1. Directive 2000/43/EC. See M Hennessy ‘Religious Ethos Stand Raises EU Hackles’ The Irish Examiner 19 October 2000. The then Minister for Justice, Equality and Law Reform, Mr O'Donoghue, was questioned in the Dáil (Irish lower house of parliament) about his reasons for seeking the exemption. See Dáil Debates vol 526 cols [166]–[168], 15 November 2000.

2. Clergy and ministers of religion are traditionally viewed as appointees who have entered into their vocation accepting the conditions attaching to it – for example, the requirement of celibacy for Catholic priests. Freedom of religion also has an important impact in permitting practices which would be unlawful discrimination in a secular context, such as the disbarment of women from priesthood in certain faiths. One case which suggests that judicial attitudes to the status of ministers of religion may be changing is New Testament Church of God v Sylvester Stewart [2007] EWCA Civ 1004, in which the Court of Appeal upheld a finding of the Employment Appeal Tribunal (EAT) that a Christian minister was an employee of his church. Whatever one's view on the legal status of religious ministers, however, it is clear that different issues arise to those applicable to lay employees doing their jobs against a religious backdrop.

3. The Catholic Church in Ireland has relinquished day-to-day control of its hospitals before its schools, although it still invokes its rights, for example in relation to the medical procedures permitted in the hospitals in which it is involved. See ‘Medical ethics of old’ The Irish Times 6 October 2005.

4. Fassinger, R And Gladly Teach: Lesbian and Gay Issues in Education’ in Diamont, L (ed) Homosexual Issues in the Workplace (London: Taylor and Francis, 1993) p 119.Google Scholar

5. Ibid.

6. For the position regarding enrolment policies in the Republic of Ireland, see Mawhinney, A Freedom of religion in the Irish primary school system: a failure to protect human rights?’ (2007) 27 LS 37 Google Scholar. For a general discussion of religious discrimination in the UK see

7. See Titley, B Church, State and the Control of Schooling in Ireland 1900–1944 (Dublin: Gill and MacMillan, 1983).Google Scholar

8. These concerns were just as prevalent in the Catholic Church's attitude to British proposals for non-denominational universities in Ireland. See Paseta, S The Catholic Hierarchy and the Irish University Question, 1880–1908’ (2000) 85(278) History 26 CrossRefGoogle Scholar; . See also

9. The experimental system of national schools had no statutory basis, but was derived from the Stanley Letter of 1831. See the Report of the Constitution Review Group (Dublin: The Stationery Office, 1996) p 33 Google Scholar. See also,

10. See Dáil Debates vol 94 col [394], 13 June 1944.

11. See Keogh, D Church, State and Society’ in Farrell, B (ed) De Valera's Constitution and Ours (Dublin: Gill and MacMillan, 1988) p 10 Google Scholar. See also , especially pp 166–171.

12. This is implicit in the wording of Art 44.2.4°, which provides that legislation providing state aid for schools shall not discriminate between schools under the management of different religious denominations.

13. Hogan, G Law and Religion: Church-State Relations in Ireland from Independence to the Present Day’ (1987) 35 American Journal of Comparative Law 9.CrossRefGoogle Scholar

14. See Coolahan, J Irish Education: History and Structure (Dublin: Institute of Public Administration, 1981) p 13 Google Scholar and pp 195–196.

15. Inglis notes that between 1982 and 1997, the number of Catholic primary and secondary schools in the Republic of Ireland fell by 296. The decrease brought the number of such schools from 4754 to 4458 (a decrease of 6%). See Inglis, T Moral Monopoly: The Rise and Fall of the Catholic Church in Modern Ireland (Dublin: University College Dublin Press, 2nd edn, 1998) pp 40–4 Google Scholar. The decrease in Catholic schools in England is more marked, with two-thirds of Catholic independent schools having closed or ceased to be Catholic since 1960. See V Combe ‘Last Orders’The Tablet 9 February 2008.

16. The enactment of the legislation was prolonged because of intense debate, particularly about the exemption for religious institutions. In 1996, when it had passed all stages as a bill, it was referred to the Supreme Court by the President under the procedure in Art 26 of the Irish Constitution. The Court found that certain provisions – but not those relating to ethos – were unconstitutional. After further debate and amendment the Act was finally signed into law on 18 October 1999.

