The Irish requirement for Muslim men to promise not to take a second wife may signal a new wave of controversy over religious practices writes Carol Coulter, Legal Affairs Correspondent
The Irish requirement for Muslim men to promise not to take a second wife may signal a new wave of controversy over religious practices, writes Carol Coulter, Legal Affairs Correspondent
As Ireland develops as a multicultural society we're likely to see a significant increase in the kind of questions raised this week over the issue of Muslim men and second wives.
When it was recently revealed that the Department of Justice required Muslim men seeking naturalisation to swear that they do not have, and do not intend to have, a second wife, the practice was described as discriminatory by the Irish Council of Civil Liberties (ICCL). However, it was defended by the Department, which pointed to a case in which a Pakistani man sought Irish citizenship for his children by his second wife, who he married in Pakistan while he was also married to an Irish woman.
In a statement, the council pointed out that its opposition to the Department of Justice requirement had nothing to do with condoning polygamy, but rather whether one group should be singled out and required to sign an affidavit promising not to break Irish marriage law, or, indeed, any other aspect of Irish law.
The statement pointed out that bigamy is illegal in Ireland and that no second marriage would be recognised while the first marriage was still valid. Therefore any such declaration would be unnecessary, it said.
It also pointed out that, while polygamy is permitted by the Muslim religion, it is not practised by many Muslims and is not legal in many states with majority Muslim populations.
Therefore, according to the ICCL, it is discriminatory to assume that all Muslim men are contemplating polygamous marriages.
Many more such issues are likely to arise here. We can get a taste of what's to come from controversies arising in neighbouring European countries.
Two weeks ago, a Muslim girl in Britain, Shabina Begum, lost her court case for the right to wear the jilbab, the all-enveloping robe that covers a woman's body from head to toe, in school.
She had rejected the option of wearing the shalwar kameez, the trousers and tunic worn by many Pakistani women and acceptable both to the school and the Muslim clergy representing the community from which most of the Muslim girls in her school came.
The ruling follows the recent passing of a law in France which prohibits the wearing of prominent religious symbols in state schools. That law is aimed primarily at the headscarves worn by some Muslim girls.
This week the European Court of Human Rights in Strasbourg upheld a decision by the University of Istanbul to ban the wearing of the Islamic headscarf, a ban that has been in force for many years under Turkey's secular constitution.
In a judgment likely to be cited in other European states, it found that such restrictions were justified in principle, and proportionate to the aims set out in the constitution and the laws of Turkey on secularism and the rights of women.
While Muslims have been at the centre of many recent controversies, the practices of other religions have also come under state scrutiny over the years. Individual EU member-states have focused on different issues, reflecting their historical and political attitudes to religion.
For example, in the 1960s, men of the Sikh community in Britain won the right to keep their turbans in situations normally requiring helmets or uniform caps, such as when riding motorbikes, or while working as bus conductors or in the police force.
However, they won this right under laws outlawing racial, not religious, discrimination. Until the enactment of the Human Rights Act in the UK in 2001, there was no guarantee of religious freedom.
In Britain in 1983, Sikh boys won the right to wear the turban in school. However, the French government is now turning its attention to the Sikh community, and has said that the turban, along with the veil, will be banned in schools from September, but the debate continues.
Unlike France and Turkey, the Irish State is not secular.
Article 44.1 of the Constitution states explicitly: "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 honour religion."
The courts have ruled that, while this gives a special status to religious practice, it does not mean the State privileges a particular religion. The seminal case clarifying this is called Quinn's Supermarket v Attorney General (1972). Here the supermarket challenged an exemption enjoyed by kosher shops to restrictions on opening hours for butchers' shops, allowing kosher shops to stay open late on Thursday nights so that people could buy meat for the Sabbath.
The Supreme Court found that discrimination in favour of a specific religion was permissible under the Constitution if it was necessary to allow its free practice. It also found that the constitutional protection enjoyed by religion was not restricted to the Christian or Jewish faiths.
The courts have also shown a reluctance to interfere with churches' handling of their own affairs, even when they may have infringed people's rights. This arose in an unsuccessful challenge by two priests to their dismissal as lecturers by Maynooth seminary.
We can only guess at how these precedents would be used in contentious religious cases in future.
It is unlikely that schools here would object to Muslim girls wearing a headscarf. But what about the jilbab instead of the school uniform? What if Muslim girls objected to sharing classrooms with boys, and demanded the provision of segregated education in a co-educational school, when it was the only school available? The European Court of Human Rights ruling this week stated that restrictions on outward manifestations of religious belief, and on certain practices, is permissible in the interests of the rights of others.
What about circumcision? Male circumcision is not illegal, and was widely used in Western countries after the second World War, and is now still practised for religious reasons. It is required by both the Muslim and Jewish faiths.
A boy died last year in Waterford following a circumcision that went wrong, and it was revealed that requests for this procedure in hospitals in the South Eastern Health Board area had been routinely declined. This policy has since been reviewed, and the procedure is now available to those who require it for religious or cultural reasons, for boys over 12 months.
Female circumcision, however, has never been permitted in any Western country and is unlikely to be. It has long-lasting damaging effects and, if it were carried out here, would most likely be regarded as assault.
"Female genital mutilation is a different kettle of fish," explains Dr Philip Crowley of the Irish College of General Practitioners, which is often contacted by GPs seeking guidance on minority cultural issues. "Some form of pragmatism has to inform attitudes. There is a need for dialogue."
Further complex issues arise in relation to marriages.
The Roma community, for example, permits marriage at an earlier age than allowed by Irish law. Such under-age marriages will not be legally recognised here.
What about arranged marriages? It is not illegal for families to arrange marriages, and, indeed, arranged marriages were part of life in rural Ireland well into the 20th century. However, they are now seen as culturally alien.
Marriage law in Ireland requires that both parties freely consent, and if coercion were found to be a factor it would be grounds for annulment. However, if both young people freely consent to their families' involvement in arranging their marriage, then it is lawful.
As the multicultural nature of Ireland develops, other issues will inevitably end up before the courts, and these will be decided on a case-by-case basis. But cultural or religious requirements can never justify harming children or denying women equal rights.
"It is perfectly reasonable to have a set of laws that can't be broken by anyone," Dr Crowley adds.