Bishop Smith's recent expression of concern about the children of non-religious families attending Roman Catholic national schools has brought a difficult issue, largely ignored by Church and State, into the public forum.
In a State with an almost totally confessional education system, how are we to cater for the children of families who are no longer believing Christians? For Ireland is now clearly in the throes of a transition from a Christian society to one that may eventually comprise mostly non-Christians.
This process is difficult to trace and evaluate: attendance at religious services on Sundays has been used to measure the extent to which people have abandoned religion, but matters have never been so simple.
Protestants in Ireland have traditionally had a very high attendance rate at Sunday services, but for two centuries attendance has not been compulsory, and Protestants who do not attend cannot be seen to have abandoned Christianity. Some Roman Catholics have taken a more relaxed view of Sunday Mass attendance in recent times, although very many of those concerned remain believers. Thus it is impossible to assess how much declining Sunday Mass attendance reflects abandonment of religion.
In 1991 there was no rural district without some people of no religion. Now a significant minority are no longer believers, and do not want their children to be brought up in any religion. This can pose a problem for non-religious parents, and for the schools their children attend. Some parents from Roman Catholic backgrounds have sought to solve this problem by sending their children to Protestant primary schools, a practice about which Protestant school managers are understandably unhappy.
Gaelscoileanna and multidenominational schools are intended, respectively, for families who wish their children to be fluent in Irish, or brought up in a Christian, but not denominational, atmosphere. Some of these schools may be unhappy at being expected to cater for children of non-religious parents.
What does not exist in the State is a nondenominational school, nor has such a school yet been sought.
The Constitution's Articles 42 and 44 deal with primary education and freedom of conscience and religion. From recent case law tentative conclusions may be drawn as to how the courts might view the rights of non-religious parents, and the rights of existing confessional schools, faced with a growing number of non-religious children.
While the long-established concept that religion should inform all aspects of the school is being dropped from the new curriculum in preparation, this principle has been reintroduced in another form. This is because a few years ago the deeds of trust under which primary schools operate were modified by a deed of variation, to facilitate the replacement of the managerial system by a board of management with teacher, parent and community representation put on an equal basis with nominees of the clerical patron.
The churches agreed to this on the basis that the minister for education would adopt and maintain the ethos of the Roman Catholic Church or Church of Ireland in each school's management, and in the moral, intellectual and social education given in it.
Children of all or no religion may attend these confessional schools. A decision to exclude them would be seen as offending against our equality legislation, although if the numbers of children not of the same religion as that of the school go beyond a certain level (specified as over half in the case of the Church of Ireland schools), the ethos of the school could be deemed to have been put at risk.
And a board of management which, after a dialogue with the patron, was deemed by him to have endangered the ethos of the school may then be dismissed by that patron.
Now the legal situation. In the Supreme Court in March 1998 Mr Justice Barrington held that where a child attends a school run by a denomination different from his own, that child may have a constitutional right not to attend religious instruction at that school, but the Constitution cannot protect him from being influenced by the religious "ethos" of the school. A religious denomination is not obliged to change the general atmosphere of its school merely to accommodate a child of a different religion who wishes to attend that school.
Last year Ms Justice Laffoy dismissed the idea that the State could fulfil its constitutional duty to "provide for primary education" by funding a single system, as that "would render worthless the guarantee of freedom of parental choice . . . The State must give regard to and accommodate the expression of parental conscientious choice and lawful preference . . . Nevertheless it is proper for the State, and, indeed, I would say incumbent on the State, to incorporate in the scheme measures to ensure that need and viability are properly assessed."
In other words, an isolated non-religious family cannot insist on having a non-religious school set up. The State is entitled to have regard to the scale of demand for such a school.
This uneasy and delicate balance of rights depends on everyone acting reasonably. Thus, confessional boards of management and patrons would be unwise to try to prevent children of no religion - or of another religion - from attending their schools unless their numbers can reasonably be held to threaten the school's ethos. Such a course of action could bring them into conflict with our equality legislation. And boards of management must allow such children to opt out of religious instruction.
Until the number of non-religious children in an area reaches a level that justifies a non-religious primary school, such children will have to attend a confessional school, and opt out of religious instruction.
In the long run, however, unless the churches modify their insistence on confessional schools - and there is no sign of that happening - this situation looks like involving us in a very expensive combination of a declining school population as our fertility rate falls towards the level of neighbouring countries, and a simultaneous multiplication of the number of primary schools.
The consequences of this would be an educationally damaging diminution in the average size of these schools, back towards the most unsatisfactory situation that existed up to the 1970s. Not a very encouraging long-term prospect.
gfitzgerald@irish-times.ie