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Freedom of Religion and Equality, demonstrates a reluctance to deal with…
Freedom of Religion and Equality
Freedom of Religion
article 44.2
no discrimination on grounds of religion
every religion free to manage own affairs
freedom of conscience
McGee v AG
struck down ban on contraception, freedom of conscience means freedom to choose a religion or not and act in accordance and can't be coerce to act to the contrary of conscience
Corway v Independent Newspapers
extends beyond people who have a religion - to agnostics and atheists
not defined -
Johnston v Scientology
scientology controversial question if its a religion
limitations
Murphy v IRTC
challenge to ban on religious advertising unsuccessful - aimed at a
class of materia
l rather than set of people professing religious belief
Temple Street v D
parents not consenting to blood transfusion for daughter, childs right to life prevailed over relgiious freedom
ban on discrimination
Quinns Supermarket v AG
ban on selling meat on Sunday and evenings, exception for kosher meat - held some favourable treatment justified but went too far - should have been allowed open a few days not whole day
positive or negative discrimination not allowed
need to balance religious freedom and non-discrimination
total exemption further than necessary
Mulloy v Minister for Education
priest teaching in Nigerial denied credits because a priest, held unconstitutional discrimination - any difference in treatment not permissible unless required to give effect to free practice of religion
M v An Bord Uchtala
ban on mixed faith couples fom adopting unconstitutional - no rational basis for the ban
McGrath v Maynooth College
religious institutions right to manage own affairs, dismissed 2 lecturers for refusing to wear clerical dress and reside within college - held - religious institution managing own affairs, must be respected
Re Article 26 and Employment Equality Bill
can be upheld when necessary for general ethos - held fair balance - to be assessed on case by case basis
Greally v Minister for Education
preferential treatment for those with background of teaching in Catholic School - held not discrimination - based on experience not belief - fairer than if based on religion
establishment and endowment of religion
unclear what endowment meant
Campaign to Seperate Church and State v Minister for Education
challenge to state funding school chaplains - held - endowmen means payment to religions in perpetual form - on facts not substantial- didn't bolster any particular religion- not forcing child to engage in religious instruction
blasphemy
removed by referendum
2009 act very hard to prove
Corway v Independent Newspapers
not for courts to define blasphemy
equality
approaches
new cases
Donnelly v Minister for Social Welfare
case where father applied for domestic carer's allowance, refused as only for when children were at home and not in hospital - rational when in hospital having needs taken care of by state - challenge based on parents always with child anyways - HC objectively justified - SC upheld - discussed equality probably more than what was needed - court rejected burden of proof always rest on person challenging - entitled to presumption of constitutionality - in civil litigation - he who asserts must prove - considered proportionality - this was a pure equality case - someone treated differently -
proportionality not right approach
- look at the r
ationality of the decision
- court not entitled to substitute own view of what would be fairer -
act not unconstitutional -legislation can have more than one objective - won't be obliged to craft a perfect fit
core is to
prevent discrimination on intrinsic aspects
- is more than doubt - where differential treatment affects memberss of group that iss vulnerable to prejudice and stereotyping
burden of proof not reversed in an equality case - presumption of constitutionality - burden of proof means who asserts must prove
legislature entitled to make policy choices and entitled to distinguish between classes of people - part of legislating - court couldn't substitute own view of what's fairer
in this decision not based on
intrinsic aspect of human personality
, not irrational and objectively justified
Burke
right to be home schooled and executive power of estate - also brought up equality - exclusion of home school children from caculated grades - court - no way this issue could be categorised - whether a child is homeschooled - look if it affect an intrisc aspect of human personality - shows p
otentially more to human personality doctrine didn't decide it on this case
reserved question for another day as succeeded on another right
expanding approach
Murphy v Ireland
alleged to be in IRA, charged with tax crimes, went to special criminal court - held DPP obliged to give reasons although not in detail - new approach -
