I’m sure the title of this post will strike many of you as a bit controversial, as I do tend to try to keep my views on religion out of my academic arguments, unless of course they are particularly relevant or particularly amusing given the topic at hand. And this topic is one I find myself explaining to non-Irish jurists time and time again, with mixed feelings of frustration, shame and bemusement. The following are a few of the more surprising facts about Irish law, both historical and current, which seem to shock, anger or amuse my colleagues who didn’t grow up in such starkly conservative or Catholic nations, and even some of those who did. While it is true that many of these laws cannot be blamed on religion alone, one cannot deny the huge, at times mind-boggling and perplexing, impact which cultural, moral and religious conservatism, and the Catholic Church in particular, have had on the law in Ireland. Some of these peculiarities are uniquely religious, even Catholic, others are simply symptomatic of cultural and moral conservatism in Ireland and Europe over the last Century. For ease of both writing and reading, I have decided to break this post up into a series of shorter pieces on specific issues. We’ll start today with an introduction and the wonderful story of illegal condoms:
To begin, I should most probably provide you, dear reader, with a brief overview of the pervasiveness of religious and moral conservatism in both Irish society and law. Ireland was a strange post-revolutionary country, in that our independence movement has often been described as a revolution towards conservatism, for, although revolutionary-types are most often presumed to be godless, socialist hippies, the newly established Irish Free State began in 1921 the process of building a country which was profoundly more conservative societally, constitutionally and legally than the state it just broke away from. It has been my general impression, that the British are simply better, more efficient or at least more enthusiastic about reforming and replacing old laws than their former fellow United-Kingdomers. I should point out at this stage, for those of you who don’t know, that we (by which I mean “the Irish”), came up with a handy little (though by no means unique) shortcut when establishing our own legal system; we simply deemed that all legislation and case law precedents remained a part of the new Irish Law unless they were incompatible with the new constitution (either the 1922 Constitution of the Irish Free State, or later the modern 1937 Constitution of Ireland), or unless they were superseded by new Irish laws or court decisions. In fact, throughout my time at university I have often come across instances where I was utterly amused and/or horrified to find the Irish continuing to use some out-dated law on family, sexual or bioethical matters, from back in the dark old days of the 19th Century, which the British had already replaced with shinier new laws, often twice, thrice or even one of those words which comes after twice and thrice.
One of the many ways in which this trend towards the out-dated or ridiculously conservative manifested itself was in the overt religious influences on Irish law, particularly constitutional law. The current Irish constitution, Bunreacht na hÉireann, was drafted by quasi-Irish-president-for-life, and Alan Rickman lookalike, Éamonn De Valera, alongside John Hearne, legal adviser to the Department of External Affairs (now called the Department of Foreign Affairs), and, of course, with significant input from the controversial (or just plain evil depending on who you ask) John Charles McQuaid, the Archbishop of Dublin (and practically the theocratic Big Brother of Ireland for many years), on religious, educational, family and social welfare issues. Though paying lip-service to the separation of Church and State, with no official established religion, the Constitution does begin with;
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, […] Do hereby adopt, enact, and give to ourselves this Constitution.
… which isn’t exactly the most secular of beginnings to a foundational legal document. Though to be fair, the citizen’s freedom of religious conscience, practice, and worship is guaranteed, “subject to public order and morality”, by Article 44.2.1°. The state may not endow any religion (Article 44.2.2°), nor discriminate on religious grounds (Article 44.2.3°). Nonetheless, the link between Church and State used to be even more pronounced in the original version of Article 44.1 which explicitly recognised a number of Christian denominations, such as the Church of Ireland (our equivalent of the Protestant Church of England), the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland (the wonderful real name for the “Quakers”), as well as “the Jewish Congregations”; most controversially and amusingly ominous-sounding was the recognition in the original Article 44.1.2° of the “special position” of the Roman Catholic Church. (On a side-note, “Guardians of the Faith”, apart from being the name of an existing MMORPG guild, would make a great name for a Christian Heavy Metal band… Also, that is an actual, honest-to-(not-)God, existing music genre)
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.
