On the 40th anniversary of the deletion of the ‘special position’ of the Catholic Church from the Constitution, Ryle Dwyer examines the article’s origins
PRESIDENT Éamon de Valera signed into law the constitutional amendment abolishing article 44’s recognition of “the special position” of the Catholic Church on Jan 5, 1973. Ironically, the clause dealing with religion had caused de Valera the greatest anxiety in drafting the Constitution in 1937.
He had sought “to produce a constitution which would not require any fundamental change when the unity of Ireland was accomplished”. Subject to “public order and morality”, the proposed constitution guaranteed “fundamental rights”, like freedoms of speech, conscience, association, and assembly, as well as habeas corpus, and the inviolability of one’s home. All citizens were equal before the law, and there was protection against religious discrimination.
Nevertheless, the Constitution accorded closely with Catholic thinking. “The Most Holy Trinity” was described as the source of all authority in the Preamble. The document was drafted with the help of the President of Blackrock College, Dr John Charles McQuaid, who was shortly to become Archbishop of Dublin.
De Valera showed early proofs of the document to some colleagues, who raised strong objections to the religious clause. “The State acknowledges that the true religion is that established by Our Divine Lord Jesus Christ Himself, which he committed to his Church to protect and propagate, as the guardian and interpreter of true morality,” the article read. “It acknowledges, moreover, that the Church of Christ is the Catholic Church.”
Gerry Boland, the Minister for Lands, was appalled. “If this clause gets through as now worded,” he said, “it would be equivalent to the expulsion from our history of great Irishmen.” Protestant patriots like Tone, Emmet and Parnell, would never have lived in Ireland “under such a sectarian constitution”, he argued.
“And I would not live under it either,” Boland added. “I would take my wife and children and put myself out of it.”
The clause was so contentious that de Valera removed it from the draft constitution circulated to the whole cabinet on Mar 16, 1937. The clause needed further work, he explained. He proceeded to consult personally with leaders of the various churches.
Eventually, he came up with a clause recognising the existence of the main Protestant churches in Ireland, as well as the Jewish religion, and it recognised “the special position” of the Roman Catholic Church “as the guardian of the faith professed by the great majority of the citizens”.
Joseph Cardinal MacRory, the Irish Primate, opposed the new wording. Both he and de Valera appealed to the Pope.
“The Holy Father at first agreed with me,” MacRory wrote. But de Valera sent Joseph Walshe, secretary at the Department of External Affairs, to the Vatican to explain the difficulties that such a triumphal recognition would cause, in view of the sectarian divisions in Northern Ireland. Walshe persuaded the Vatican not to oppose the new wording.
The 1937 Constitution was supposedly designed to appeal to Northern Protestants, but even some of de Valera’s strongest supporters realised that this was absurd. The government had never tried to win over Northern unionists to a united Ireland.
The “special position” accorded to the Catholic Church was supposedly meaningless, but it took on real significance in 1945 after the parish priest of Listowel refused to testify in a case. He claimed special privilege on the grounds the matter had been discussed with him as a priest.
There was no question of the seal of the confession in the matter, so Judge Barra Ó Bríain fined him for contempt of court. On appeal, however, George Gavan Duffy, President of the High Court, broke new ground by ruling a priest has “sacerdotal privilege,” which accorded him a right “to refuse in a court of law to divulge any confidential communication whatever made to him as a priest”.
During the referendum campaign of 1972, a “Defend 44” group was established to preserve article 44. At one rally the editor of the Catholic magazine, Approaches, contended the next step would be the introduction of divorce and contraception in Ireland.
Archbishop John Charles McQuaid had retired at the beginning of the year, and the amendment was approved by over 84% of voters.
The country was clearly changing.
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