17. Inglis, above n 15, p 98.

18. Duminuco, V Towards the Millenium – Catholic Education: Identity, Context, Pedagogy’ in Conroy, J (ed) Catholic Education: Inside Out/Outside In (Dublin: Lindisfarne Books, 1999) p 13.Google Scholar

19. Quoted in Titley, above n 7, p 59. For an overview of Professor Corcoran, see Titley, B Rejecting the Modern World: the Educational Ideas of Timothy Corcoran’ (1983) Oxford Review of Education 13.Google Scholar

20. In December 2007, four Irish Protestant schools initiated High Court proceedings seeking a declaration that their constitutional rights had been breached by a Department of Education redeployment scheme which would require them to accept teachers of other denominations from schools which had closed down. The schools expressed concern that this would result in teachers being forced upon them, without any assurance that these teachers would subscribe to the ethos of the schools concerned. See ‘Protestant schools say scheme affects their autonomy’ The Irish Times 11 December 2007.

21. Epstein and Johnson note that ‘Sexuality…is both inescapable and very dangerous territory for teachers. The tightrope which they have to walk between their public roles and private lives is one with an inbuilt insecurity’. Epstein, D and Johnson, R Schooling Sexualities (Buckingham: Open University Press, 1998) p 12 Google Scholar. See also ; K Myers ‘The Age of Innocence? Pupils and Teachers’ in Myers (ed), ibid, p 48.

22. Seanad Debates vol 157 col [246], 18 November 1998. ‘Seanad’ is the Irish word for Senate.

23. Regulation 7(3)(a), Employment Equality (Sexual Orientation) Regulatons 2003. The word ‘ethos’ is expressly used in reg 7(3) of the Employment Equality (Religion or Belief) Regulations 2003.

24. The distinctive legal meaning of the phrase ‘for purposes of an organised religion’ will be discussed later in the paper.

25. See, for example, J Freiburg ‘Three Creative Ways to Measure School Climate and Next Steps’ in Freiburg, J (ed) School Climate: Measuring, Improving and Sustaining Healthy Learning Environments (London: Routledge Falmer, 1999) p 20.Google Scholar

26. Wright, C, Weekes, D and McGlaughlin, A Race, Class and Gender in Exclusion From School (London: Routledge Falmer, 1999) p 1.Google Scholar

27. The term was coined by the sociologist Phillip Jackson. See Jackson, P Life in Classrooms (Chicago: Holt, Rinehart and Winston, 1968).Google Scholar

28. Morley, L and Rassool, N School Effectiveness: Fracturing the Discourse (London: Routledge Falmer, 1999) p 7.Google Scholar

29. J Brick ‘The Catholic School is as Good as its Ethos’ in Conroy, above n 18, p 99.

30. Corcoran, T The New Secondary Programme in Ireland: the Teaching of History’ (1923) Studies 25 Google Scholar. Quoted in Titley, above n 7, p 98.

31. Council for Catholic Maintained Schools Making a Bill of Rights for Northern Ireland: Response to the Consultation Document, available at http://billofrights.nihrc.org/submissions/submission_185.pdf (last visited 16 April 2008).

32. Catholic Bishops of Northern Ireland A Response to the NIHRC Consultative Document, ‘Malting a Bill of Rights for Northern Ireland’, available at http://billofrights.nihrc.org/submissions/submission_221.pdf (last visited 16 April 2008). The similarity in the wording of certain sections of the two documents is uncanny.

33. Mawhinney, above n 6, at 391.

34. Mitchell, C Religion, Identity and Politics in Northern Ireland: Boundaries of Belonging and Belief (Aldershot: Ashgate, 2005) p 6.Google Scholar

35. Sacred Congregation for Catholic Education The Catholic School (New York: St Paul, 1977)Google ScholarPubMedat para 58. Quoted in Brick, above n 29, p 103.

36. A Price ‘Turbulent Times – A Challenge to Catholic Education in Britain Today’ in Conroy, above n 18, p 126.

37. No 21 of 1998.

38. Emphasis added.

39. See the comments in the Dáil of Dr Michael Woods, then a member of the Opposition, on the matter. See Dáil Debates vol 470 cols [732]–[734], 22 October 1996.

40. Flynn v Power [1985] IR 648. See, for example, Seanad Debates vol 154 col [377], 18 February 1998; Dáil Debates vol 474 col [715], 5 February 1997.

41. For example, Senator Brendan Ryan has pointed to the irony that Ms Flynn was employed in Enniscorthy, Wexford, in a diocese in which savage incidents of clerical sexual abuse took place. The scale of this abuse only became apparent with the publication of the Ferns Report in 2005. See The Ferns Report (Dublin: Government Publications, 2005)Google ScholarPubMed(see n 101 below). See also Seanad Debates vol 181, col [1069], 2 November 2005.

