David Norris (Independent) | Oireachtas source

I think in these amendments we are getting to the nub of the action. I commend the Minister of State on his amendments although it seems to be an incremental approach. I remember opposing this section strongly when it was introduced by the former Minister, Mervyn Taylor, but I think there should be certain principles enacted and enshrined. It is obvious that State-funded institutions should not be allowed to discriminate at all on the grounds of religion or belief. It would be mad to allow the State to fund religious discrimination against its citizens, which was, in effect, the situation under the original Bill.

It is not just gay people who are involved. There is also a question of religious belief and the question of people who are atheist. I am a retired fairy but I am definitely not an atheist, but I think that atheists have rights as well. I remember when we removed the special position of the Roman Catholic Church from the Constitution, so there is no longer any constitutional reason this should be sustained. The State has a duty to be neutral and impartial between religious, non-religious and philosophical beliefs. It has been stated that Directive 78/2000 of the European Union requires member states to allow discrimination on the ground of religion or belief, but this is not the case at all. Article 4 merely permits discrimination if countries want it but it also allows for far wider grounds for religious freedom. I will quote from the record of the Seanad - I think this is Senator Bacik but if I am wrong I am sure she will correct me:

We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with "loyalty to the organisation's ethos".

And:

There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring "national practice as existing as the date of adoption of the directive".

I believe this is based on a complete misreading of the EU directive because what Article 4 actually says is that member states may - and I emphasise the word "may" - provide that a difference of treatment shall not constitute discrimination in certain circumstances. In Article 4(2), "Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practice existing at the date of adoption of this Directive" in certain circumstances. It also reads: "This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law," and "this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos." It is really a question of "may" and "shall". The European Union directive does not oppose the kind of amendment we were suggesting but it gives freedom for states to provide a difference in treatment and apparent discrimination and so on and so forth, but it is a question of "may" all the time. It does not prescribe that this is what we have to do.

To make things even clearer, Article 8 ensures minimum requirements, not maximum requirements, for protecting equality and states: "Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive." That gives us carte blancheto go beyond what was being suggested. It goes on to state: "The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive."

Turning to the idea of including atheists in this, the European Court, in a judgment, recognised:

[T]he supporters of secularism are able to lay claim to views attaining the "level of cogency, seriousness, cohesion and importance" required for them to be considered "convictions" within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 ... More precisely, their views must be regarded as "philosophical convictions", within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of "respect 'in a democratic society'", are not incompatible with human dignity and do not conflict with the fundamental right of the child to education.

While the churches may propose and maintain very rigid doctrinal positions, in a democracy one should consider the behaviour of people, which is instructive in this regard. An MRBI poll conducted in 2012 found that 78% of Irish Catholics follow their consciences rather than church teaching when making moral decisions. This is an interesting finding. What constitutes the church and its ethos? Is it a compendium of doctrinal statements of a particular church or the belief and practice of the majority of people who constitute that church? I am a churchgoer and also attend Roman Catholic churches. I frequently hear priests of various denominations state the church is not Rome or Canterbury but the people. Almost 80% of the people are making up their own minds on questions of ethos.

Implicit in all of this is a distinction between State-funded bodies and bodies not funded by the State. I admit that there may be some small grey areas in this regard but when it is a question of fundamental human rights, the latter should be held to the same human rights standards as State-funded bodies. It is apparent and obvious that the State should not fund discrimination. However, it is also true that it should not tolerate discrimination. I thank the Cathaoirleach for his indulgence.