In all the twists and turns of the saga of Enoch Burke, it is easy to forget what is at stake. It’s not what it seems to be.
It is not even really about Burke. At its heart is an issue the State has consistently refused to deal with: the rights of students and parents in the education system.
It doesn’t seem like this because Burke has been very good at making it all about him. Whatever anyone thinks of him or his views, he has the courage of his convictions, and that implacable resolve has an outward sheen of heroism. Courts, prison, dismissal from his job, arrest this week for defying an injunction and turning up again and again at Wilson’s Hospital School, the threat of daily fines of €700 – nothing deters him.
A democracy always has to have some respect for civil disobedience. As George Orwell put it, “sanity is not statistical”. Being part of a small familial tribe that has placed itself at odds with the large majority of Irish society does not make Burke either mad or bad.
Four years, five courts, 29 judges... the Burkes of Castlebar and their never-ending legal battles
Fintan O’Toole: Enoch Burke is no freak. His extreme logic was part of Irish education for years
The Burkes of Castlebar: Who are the high-achieving family from Co Mayo?
Enoch Burke is someone I’d like to hug
But it also doesn’t make him right. Or even make him properly the star of this strange show.
Firstly, Burke is far too slippery to be a hero. He has created his own dilemma by trying to have everything both ways. He wants the courts to vindicate him – but does not feel bound by anything the courts do or say.
His idea of legality is entirely one way. The law is good if it does what he wants, and entirely illegitimate if it doesn’t.
The great irony of this epic is that the legal system actually made it clear to Burke that it was prepared to support him in his demand for a fair hearing from his employers. It showed every inclination to uphold his rights.
The High Court indicated it would have been willing to grant Burke an injunction halting the school’s disciplinary process against him on procedural grounds – if Burke merely agreed to comply with previous court orders.
Inescapable logic
Had he agreed, the school would not have been able to dismiss him before a full hearing of the case in the High Court. In the meantime, he would have remained suspended on full pay – not exactly a condition of martyrdom.
But he chose not to agree to comply with the process that would have given him that full High Court hearing. This is not persecution.
It is simply the inescapable logic that, if you want the courts to come to your aid, you have to accept their legitimacy. You cannot simultaneously demand that the rules be applied punctiliously and claim that the rules do not apply to you because you are doing God’s will.
This is not, then, classic civil disobedience, which involves defying the law and accepting the consequences. It is, rather, a claim to enjoy a very special privilege: everyone else (and specifically the board of Wilson’s Hospital) should obey the court but Burke does not have to do so.
And at the heart of this claim of privilege is a bigger and more consequential claim: that religious righteousness trumps everybody else’s rights. This is what makes the Burke case so awkward for the State – because the State has consistently failed to say that it does not.
[ Enoch Burke returns to Wilson’s Hospital school againOpens in new window ]
What has been lost in Burke’s self-created drama is a person who is literally nameless – the student he refused to name.
This whole story began with the staff of Wilson’s Hospital being asked by their principal to give a student who is transitioning their gender the respect of calling them by their new name and using their preferred pronouns.
There’s a simple question: does that student have rights in the education system? Do their parents – who presumably support the student’s transition of their gender identity – have rights?
Basic safety
These are not abstract questions. Transitioning is a difficult process for a young person. It is a matter of basic safety that a student who is in the middle of that process is treated with kindness and understanding. There is a duty of care.
Let’s imagine that the school adopted Burke’s position, which is to tell the student that what they are doing is an abomination, and to call them by a name they no longer wish to use because it denotes a gender identity they do not have. What are the consequences?
Effectively, to either drive the student out of the school or to make them (and their parents) live with a regime that inflicts daily suffering and creates a serious danger of lasting psychological harm. This is, plainly, discrimination: it means that a student is denied, on the basis of their gender identity, a safe environment in which to learn.
And this, remember, is what Burke is fighting for. He believes that his right to have his religious belief endorsed and upheld in his workplace is much more important than the rights of the student and their parents – and than the school’s duty of care to them.
This is what gives Burke the courage to be so implacable: he genuinely believes that he is acting for God. But it’s also what makes his idea of rights so crude – there is no room for conflicting rights to be balanced or adjudicated.
Indeed, there cannot even be a conflict of rights, because God has already made the call and Burke is His master’s voice. Conscience does not really come into it: the Bible (and Burke’s interpretation of it) has already issued the command.
What Burke is really demanding is not the right to rebel against an orthodoxy but the power to impose one. At issue for him is not conscience but obedience.
The problem, though, is that the State has, throughout its history, effectively sided with this Burkean view. It has indeed allowed, especially within the education system, the rights of those who believe they are acting in God’s name to trump those of students and parents.
[ Enoch Burke saga far from over with further appeals likelyOpens in new window ]
The whole system of religious-dominated education has been based on the principle that schools exist primarily to serve a godly mission. Those who do not submit themselves to that purpose are, at best, barely tolerated and, at worst, blatantly discriminated against.
‘Don’t ask, don’t tell’
Having allowed schools to fire teachers for what they do in their private lives and to discriminate against non-religious students and parents, the State has settled down into a kind of “don’t ask, don’t tell” system of evasion and avoidance. It has never come up with a coherent policy to guarantee genuine freedom of conscience in the education system.
In that context, Burke is not just some kind of freak. He is expressing in an extreme way a logic that has permeated Irish education for most of the history of the State: that religious conviction is the primary value around which all other rights must be shaped.
A multicultural society will increasingly have to deal with varying applications of that logic. Is it okay to limit what girls should be allowed to learn, or to teach that queer people must be regarded as perverts, just because you truly believe that this is what God wants?
A pluralist democracy has to be clear: it is not okay. The right to religious conscience does not allow anyone to undermine the rights of others to be educated in an environment that respects their consciences too. Burke has shown where we end up if we go on failing to make this explicit throughout the education system.