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
Date7 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%
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See also

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
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