These provisions were, thanks be to (not-)God, removed by the Fifth Amendment in 1973. Nevertheless the constitution still contains a number of explicit religious references, such as in the preamble, the declaration made by the President, and the remaining text of Article 44.1, which reads:
The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
There is also that worrying addition to most rights protected under the constitution that they be “subject to public order and morality”, the “morality” side of which is a bit vague and suspect at best. And keep in mind that the history of religion and the Constitution of Ireland is a step back for secularism from the Constitution of the Irish Free State from 1922, which simply prohibited any discrimination based on religion and otherwise avoided religious issues entirely. That being said, many of the aspects of the Constitution of Ireland and laws made at that time reflected commonly held views, and were par for the course in 1930s Europe. What is amusing, frustrating and at times infuriating is that these sorts of laws were in place up until so recently in many cases, and remain problematic in some cases even today. With the characteristically long-winded introduction out of the way, let us now move on to some of my favourite examples:
Condoms; And The Evils of Safe Sex
Although people tend to know something about the position of abortion under Irish Law, and have also often heard a thing or two about our rocky past with divorce, this is the one that always shocks and amuses in equal measure – condoms were essentially illegal in Ireland until the 1980s. But wait, it gets better! For the first few years of the relaxation of this prohibition you could only buy condoms with a prescription from a doctor. You honestly cannot make this stuff up. For a more thorough examination of this phenomenon, we have to go back to the papal encyclical Casti Connubii issued by Pope Pius XI on 31 December 1930, which reacted to the the industrial production and widespread use of condoms by specifying that;
… any use whatsoever of matrimony exercised in such a way that the act is deliberately frustrated in its natural power to generate life is an offence against the law of God and of nature, and those who indulge in such are branded with the guilt of a grave sin.
The encyclical itself is well worth a read on the Vatican’s (hopelessly Web 1.0-looking) website, and includes thoughtful reflection on how great the dignity of chaste wedlock is, that divorce is bad, and that enjoying sex is maybe kinda OK, so long as the enjoyment is “…subordinated to the primary end and so long as the intrinsic nature of the act is preserved“. This moral and legal position was perhaps summed up best by Messrs. Palin and Jones in their seminal (pun intended) work “Every Sperm Is Sacred“.
The advent of the pill in 1960 further put the cat amongst the pigeons, as dissenters in the Church argued for a reconsideration of the Church positions, ultimately leading to the Pontifical Commission on Birth Control established in 1963 by Pope John XXIII to study questions of birth control and population. This Commission eventually swelled to 72 members, from five continents, including; 16 theologians, 13 physicians and five women without medical credentials, with an executive committee of 16 bishops, including seven cardinals. Confusingly, the majority report seemed to suggest that use of contraceptives should be regarded as an extension of the already accepted natural rhythm method of contraception, and therefore acceptable. Even better was the minority report prepared by 4 dissenting theologians which, amongst other complaints, stated essentially that backing down on questions of contraception was out of the question, as it would let those pesky Protestants win;
If it should be declared that contraception is not evil in itself, then we should have to concede frankly that the Holy Spirit had been on the side of the Protestant churches in 1930 and in 1951.
However Paul VI seemed to explicitly reject the commission’s recommendations in the text of the papal encyclical Humanae Vitae, which was promulgated in 1968 and re-affirmed the rejection of most forms of contraception.
Such views were of course strictly upheld by obedient Catholic Ireland, specifically with the introduction of Section 17 (Prohibition of sale and importation of contraceptives) of the Criminal Law Amendment Act, 1935, which stated that “…[i]t shall not be lawful for any person to sell, or expose, offer, advertise, or keep for sale or to import or attempt to import into Saorstát Eireann for sale, any contraceptive.” This meant that while the possession or use of contraceptives (at the time primarily condoms) was not itself illegal, it wound up being rather difficult to get access to them in Ireland. Nonetheless, love(read:lust) will find a way, and some enterprising individuals were known to use loopholes such as where a device such as a condom would not be “offered for sale”, but a buyer could be “invited to treat” to buy it; other times people made donations to family planning associations to obtain contraception as a “gift”. Condom-smuggling across the border from Northern Ireland, whilst not as well-known or prolific as petrol and cigarette smuggling, was also relatively wide-spread. Other groups, in particular student societies in the 1970s, would (illegally) bring huge quantities of condoms across the border, but then give them away for free in the Republic, as only the sale, not mere distribution, was unlawful. One famous such example was on 22 May 1971, when a group of Irish feminists travelled to Belfast by rail and returned to Dublin laden with contraceptive devices, embarrassing the customs officers to letting them through as a statement on the illogicality of the law. This provoked a wonderful criticism from Thomas Ryan, Bishop of Clonfert, who said that;
… never before, and certainly not since penal times was the Catholic heritage of Ireland subjected to so many insidious onslaughts on the pretext of conscience, civil rights and women’s liberation.