42. Re Article 26 and the Employment Equality Bill [1997] 2 IR 321.

43. Ibid, at 359.

44. Article 26 of the Irish Constitution provides for a procedure whereby the President, following consultation with the Council of State, may refer a Bill – or any provision thereof – to the Supreme Court to test its constitutionality. If any provision referred is deemed to be unconstitutional, the President, in the words of Art 26.3.1° ‘shall decline to sign such Bill’.

45. Art 32.3.3°.

46. An example is Campaign to Separate Church and State v Minister for Education[1998] 3 IR 321, which concerned the public funding of school chaplains in community schools. As noted by Hogan and Whyte, the Supreme Court seemed to qualify the robust statement in Art 44.2.2° that the State shall not endow any religion by reference to the weaker statement in Art 42.4 that the State ‘shall endeavour to supplement and give reasonable aid to private and corporate educational initiative’. See Hogan, G and Whyte, G JM Kelly: The Irish Constitution (Dublin: LexisNexis Butterworths, 4th edn, 2003) p 205.Google Scholar

47. Emphasis added.

48. See Waaldijk, K and Bonini-Baraldi, M Sexual Orientation Discrimination in the European Union: National Laws and the Employment Equality Directive (The Hague: TMC Asser Press, 2006) p 12.CrossRefGoogle Scholar

49. Of the 3279 primary schools in the State, 3039 are under Catholic patronage; 183 are under the Church of Ireland; 34 multi-denominational; five interdenominational and 19 are under the patronage of other religions. See G Faller ‘Is your child Catholic enough to get a place at school?’ The Irish Times 1 May 2007.

50. Murphy v Stewart [1973] IR 117.

51. School Standards and Framework Act 1998, s 20.

52. SI 2003/1660.

53. SI 2003/1661.

54. Regulation 39(1) of the Employment Equality (Religion or Belief) Regulations 2003. Interestingly, no similar caveat is present in the Employment Equality (Sexual Orientation) Regulations 2003, which raises the question of whether those regulations in fact override the School Standards and Framework Act in the area of sexual orientation discrimination against teachers in maintained faith schools.

55. McNab v Glasgow City Council (Appeal No UKEATS/0037/06/MT, 17 January 2007).

56. See Bell, M A Patchwork of Protection: the New Anti-Discrimination Law Framework’ (2004) MLR 46 Google Scholar at 474.

57. Article 4(2) of Directive 2000/78/EC.

58. R (Amicus) v Secretary of State for Industry and Commerce [2004] IRLR 430.

59. Ibid, at [116].

60. SI 1998/3162 (NI 21). This order has been amended by the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003, SR 2003/520.

61. SR 2003/497.

62. SR 2003/520.

63. Cumper, P Religious Organisations and the Human Rights Act 1998’ in Edge, P and Harvey, G (eds) Law and Religion in Contemporary Society: Communities, Individualism and the State (Aldershot: Ashgate, 2000) p 6.Google Scholar

64. P Edge, ‘The Employment of Religious Adherents by Religious Organisations’ in Edge and Harvey, ibid, p 164.

65. Ibid, p 166.

66. Leigh, I Clashing Rights, Exemptions, and Opt-Outs: Religious Liberty and “Homophobia”’, in O'Dair, R and Lewis, A (eds) Law and Religion (Oxford: Oxford University Press, 2001) p 25.Google Scholar

67. D Harte ‘Defining the Legal Boundaries of Orthodoxy for Public and Private Religion in England’ in O'Dair and Lewis, ibid, p 477.

68. Paterson, H The Justifiability of Biblically Based Discrimination: Can Private Christian Schools Legally Refuse to Employ Gay Teachers?’ (2001) 59 University Toronto Faculty of Law Review 5 Google Scholar at 81.

