The State’s vigorous defence of the religious oath shows what can happen when matters of public policy end up in the hands of lawyers.
Róisín Shortall, the Social Democrats co-leader, and four other public figures have gone to the European Court of Human Rights to challenge the constitutional requirement that the president of Ireland and members of the Council of State, a body that advises the president, must swear an oath "in the presence of Almighty God" when taking up their roles. The five argue that the oath excludes conscientious non-Christians and non-believers from some of the most senior public positions in the State "unless they are willing to publicly declare and subscribe a formula which goes against their conscience".
In 2013, six members of the Council of State called for the removal of religious language from their declarations
In a forthright legal response to the claim, the Government has argued that the case should be thrown out because none of the litigants are directly affected by the requirement. It has also delivered a sweeping defence of the oath, however. Directly citing the European Convention on Human Rights, it said such declarations were “necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
This legal position almost certainly goes much further than the political stance of the current Government, which has already shown its willingness to dispense with the religious oath where it was able to do so without a constitutional referendum – in the case of witnesses in court proceedings. That was welcome and overdue.
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President Michael D Higgins has said he believes the religious oath should be replaced with an affirmation. In 2013, six members of the Council of State called for the removal of religious language from their declarations. The judiciary, members of which must also swear an oath on taking office, is now almost entirely secular. That is also increasingly true of the country they serve.
The social context has changed, in other words. The constitution should follow.