look if going to affect fundamental aspect of human personality
and if it does so in discriminatory manner
Minister for Justice v O'Connor
legal aid in Ireland vs England, dismissed case as pedantic- did say article 40.1 requires equality of treamtment not identity of treatment - should be
broader
than Quinn supermarket
Moore
disparity of treatment with regards to suspended sentences contrary to equality and liberty
human personality doctrine
based on approach
discrimination based on essential aspect of human personality e.g. based on gender, race or age
context approach
discrimination takes place in relation to context to essential aspect of human personality e.g. work
Quinn Supermarket v AG
meat kosher case, looked at context - trading hours not an essntial aspect of human personality so equality not engaged (critcised by Oran Doyle - jews could wear stars and not engaging equality), another judge used based on approach but since supermarket not a person not engaged
Murtagh Properties v Cleary
- context approach favoured by Kenny J
Brennan v AG
- wexford farmers challenged a valuation act, as made worthless through time due to changing property values - court acknowledged
difficult and elusive concep
t - used the based on approach - can occur in trivial situations but offend 40.1
Re Article 26 and Employment Equality bill
age discrimination, exception for those over 65 or under 18 - article 40.1 engaged but wasn't arbitrary or irrational - struck a fair balance
J & J Haire
only applies to individuals not companies (cuts to pharmacists vs cuts to other health care professionals
indirect discrimination
can have a harsh impact on some people
Fleming v Ireland
argument that prohibitng assisted suicide had disproportionate impact on those suffering from terminal conditions - held - court doesn't extend to indirect effects of an objectively neutral law
DX v Buttimer
need help as suffering from disability - held important those suffering from disability not placed at a disadvantage due to that disability - family law case - entitled to be assisted by friend
MD v Ireland
acknowledge applying same treatment to all humans not always desirable could lead to indirect inequality
constitution
article 40.1
all citizens as human persons equal before the law
Oran Doyle
court has taken a restrictive vision of this and subordinated it to other guarantees
Kelly
underdeveloped area of jurisprudence, restrictive interpretation maybe less so in the future
differences in capacity, physical and moral and of social function
State M
illigitimate children not part of family unit different to legitimate children
Lowth
better financial protection justifed for deserted wives over deserted husbands due to pay disparity -
legitimate legislative purpose
De Burca
challenge to jury act, property requirment to serve on jury, women exempt - unconstitutional - property requirments no difference in capacity and gender issue arbitary women have functions outside the home - a number of the
judges sidestepped the issue
Murphy
difference in tax for married couples, breached rights due to importance of
family
, didn't violate equality
State (Nicolau) v an Bord Uchtala
adoption act not requiring consent of natural father - court held- no guarantee all citizens treated the same - natural father different to natural mother - talks about natural father potentially raping or seducing the mother - heavily critcised by
MAcCormaic
as one of the worst SC decisions
T'OG v AG
adoption act precluded adoption to childless widow, couple had custody of child wanted to adopt, woman died - man unable to adopt - held to be discriminatory as no difference between men and woman - no justification provided
even if can show discrimination exists, applies to him or her as a human person - than needs to overcome the limitation- can be justified due to differences in capacity, physical and moral and of social function
courts have adopted a very differential approach to this to allow justifications
SM
indecent assault on man 10 years, 2 years for women - struck down as unconstitutional left to common law to dictate sentence -
Maher
increase to 10 years for women
MD
difference justified as chance of woman getting pregnant which
justified unequal treatment
Webster
private housing different to public - legitimate purpose to control state housing stock
Byrne v Director of Oberstown
different rules between Oberstown and St Patricks - no reason - apply prison rules
A v Minister for Justice and Equality
family flee country, get to Ireland different times, married after fleeing country, if married before right to reunify - held constitutional as the principle is to resume life in a different country - balancing rights of a family with riht to control immigration
Udaras Uchtala v M
procedures of inter-country perspective- disparity in treatment offended the article
demonstrates a reluctance to deal with equality issue