I. Historical Background
The Anglican Church of Ireland was the church established by law. In this account it took a specific position in Ireland. Until the Roman Catholic Relief Act in 1829 Catholics were affected by legal disadvantages. In 1869 the Church of Ireland was disestablished by Act.
II. Social Facts
The population of Ireland is largely of Roman Catholic faith, nearly 88 % are baptised in the Roman Catholic Church. Aside there exist Protestant Churches and small Jewish, Muslim and Orthodox communities.
Though belonging to the Common Law system Ireland has a written constitution including judicial review of legislation. However there exists no specific constitutional court. Judicial review is entrusted to the High Court and on appeal to the Supreme Court. Consequently there arises a relationship between the constitution’s regulation and the common law in Ireland.
III. Basic Categories of the System
Art. 44 of the Irish Constitution is basically ruling the relation between State and Church. According to Art. 44 the State recognised the existence of God and the homage of public worship. Freedom of conscience and free profession and practise of religion are guaranteed. A public financial support from religious communities is forbidden, as well as public discrimination for religious reasons. The State has to treat religious schools equally concerning financial supports; the financial supports must not affect children to attend a certain school. A religious denomination has the right to manage its own affairs. The property of a religious denomination must basically not lose its original function.
IV. Cultural and social exercise of functions
The Irish primary and secondary schools are largely organised denominational, although they are partly financed publicly. Although primary schools are often called “national schools”; they are not public property or exclusively supported publicly. Parents have the possibility to establish a primary school supported publicly under certain conditions. For instance parents need to prove the necessity of establishing regarding expected enrolments or non-existence of a similar school in the neighbourhood or a nearby area. Judicial inconvenience arrived after 1970, when a new curriculum provided an incorporation of religious instructions into secular subjects. Consequently pupils wishing to avoid religious instructions had some difficulties. This incorporation however was not according with the Constitution (Art 44.2.4). The result of the Constitutional Review Group discussing this matter was that they agreed upon the fact that the school system needed a change.
The State is not obliged by the Constitution to fund secondary schools. Secondary schools are largely owned by the Roman Catholic Church. Aside there exist schools of Protestants and one Jewish secondary school in Dublin. New developments include Comprehensive Schools and Community Schools, which are fully-funded or funded for a greater part, but nevertheless of basically denominational character.
Newspaper and magazines in Ireland are free to report about religious concerns. Also religious groups are free to publish their own material. A limitation of freedom of publishing is general law, especially concerning deformation. This freedom of publishing is similar in electronic media. Inconvenience exists concerning the advertisement of religious contents. In the past this practise was strictly forbidden, while the Broadcasting Act from 2001 relaxed this ban. A final result is still open. However broadcasting companies are allowed to broadcast religious services and religious programmes.
V. Legal foundations
In 1871 the Church of Ireland was disestablished with the result that state and church have been separated since then. Only in school this principle of separation is not practised. The basic legal source defining the relation between Church and State is Art. 44 of the Constitution from 1922 as it is in force today. Art. 44 guarantees a free practise of religion and the right of religious denominations to manage there own affairs. Religious law like for instance canon law of the Roman Catholic Church is considered as foreign law. Therefore its precepts must be proved by the evidence of expert witnesses.
Every church or religious community has the position of a voluntary association. A status of legal personality is not automatically granted. They have rather the status of unincorporated associations. Due to this legal status consequences arise in the area of private law like property of churches and religious groups. In general the church property concerns are vested in trustees.
Public financing of religion is legally interdicted. The internal administration of churches is totally independent from the State.
A civil marriage is not mandatory. Often marriages are celebrated according to religious rites. Legal arrangements give such religious marriages a civil law efficacy, if certain conditions are met. It seems that only the Roman Catholic Church has an own jurisdiction in Ireland. But only decisions from courts founded under Constitution have a civil legal effect.