The Gazette 1974

duties and rights of parents and the duty of the State in relation to the education of children. While Art. 42(3) provide., that parents shall not be obliged, in violation of their conscience, to send their children to a State school or to any particular type of school, it is quite unjustifiable to take the word "conscience" out of its context and seek to apply it to the wish of the parents as to whether they would have children or not. Article 44(2) Per Walsh J. Article 44(2) of the Constitution guar- antees freedom of conscience and the free profession and practice of religion, subject to public order and morality, to every citizen. The plaintiff claims that S.17 prevents her from leading her private life in accordance with dictates of her own conscience. The plaintiff states that so far as her conscience is concerned, the use of contraceptives by her is in accordance with her conscience, and that, in using them, she does not feel that she is acting against her conscience. What Article 44(2) (1) means is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned, and, subject to public order and morality, is free to profess and practice the religion of his choice in accordance with his conscience. Cor- relatively, he is free to have no religious beliefs, or to abstain from the practice and profession of any religion. It does not follow that because a person feels free, or even obliged in conscience to pursue some particular activity not in itself a religious practice, that such activity is guaranteed protection by Article 44. What the Article guarantees is the right not to be compelled or coerced into a way which is contrary to one's conscience, so far as the exercise, pracitce or pro- fession of religion is concerned. Religiously speaking, the society we live in is a pluralist one. As stated in the Quinn's Supermarket case (1972) I.R. 15, guarantees of religious freedom and freedom of conscience are not confined to the different denomination of the Christian Religion, but extended also to other religious denom- ination^. Per Fitzgerald C .J. ( dissenting ). In my opinion the freedom of conscience referred to in Article 44(2), re- lates exclusively to the choice and profession of a reli- gion. Hence the word "conscience" cannot be taken out of context, and applied to the decision of the plaintiff and her husband, or any other named, as to whether they should have children or not. Article 45 Per Fitzgerald C .J. ( dissenting ). Article 45 refers to principles of social policy intended for the general guid- ance of the Oireachtas in its making of laws, which are declared to be exclusively its province, and not cognizable by any Court. In my opinion, the interven- tion by this or any other Court with the functions of the Oireachtas under the Article is expressly prohibited. To hold otherwise would be an invalid usurpation of legislative authority* Per Walsh J. The plaintiff has claimed that Article 45(1) is applicable. This states that the State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which Justice and Charity shall inform all institutions of the national life. (This claim is subse- quently rejected.) 53

cannot intrude. However the fact that the use of con- traceptives may offend against the moral code of a majority of the citizens of the State would not per se justify an intervention by the State to prohibit their use w ithin marriage. The private morality of its citizens does not justify intervention by the State into the activi- ties of those citizens unless and until the common good requires it. 1 he rights of a married couple to decide how many children, if any, they will have, are matters outside Positive law. It is outside the authority of the State jo endeavour to intrude into the privacy of the hus- band and wife relationship for the sake of imposing a code of private morality upon that husband and wife which they do not desire. Article 41 guarantees the husband and wife against any such invasion of their Privacy by the State. It follows that the use of contra- ceptives by them within that marital privacy is equally guaranteed against such invasion, and, as such, assumes the status o fa right guaranteed by the Consti- tution. Section 17, insofar as it unreasonably restricts fhe availability of contraceptives for use within marriage I s inconsistent with Article 41 for being an unjustified mvasion of the privacy of husband and wife in their sexual relations with one another. This declaration ! ought should only go in respect of Subsection 3 of Section 17 which bans the importation of contracep- hves. That does not necessarily mean that the provisions to sale of contraceptives in Section 17(1) cannot be jmpugned. If the prohibition on sale had the effect of 'eaving a position where contraceptives were not reas °nably available for use within marriage, then that Prohibition must also fail. Per Fitzgerald C .J. ( dissenting ). It was submitted on behalf of the plaintiff that, in addition to the rights of herself and her husband, based on their married state that in some way the four infant children of the mar- n a g e were entitled to be considered by the law as being e ntitled to protection as having an interest in seeing that the family was not further enlarged. This conten- tion appears to me to be completely untenable. It a Ppears to me to be fundamental to the married state that the husband and wife and they alone shall decide whether they wish to have children, and the number of c hildren they wish to have. Article 42 Per Walsh J. The plaintiff has also invoked the pro- t o n s of Article 42(1) of the Constitution by relating her decision to practise contraception as being partly tbotivated by their desire to provide for the better e ducation of their existing children, and that S.17 at tempts to frustrate that decision. In a pluralist society such as ours, the Courts cannot, j* 8 a matter of Constitutional Law, be asked to choose between the defining views, where they exist, of experts °n the interpretation by different religious denomina- t e s of either the nature or extent of these Natural ijtights as they are to be found in the Natural Law. f he same considerations apply also to the question of ascertaining the nature and extent of the duties, which now from the Natural Law. Indeed the Constitution •tself speaks of these duties when referring to the in- a henable duty of parents to provide, acco-ding to their hteam, for the religious, moral, intellíh íal, physical a nd social education of their children. Per Fitzgerald C .J. ( dissenting ). I set * othing in S.17 which is in any way inconsistent with Article 42 of the Constitution. Th at Article is only concerned with the