Fifth Amendment of the Constitution of Ireland

The Fifth Amendment of the Constitution Act 1972 is an amendment to the Constitution of Ireland which deleted two subsections that recognised the special position of the Catholic Church and that recognised other named religious denominations. It was approved by referendum on 7 December 1972 and signed into law on 5 January 1973.

Fifth Amendment of the Constitution of Ireland
To remove references to "special position" of the Catholic Church and to other named denominations
Location	Ireland
Date	7 December 1972 (1972-12-07)
Results Votes % Yes 721,003 84.38% No 133,430 15.62% Valid votes 854,433 94.54% Invalid or blank votes 49,326 5.46% Total votes 903,759 100.00% Registered voters/turnout 1,783,604 50.67%

Changes to the text

The amendment renumbered Article 44.1.1º as Article 41.1 and deleted the following two subsections from Article 41.1:

2º The State recognises 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.

3º The State also recognises 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.

Background to the deleted provisions

In drafting the Irish constitution in 1936 and 1937, Éamon de Valera and his advisers chose to reflect what had been a contemporary willingness by constitution drafters and lawmakers in Europe to mention and in some ways recognise religion in explicit detail. This contrasted with many 1920s constitutions, notably the Constitution of the Irish Free State of 1922, which, following the secularism of the initial period after World War I, simply prohibited any discrimination based on religion, or avoided religious issues entirely.

De Valera, his advisers (including John Charles McQuaid, the future Archbishop of Dublin), and the men who put words to de Valera's concepts for the constitution (John Hearne and Mícheál Ó Gríobhtha) faced conflicting demands in drafting of the article on religion.

• The demand from conservative Roman Catholics that Catholicism be established as the state religion of Ireland;
• Protestants' fears of discrimination.
• Prevailing opposition to Judaism.
• The fact that most people in Ireland belonged to some religion, and that the education system and to a lesser extent the health system were denominational in structure, with Roman Catholicism, the Church of Ireland, the Presbyterian Church, the Methodist Church, the Jewish community, and others running their own schools and non-governmental agencies.

De Valera's solution was Article 44. In contemporary terms, it marked a defeat for conservative Catholics, and Pope Pius XI explicitly withheld his approval from it:

• Catholicism was not made the state church.
• Catholicism was given an undefined "special position" on the basis of being the church of the majority. This was not consistent with the stance of pre-Vatican II Catholicism, which claimed the right to legal and political influence on the basis of the claimed objective truth of its teachings rather than the size of its following.
• Other religions were named and recognised on a lower level. The use of the Church of Ireland's official name antagonised conservative Catholics, who saw Catholicism as being the proper and rightful "church of Ireland".
• The Jewish community in Ireland was also given recognition. The explicit granting of a right to exist to the Jewish faith in Ireland marked a significant difference to the legal approach to Jewish rights in other European states, though contemporary Irish society was not free of antisemitism.

Though perceived in retrospect as a sectarian article, Article 44 was praised in 1937 by leaders of Irish Protestant churches (notably the Church of Ireland Archbishop of Dublin) and by Jewish groups. Conservative Catholics condemned it as "liberal".

When the contents of Article 44 were put to Pope Pius XI by Cardinal Eugenio Pacelli (then Cardinal Secretary of State, later Pope Pius XII), the pope stated in diplomatic language: "We do not approve, nor do we not disapprove – we will remain silent". It was said that the pope was privately more appreciative of the constitution, and Pius XII later praised it publicly.[1]

Viewpoint in the 1970s

By 1972, an article once condemned by critics as liberal and indeed by some as offensive to Catholicism, had come to be seen as out of place, dated, and potentially discriminatory to Protestants. The "special position" granted to the Catholic Church, albeit in an undefined manner, was a special status that was out of step with post-Vatican II Catholic thinking on the relationships between the churches. The Protestant churches, though they had declined in adherents, were more outspoken and willing to express their unhappiness than they had been in the Ireland of the 1920s and 1930s, when many were fearful that criticism of the Irish state would be seen as criticism of Irish independence and so implicitly a preference for the British regime that had ruled Ireland before 1922.

In addition, in the rapprochement between Northern Ireland and what was by then known as the Republic of Ireland, many southerners perceived the "special position" as a barrier to an improved north–south relationship, and even a potential source of discrimination against minorities. In addition, the explicit recognition of certain denominations was seen as unnecessary because of the provisions Article 44.2, which contains guarantees of freedom of worship and against religious discrimination.

Oireachtas debate

The Fifth Amendment of the Constitution Bill 1972 was proposed by Fianna Fáil Taoiseach Jack Lynch.[2] It was supported by the opposition parties Fine Gael and the Labour Party and passed final stages in the Dáil on 2 November 1972.[3] It passed all stages in the Seanad on 3 November and proceeded to a referendum on 7 December 1972.[4]

Campaign

The Catholic Church did not voice any objection to the amendment, but it was opposed by some conservative Catholics. Some leading members of the Church of Ireland and the Jewish Community said during the campaign that while they appreciated the Article's recognition of their existence (and in the case of the Jewish Community, their right to exist, in contrast to anti-Jewish laws in other states) in 1937, it was no longer needed in the 1970s and had lost its usefulness.

The referendum on the amendment occurred on the same day as the referendum on the Fourth Amendment which lowered the voting age to eighteen.

After its approval by referendum, the amendment was made to the Constitution after it was signed into law by the President of Ireland, who was then Éamon de Valera, the man who had drafted the original article.

