has broadly overlooked the peculiarly public role of those denominational schools recognised and funded by the State under the Education Act 1998 – in this light, they essentially represent the conduits for the provision of public education in this state, and should belong in the “public” sphere for constitutional purposes. Instead, they are flexibly and opportunistically classified as “public” or “private” bodies depending on the particular purpose or context – and for the purpose of equality law, they are deemed “private”. In turn, they are deemed to be outside the constitutional prohibition on religious discrimination, specifically, which is thought to apply to a very narrow set of unambiguously “public” agencies [McGrath and Ó Ruairc v Trustees of Maynooth College (1979)].
The conceptualisation of equality and religious freedom as antagonistic and conflicting values has also been applied in the context of school enrolment, where denominational schools also enjoy an exemption from the prohibition on religious discrimination, specifically, under s. 7 of the Equal Status Act 2000. The overwhelming emphasis in public and constitutional discourse has been on schools’ “right to discriminate” based on a broad, ideological notion of “religious freedom”, but with little focus, conversely, on how the consequent statutory permission for religious discrimination may actually work to undermine the capacity of parents, in particular, to freely exercise and manifest their religious or other beliefs, without suffering a penalty through the denial of school enrolment. There has been an abusive, ideological exploitation by political conservatives of the supposed incompatibility of religious freedom and equality to mask, and constitutionally reify, the hierarchical and anti-egalitarian power structures of national education, with its curiously hybrid public-private structure, and the immense unaccountable power it accords to private “patrons”, to the exclusion of citizens and parents.
Without commenting yet on the specific content of this week’s bill, there are two broad points that must be made.
First, it is unclear whether the existing legislation does, in fact, allow for teachers to be discriminated against on grounds of sexual orientation. The scope of “reasonableness”, for the purposes of section 37, has yet to be clarified by the High Court. Certainly, it would seem strange if the very fact of sexual orientation could be said to undermine say, a Catholic school’s ethos since (in my very limited understanding of these matters) Catholic teaching does not posit the evil of homosexuality, as an orientation as such, but rather its practice. Still, the fear remains that the expression of sexuality in the broader community might be claimed to undermine a school’s ethos. Thus, while I believe that the exemptions from equality law, for publicly-funded denominational schools, should be repealed in their entirely – bar extremely limited cases where religion may be relevant for occupational purposes, such as a chaplain – it is particularly imperative that any potential use of the existing exemption to invigilate teachers’ expression and exercise of sexuality be swiftly and explicitly foreclosed.
Any judicial interpretation of what would be “reasonable” to protect an ethos in this context would put judges in the incongruous position of having to interpret, in the first place, what an “ethos” consisted of. It would require them, in particular, to sift out any claims based on managerialist expediency from claims relating to the religious core of a school’s identity. In other words, it would, in this context, require them to distinguish between freestanding bigotry and authentically religious bigotry. In the 1996 case, Hamilton CJ said:
“It is true that “ethos” is a vague term and is nowhere defined in the Bill … It is probably true to say that the respect for religion which the Constitution requires the State to show implies that each religious denomination should be respected when it says what its ethos is. However the final decision on this question as well as the final decision on what is reasonable or reasonably necessary to protect the ethos will rest with the court and the court in making its overall decision will be conscious of the need to reconcile the various constitutional rights involved.”
Second, any such reform of equality legislation may be resisted on constitutional grounds, given the high degree of deference, in existing constitutional jurisprudence, to denominational schools’ exclusionary prerogatives – as a supposed corollary of “religious freedom”. Whereas in the 1996 case it was held that the exemption for denominational schools was constitutionally permissible, on grounds of religious freedom, the argument is likely to follow, from this, that such exemption is, in fact, constitutionally required – in other words, that the Constitution deprives the Oireachtas of this choice. The recent Portmarnock decision made plain the hostility of certain members of the Supreme Court to the application of equality legislation to private associations – and the malleable concept of religious freedom recognised in Article 44.2 may offer a convenient juristic frame within which this impulse can be crystallised and expressed, and clothed in legitimating juristic terms. While this may not bode well for progressive reform attempts, it should also be noted that the 1996 decision asserted that constitutional religious freedom protected discrimination on grounds of religion, specifically; it might well be held that it does not similarly protect discrimination on a ragne of other grounds also.
[i] J. McGahern, Memoir (London: Faber & Faber, 2005), p. 208