How a case can be misinterpreted to put the Church in a bad light
This is a week for Christians to reflect all that has been achieved in the difficult field of ecumenism, and to look forward to what may yet be accomplished.
For some people, the need to look back remains strong all the same. The Church of Ireland Archbishop of Dublin, Dr John Neill, spoke last week of his ‘worry’ that some commentators now claim the dominant Catholic ethos of the Irish constitution in the past “had never been used in a negative way where other denominations were concerned.”
Dr Neill recalled ‘the Tilson case’ - often cited by those who lament the influence of the Catholic Church on mid 20th century Ireland.
For Catholics of relatively tender years, it can be difficult to understand the hurt that older members of the Church of Ireland express over that era.
Any laws or practices with a uniquely Catholic character were gone by the 1970s. But although our experience of life may be different, it behoves us to respect other people’s accounts of theirs.
There is a corresponding obligation, however, on those who recall past injustices not to exaggerate or overstate their case. Unfortunately, Archbishop Neill may have done just that by drawing down the Tilson case last week.
The consequence of the Tilson case, he told Patsy McGarry of the Irish Times, “was social isolation for many Protestants, particularly in rural areas. Those who grew up here in the 1950s did feel they lived in a confessional State,” he said.
The Irish Times report of the Neill interview gave what appeared to be the necessary facts.
In 1950, Ernest Tilson, a member of the Church of Ireland, placed his children in a Protestant home so that they could be raised as Protestants. His Catholic wife took a High Court action against him. The then president of the High Court, Mr Justice Gavan Duffy, ruled that Mr Tilson was obliged to raise his children as Catholics as he had given a written promise to do so. This promise was required by the Catholic Church’s 1908 Ne Temere decree which stipulated that all children of a mixed marriage had to be raised as Catholics. Judge Duffy gave what the Irish Times called ‘further justification’ for his decision by referring to the special position of the Catholic Church, then part of Article 44 of Bunreacht na hÉireann. The children were ordered to be returned to their mother. Mr Tilson appealed to the Supreme Court and lost.
But there is a great deal more to the Tilson case than either Archbishop Neill or the Irish Times would have us believe. Undoubtedly, what gave the case its confessional flavour was the tenor of the High Court decision given by Judge Gavan Duffy, a fervent Catholic, and the fact that the decision allowed a Protestant party to a marriage to be bound contractually by any promise he or she would give that the children would be brought up as Catholics in line with the Ne Temere decree. But it is the Supreme Court’s reasoning, not that of the High Court, that mattered. And it had nothing to do with imposing Catholic teaching. In fact, in upholding the contractual validity of the pre-marriage promise given by Mr Tilson, the court was rejecting an archaic principle of British law that would be the object of public scorn if it still applied in Ireland today.
What happened in the Tilson case was this: Mary Barnes became pregnant at the age of 16 and Mr Tilson, the father of her child, married her. The couple went on to have three more children, although their marriage was unhappy and they were very poor.
One day, while his wife was out working, Mr Tilson surreptitiously removed the children first to his parents’ home and then to Mrs Smyly’s Home ‘designed for necessitous children’ in Dún Laoghaire. From then on, it was understood, the children would be brought up in the Church of Ireland tradition.
When the children’s mother brought court proceedings, Mr Tilson sought to rely on a legal principle from British common law, then in force in Ireland. This was ‘patria potestas,’ or paternal supremacy - the father’s right to determine the child’s education and religion.
JUDGE Murnaghan of the Supreme Court was at pains to avoid holding that Articles 41 and 44 of the constitution conferred any special privileges on the Catholic Church in such matters. It all turned on Article 42.1 which “guarantees to respect the inalienable right and duty of parents to provide ... for the religious and moral, intellectual, physical and social education of their children.”
It was this provision, using the word ‘parents’ in the plural, that caused the Supreme Court to abandon the notion of paternal supremacy. Once the father’s priority in such matters was set aside, it was obvious that a promise made by one parent to another concerning the religious upbringing of their children could be enforceable at law.
It is not hard to understand how the Catholic Church’s own rules in Ne Temere made life difficult for Protestants. We can perhaps all acknowledge that where both parties to a mixed marriage have strong faith, the religious upbringing of the children presents challenges to which there are no easy answers.
But to suggest that the Tilson case was about the enshrinement of Catholic dogma in State law is to misrepresent both that case and the contemporary attitude of the courts.
In an earlier case, Re Frost (1947), the paternal supremacy rule had been upheld and the Supreme Court found in favour of the Protestant parent, despite his earlier promise to raise the children as Catholics. “Does the welfare of the children require that their father’s determination that they should be educated as Protestants be disregarded?, ” asked Chief Justice O’Sullivan. “In my opinion, the answer to that question must be - ‘No.’ ”
Funnily enough, both Archbishop Neill and the Irish Times were in a position to know all this. TCD lecturer Gerard Hogan, SC, published an article entitled “A Fresh Look at the Tilson Case” in The Irish Jurist some time back. Coincidentally, Dr Hogan was the chairman some months ago of a debate in TCD about the role of religion in the Irish constitution.
The guest speakers at the debate were Archbishop Neill, Irish Times Religious Affairs Correspondent Patsy McGarry and yours truly. Archbishop Neill made comments about the old Ireland broadly in keeping with his remarks of last week and Patsy McGarry criticised the Tilson case.
Dr Hogan closed the debate with a memorable off-the-cuff speech in which he did not fail to acknowledge past ills in Irish society, but set the record straight on the Tilson case.
As to why neither the archbishop nor the Irish Times got the message I cannot say. People forget, I suppose. Or perhaps it’s an example of that age-old truth which I learned the hard way back in national school when I was justly punished for some minor misdemeanour that I now forget. “I didn’t know it was forbidden,” I protested. “Ah yes,” said the master. “But Mr Mullen, there’s none so deaf as those who do not want to hear.”
CONNECT WITH US TODAY
Be the first to know the latest news and updates
