Section
37
allows religious institutions such as
schools and hospitals to refuse to hire people on the basis of a reasonable fear
that such persons would undermine the religious ethos of that
institution.

Speaking in a Seanad
debate on
a Fianna Fáil Bill aimed at amending the section, Mr Shatter said that it was
his “unequivocal conviction….that it is simply wrong to exclude people from
employment or other opportunities in life on the grounds of gender, sexual
orientation, gender identity, family status, marital status, religion, age,
race, disability, race or ethnicity”.

He added: “The
bright-line pledge in our programme for Government is that: “people of non-faith
or minority religious backgrounds and publically identified LGBT people should
not be deterred from training or taking up employment as teachers in the
State.”

However he said that
the Government faced a practical challenge of commiting “to both equality of
treatment and tolerance of and respect for religious differences”.

He said he was unsure
that the Fianna Fáil Bill would pass constitutional muster.

Mr Shatter said: “The
test the Oireachtas faces when it legislates in this area is whether it has
preserved a proper balance between the rights of religious denominations to
manage their own affairs and maintain institutions for religious and charitable
purposes and the rights of other citizens to equality before the law and to earn
their livelihood.

“The courts have
enunciated this test. It is important that we consider the relevant
constitutional case law. In their case law, the courts have endorsed the
proposition that occasions arise when it is necessary to make distinctions in
order to give life and reality to the constitutional guarantee of the free
profession and practice of religion.”

He quoted a 1979
Supreme Court case, in which Justice Seamus Henchy said that the State had
recognise what he called the “disabilities and discriminations which flow from
the tenets of a particular religion” in order to “to give vitality, independence
and freedom to religion”.

He added: “It would
therefore appear that it is constitutionally permissible to make distinctions or
discriminations on grounds of religious profession belief or status insofar –
but only insofar – as this may be necessary to give life and reality to the
guarantee of the free profession and practice of religion contained in the
Constitution.”

He noted that the
Constitution didn’t state that religious rights must always trump equality
rights.

However he said that
there were “competing rights” including “freedom of religion, freedom of
assembly, right to privacy and to earn a living, freedom of expression and
conscience and the right to freedom from harassment and discrimination”.

The Minister for
Education Ruairí Quinn also spoke on the debate,
the first time two Ministers have spoken on the same debate in the
Seanad.

Mr Quinn also
acknowledged that the issue was about balancing “the rights of those who wish to
receive a denominational education with the rights of those employed within the
schools system”

He said: “Despite the
many societal changes I have talked about, many Irish parents continue to wish
to have their children educated in an environment supported by a denominational
religion, which is entirely their right.

“This is a valid
exercise of parental choice and is one which is underpinned by our Constitution.
The Supreme Court has ruled that the Constitution contemplates children
receiving religious education in State schools to be in accordance with their
parents’ wishes. It also recognises that parents have a right to have religious
education provided in schools that their children attend.

“Given this backdrop,
what is a school to do where a member of its staff overtly rejects the ethos it
is mandated to uphold and deliver for its students? How is it to behave if it
has a genuine belief that appointing a prospective employee could lead to the
undermining of the characteristic spirit which is the hallmark of the school?

Senator Averil Power,
who introduced the bill, claimed that section 37 posed a threat “to thousands of
teachers, doctors, nurses and other employees”.

“People are at any
immediate risk and putting this issue on the long finger will leave them
vulnerable,” Senator Power claimed.

Independent Senator
Rónán Mullen said he appreciated the respect shown by Minister Shatter “for the
fact that there are competing values”.

He said “We must not
allow ourselves to run away or be run away with the notion that there is a
blanket right in law to engage in cruel and unjust discrimination.

“When the Supreme
Court considered this matter, not only did it find that the section was
constitutional, but it considered submissions from the Attorney General on
whether the legislation would be constitutional without it. I am open to
correction on that last point. There is a clear issue of competing rights that
must be protected.”

He added: “No one’s
rights, be they to equality, freedom of expression or to run institutions
according to their particular values, can ever be absolute. There will always be
competing rights.

“However, a
church-run school must be able to protect its ethos in the case of a teacher
who, for example, might tell a class that atheism is preferable to Christianity,
religion is a waste of time, all of us are nothing more than bundles of atoms
devoid of moral worth, the occult is a healthy spiritual community, there is no
such thing as objective truth, the unborn child is nothing more than a parasite
and can be aborted accordingly, marriage discriminates against polygamists’
partners or the State and not God is the ultimate arbiter of what is right and
wrong. These values are not held universally, yet they are essential issues in a
church-run school.”