Result

Fifth Amendment of the Constitution of Ireland referendum[5]

Choice	Votes	%
Yes	721,003	84.38
No	133,430	15.62
Valid votes	854,433	94.54
Invalid or blank votes	49,326	5.46
Total votes	903,759	100.00
Registered voters and turnout	1,783,604	50.67

Results by constituency[5]

Constituency	Electorate	Turnout (%)	Votes		Proportion of votes
			Yes	No	Yes	No
Carlow–Kilkenny	59,415	55.2%	26,589	4,040	86.8%	13.2%
Cavan	37,229	54.0%	16,775	1,838	90.1%	9.9%
Clare	39,413	47.6%	15,099	2,389	86.3%	13.7%
Clare–Galway South	34,820	52.6%	15,298	1,813	89.4%	10.6%
Cork City North-West	36,115	48.2%	11,821	4,805	71.1%	28.9%
Cork City South-East	36,476	53.9%	13,701	5,212	72.4%	27.6%
Cork Mid	49,402	53.8%	20,430	4,571	81.7%	18.3%
Cork North-East	50,016	54.8%	20,986	4,640	81.9%	18.1%
Cork South-West	38,285	53.1%	14,620	4,545	76.3%	23.7%
Donegal North-East	37,924	43.4%	13,260	1,736	88.4%	11.6%
Donegal–Leitrim	38,540	46.2%	14,705	1,937	88.0%	12.0%
Dublin Central	46,775	43.7%	15,718	3,648	81.2%	18.8%
Dublin County North	58,761	48.6%	23,804	3,897	85.9%	14.1%
Dublin County South	45,289	55.5%	20,966	3,572	85.4%	14.6%
Dublin North-Central	49,073	49.4%	18,933	4,505	80.8%	19.2%
Dublin North-East	55,483	52.9%	24,128	4,450	84.4%	15.6%
Dublin North-West	44,369	46.6%	16,386	3,488	82.4%	17.6%
Dublin South-Central	50,400	48.7%	19,582	4,134	82.6%	17.4%
Dublin South-East	37,840	50.8%	15,267	3,138	82.9%	17.1%
Dublin South-West	41,740	45.0%	14,956	2,901	83.8%	16.2%
Dún Laoghaire and Rathdown	56,151	57.7%	27,136	4,443	85.9%	14.1%
Galway North-East	34,358	47.1%	13,721	1,385	90.8%	9.2%
Galway West	35,999	42.7%	12,903	1,813	87.7%	12.3%
Kerry North	37,018	43.0%	12,886	1,946	86.9%	13.1%
Kerry South	36,391	43.2%	12,642	1,940	86.7%	13.3%
Kildare	40,065	50.6%	16,942	2,369	87.7%	12.3%
Laois–Offaly	56,344	55.1%	25,171	4,452	85.0%	15.0%
Limerick East	47,001	54.5%	18,109	6,133	74.7%	25.3%
Limerick West	35,904	56.5%	16,327	2,772	85.5%	14.5%
Longford–Westmeath	47,095	49.4%	18,592	3,141	85.5%	14.5%
Louth	40,278	50.4%	16,449	2,811	85.4%	14.6%
Mayo East	34,810	46.2%	13,729	1,376	90.9%	9.1%
Mayo West	34,106	44.3%	12,593	1,419	89.9%	10.1%
Meath	39,040	50.2%	15,689	2,577	85.9%	14.1%
Monaghan	36,214	47.3%	13,987	1,901	88.0%	12.0%
Roscommon–Leitrim	37,682	51.3%	15,421	2,416	86.5%	13.5%
Sligo–Leitrim	38,049	48.8%	14,578	2,496	85.4%	14.6%
Tipperary North	34,754	58.0%	15,578	3,014	83.8%	16.2%
Tipperary South	46,127	58.6%	20,801	4,353	82.7%	17.3%
Waterford	39,513	53.6%	17,174	2,902	85.5%	14.5%
Wexford	49,881	52.3%	21,032	3,544	85.6%	14.4%
Wicklow	39,389	52.0%	16,519	2,968	84.8%	15.2%
Total	1,783,604	50.7%	721,003	133,430	84.4%	15.6%

See also

• Politics of the Republic of Ireland
• History of the Republic of Ireland
• Constitutional amendment
• December 1972 Irish constitutional referendum
• Religion in the Republic of Ireland

References

1. Jeffers, James. "Dead or Alive?: The Fate of Natural Law in Irish Constitutional Jurisprudence" (PDF). Galway Law Review. Archived from the original (PDF) on 9 June 2011. Retrieved 3 May 2012.
2. "Fifth Amendment of the Constitution Bill, 1972: First Stage". Houses of the Oireachtas. 26 October 1972. Retrieved 28 April 2018.
3. "Fifth Amendment of the Constitution Bill, 1972: Committee and Final Stages". Houses of the Oireachtas. 2 November 1972. Retrieved 28 April 2018.
4. "Fifth Amendment of the Constitution Bill, 1972: Committee and Final Stages". Houses of the Oireachtas. 3 November 1972. Retrieved 28 April 2018.
5. "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 31. Retrieved 28 April 2018.

Further reading

• Micheál Ó Cearúil, Bunreacht na hÉireann: A Study of Its Irish Text
• Tim Pat Coogan, Éamon de Valera
• David Gywnn Morgan, Constitutional Law of Ireland

External links

• Fifth Amendment of the Constitution Act 1972
• Full text of the Constitution of Ireland