69. See Wintemute, R, ‘Religion vs. Sexual Orientation – a Clash of Human Rights’ (2002) Journal of Law & Equality 12 Google Scholar. Wintemute points to the literature of mainstream churches which characterise LGBT people as deviant. In certain quarters being gay is equated with being a paedophile – an obviously explosive prejudice when LGBT people are working in healthcare and educational environments with minors. See, for example,

70. Wintemute, ibid, at 137.

71. Coen, M Living the Ethos?’ (2007) 101(6) Law Society Gazette (Ireland) 3.Google Scholar

72. An exception would be the commission of a relevant criminal offence by an employee.

73. X v Y [2004] ICR 1634.

74. Mummery, Dyson and Brooke LJJ.

75. See X v Y, above n 73, at [52] and [69].

76. Ibid, at [80]–[85].

77. Collins, H The Protection of Civil Liberties in the Workplace’ (2006) MLR 61 Google Scholar at 623.

78. Pay v Lancashire Probation Service [2004] IRLR 129.

79. D Quinn ‘Conformity’ The Irish Catholic 9 September 2007.

80. Re Christian Institute and Others [2008] IRLR 36.

81. R(Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246.

82. Ibid, at [23].

83. Lord Nicholls of Birkenhead, Baroness Hale of Richmond, Lord Walker of Gestingthorpe, Lord Brown of Eaton-Under-Heywood, Lord Bingham of Cornhill.

84. Ibid, at [22]–[23].

85. See, for example, Handyside v UK [1976] 1 EHRR 737 at [49].

86. Fredman, S Discrimination Law (Oxford: Oxford University Press, 2002) pp 17–1 Google Scholar. A note of caution is sounded by Feldman, who points to the complex nature and uncertain content of human dignity. ; . See also ;

87. G Moon and R Allen ‘Dignity Discourse in Discrimination Law: A Better Route to Equality?’ [2006] EHRLR 610 at 618.

88. Ibid, at 645.

89. See, for example, the Canadian case of Re Caldwell and Stuart (1985) 15 DLR (4th) 1 (dismissal of a teacher from a Catholic school because of her marriage to a divorced man in a civil ceremony upheld), the American case of Curay-Cramer v Ursuline Academy of Wilmington (2006) 3d Cir Del, unreported (dismissal of teacher in a Catholic school who had signed a newspaper advertisement advocating a pro-choice abortion stance upheld) and the English case of O'Neill v Governors of St Thomas More RCVA Upper School [1997] ICR 33 (dismissal of a religion teacher in a Catholic school when she became pregnant by a priest unfair because the pregnancy was held to be the reason for the dismissal).

90. Vickers, L Religion and Belief Discrimination in Employment – The EU Law (European Commission, 2006) p 5.Google Scholar

91. Dahlab v Switzerland (Decision of 15 February 2001, Application No 42393/98).

92. Smith and Grady v UK [1999] 29 EHRR 493.

93. Bell, M Employment Law Consequences of the Civil Partnership Act 2004’ (2006) 35 ILJ 17.CrossRefGoogle Scholar

94. J Petre ‘School cannot sack head in “gay marriage”’ The Daily Telegraph 14 August 2007.

95. Birden, S Rethinking Sexual Identity in Education (Lanham: Rowman and Littlefield, 2005) p 9.Google Scholar

96. See Williamson, I Sexuality’ in Hill, D and Cole, M (eds) Schooling and Equality: Fact, Concept and Policy (London: Kogan Page, 2001) p 20 Google Scholar; ;

97. Robinson, K and Ferfolja, T “What are we doing this for?”: Dealing with Lesbian and Gay Issues in Teacher Education’ in Rix, J, Simmons, K, Nind, M and Sheehy, K (eds) Policy and Power in Inclusive Education (London: Routledge Falmer, 2005) pp 202–20.Google Scholar

98. See Seanad Debates, vol 154 col [407], 18 February 1998.

99. Wintemute, above n 69, at 132.

100. Whyte, G Protecting Religious Ethos in Employment Law’ (2005) 27 Dublin University Law Journal 18.Google Scholar

101. See The Ferns Report, above n 41, particularly p 256, para [7(h)].

102. Williamson, above n 96, p 217. See also Evans, D Section 28: Law, Myth and Paradox’ (1989) Critical Social Policy 7 Google Scholar;

103. Ethical Standards in Public Life etc (Scotland) Act 2000, s 34.

104. Local Government Act 2003, s 122.

105. See, for example, C Odone ‘Clause 28: the cardinal should try to be more Christian’ New Statesman 31 January 2000; A Perkins ‘Row erupts over section 28’ The Guardian 9 October 2002.

106. Vickers, above n 90, pp 52–53.

107. Criminal Law (Sexual Offences) Act 1993, s 2.

108. Klug, F Values for a Godless Age: The Story of the United Kingdom's New Bill of Rights (London: Penguin, 2000).Google ScholarA sequel to the book is forthcoming. See