The State's payment of school chaplains is a breach of the constitutional guarantee that the State will not endow any religion, the Supreme Court was told yesterday.
The court reserved judgment on an appeal by the Campaign to Separate Church and State Ltd against the High Court's dismissal of its action to stop the Minister for Education paying school chaplains. The five-member court was presided over by the Chief Justice, Mr Justice Hamilton.
In January 1996 the then president of the High Court, Mr Justice Costello, ruled that the State was having regard to the rights of parents vis-a-vis the religious formation of their children by paying chaplains' salaries.
The judge ruled that the payment of school chaplains did not infringe the Constitution, and dismissed the action against the Minister for Education by the Campaign to Separate Church and State.
Mr Justice Costello said it was claimed that the payment by the Department of the salaries of community school chaplains breached Article 44 (2.2) of the Constitution, which states that the State guarantees "not to endow any religion."
The cost of chaplains' salaries payable by the State was £1.2 million, the judge said.
It was obviously the intention that in Catholic community schools the chaplain would be a priest, but a small number of lay persons and nuns had been appointed as chaplains. Three Protestant comprehensive schools had lay chaplains.
The proper construction of Article 44 meant that the payment of salaries of teachers of religion in community schools - even if such teachers were ministers of religion or members of a religious order - and the payment of salaries of teachers of religion in comprehensive schools did not constitute an endowment of religion.
The judge said the campaign accepted that this was the situation. It contended that the payment of salaries of teachers of religion was permissible, but the payment of salaries of chaplains was not.
By paying the salaries of chaplains, the State was having regard to the rights of parents vis-a-vis the religious formation of their children.
The payment of salaries of ministers of religion and members of religious orders did not in itself mean that the State was endowing the religion they professed. Accordingly the payments were not unconstitutional, he had ruled.
Opening the appeal against Mr Justice Costello's ruling Mr Gerard Hogan SC, for the campaign, said the issue was whether the payment by the State of the salaries of chaplains in community schools contravened Article 44.2.2 of the Constitution. It was his case that the payment of such monies constituted an endowment of religion and was in breach of the Constitution.
Counsel said the monies were paid for religious services and other matters not concerned with religious instruction, but rather with pastoral care.
The guarantee against endowment of religions should be read in the broadest sense, he said. The object of the provision was to ensure the State did not financially support any religion, and his argument was that the State, in paying school chaplains, was doing so.
Mr Hogan said Mr Justice Costello had relied extensively on Article 42.4 of the Constitution in his decision. That Article declared that the State "shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation."
Counsel said the obligation to provide other educational facilities was a "very weak one" in contrast with the obligation to provide free primary education and with the express provision against endowment of religion.
The stipulation in Article 42.4 that the State must have due regard to the rights of parents was intended as a check or restraint on the State when it was providing educational facilities, he submitted.