The Irish Constitution of 1937
The Irish Constitution of 1937 provides an interesting case study both in terms of the relations between church and state as well as the more general question of religious freedom. The Constitution is considered “secular” inasmuch as it does not establish or endow any state religion. The Constitution recognizes the “public worship” due to Almighty God and the respect and honor due to religion. The Constitution also recognizes the special status of the Catholic Church as the “guardian of the Faith professed by the great majority” of the body politic. This special status, therefore, is not one mechanically imposed on the body politic by the political authorities in the sense of a state absolutism. On the contrary, the special status of the Church is duly “recognized” by the state in virtue of the Faith professed by the vast majority of its citizens. At the same time, however, the state recognizes other churches and denominations already firmly established as of the time of the Constitution.
Article 44. 1.i) The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence and shall respect and honor religion.ii) The State recognized the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.iii) The State also recognizes the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.
The Constitution also provides for religious freedom (private and public) subject to the requirements of public order and morality. Furthermore, the Constitution guarantees against any type of discrimination based on religious profession and guarantees the rightful autonomy to the Church and other religious communities.
Article 44. 2.i) Freedom of conscience, and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.ii) The State guarantees not to endow any religion.iii) The State shall not impose any disabilities or make any discrimination on the ground or religious profession, belief or status.iv) Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.v) Every religious denomination shall have the right to manage its own affairs, own, acquire, and administer property, moveable and immoveable, and maintain institutions for religious or charitable purposes.vi) The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.
Does such a Constitution conform to Catholic principles? Can a Catholic even give praise to such a Constitution given that it does not conform to the historical “ideal” in terms of an exclusive relationship between the Catholic Church and the Catholic State? Indeed, Eamon de Valera sought approval of the new Constitution from Pope Pius XI. While the Pope was sympathetic he stopped short of giving an official positive endorsement insofar as it did not measure up to the historical “ideal”. In the end, Pius XI simply stated: “I do not approve, neither do I not disapprove; we shall maintain silence." (Stephen Collins, Political Correspondent, Irish Times) This “silence”, however, was soon broken by Pope Pius XII when he declared:
“Your constitution is intended to be an instrument of prudence, justice and charity at the service of a community which has never, through its long Christian history, had any doubt about the internal, as well as the temporal implications, of that common good which it professes to seek through the conjoined prayer, toil and oftentimes heroic sacrifice of its children. Grounded on the bedrock of the natural law, those fundamental human prerogatives which your Constitution undertakes to assure to every citizen, within the limits of order and morality, could find no ampler, no safer guarantee against the godless forces of subversion, the spirit of faction and violence, than mutual trust between the authorities of church and state, independent of each other, in its own sphere, but as it were allied for the common welfare in accordance with the principles of Catholic faith and doctrine…” (Cf. Bruce Francis Biever, “Religion, Culture, and Values”, Ayer Publishing, 1976, p. 295)How do we explain this change in position from one Pope to the next? Does this signify a substantial change or “rupture” in terms of immutable principles or merely an accidental change in connection with the “question of fact” – the prudential judgement relative to concrete circumstances in the order of facts, hic et nunc? To what extent can the ideal in the abstract order of speculative ideas – as it was historically realized to a greater or lesser degree in Catholic nations during the Middle Ages – now find its legitimate application in a context where there is lacking a true unity of Faith among the body politic? In the Pontificate of Pope Pius XII, we begin to sense a new “historical ideal” (i.e., hypothesis) emerging relative to the circumstances in the modern era – a context characterized by mixed populations in practically every corner of the world largely resulting from a progressive globalization. This affirmation of “fundamental human prerogatives” guaranteed for each citizen provides context for the Pope’s subsequent affirmation of fundamental human rights: “…the right to maintain and develop corporal, intellectual, and moral life, specifically the right to religious formation and education; the right to worship God in public and in private...” (Pius XII, Radio Message of December 24, 1942).