There were also more traditional attempts to reform this law, such as in early 1971 when Senator Mary Robinson (who later became president) attempted to introduce the first bill proposing to liberalise the law on contraception into the Seanad, but wasn’t even allowed a reading, so thus it could not be discussed. In 1973 the case McGee v Attorney General found that that law criminalising importation of contraceptives had interfered with plaintiff’s (Mary McGee, a married mother of four) constitutional rights to marital privacy, but nevertheless this only lead to years of legislative indecision in which a number of Bills were put forth unsuccessfully. One such, put forth in 1974 by Minister for Justice Patrick Cooney was defeated on a free vote in which Taoiseach Liam Cosgrave was among those opposing it. Finally in 1978 the Health (Family Planning) Bill was introduced with more success by the now infamous Charlie Haughey. This bill, as mentioned above, limited the provision of contraceptives “for the purpose, bona fide, of family planning or for adequate medical reasons“. That’s right. You needed an honest-to-goodness medical reason and permission from your doctor to wrap your penis in latex, and these strictly regulated devices of sin could solely be dispensed by pharmacists… Strange days indeed.
This “Irish solution to an Irish problem”, understandably, didn’t last very long. There were problems on the one hand with those who still refused to take the restrictions on access to contraceptives seriously, and on the other hand the wide-spread belief, and often unofficial practice, that contraceptives could only be prescribed to married couples (though this was stated nowhere in the legislation), backed up by strict Catholic understanding of the “family planning” justification. Obviously one can not plan a family if one is not married; thus no spouse = no condoms for you I’m afraid. And, as with many such such areas of moral and legislative disquiet physicians and pharmacists who had moral objections were not actually obliged to write or fill such prescriptions. The Act came into force in November 1980, but already by 1985 the restrictions were relaxed by the Health (Family Planning) (Amendment) Act, 1985, which allowed the “sale of contraceptive sheaths or spermicides to a person over the age of 18 years“, provided they were dispensed by a pharmacist, doctor, health board worker or other member of a relatively restricted categories. Then 1992 the Health (Family Planning) (Amendment) Act repealed Section 4 of the 1979 act, as amended in 1985, and lowered the age for provision of contraceptives without prescription to individuals over the age of 17, or (interestingly) married or is named in a prescription or authorisation in writing for the contraceptives of a registered medical practitioner. Finally all those horny 17 year olds and married 16 year olds who were worried about responsible family planning had access to legal contraceptives!
There were minor changes made by the Health (Family Planning) (Amendment) Act 1993, which primarily set standards for condoms and allowed the Minister prohibit condom vending machines in certain places, as well as repealing old sections of the 1979 Act on controlling the importation and manufacture of contraceptives. And that, pretty much, is how things stand today, condoms are no more or less available than in most liberal western democracies, but we certainly went a roundabout way of getting to this point. In my experience, although not as wonderfully generous as the NHS Lothian’s C:Card program, Ireland is a relatively easy place to source cheap or even free contraceptives these days – condom dispensing remaining one of the best known (possibly only known for the majority of students) duties of TCD’s Welfare officer.
Nevertheless, no discussion of this issue would be complete without the mention of the similarly amusing legislative changes which were necessary for the de-censorship and advertisement of those sinful sheaths of sexiness. For example, Section 12, “Amendment of Censorship of Publications Act, 1929, and Act of 1946”, of the 1979 Act had to repeal parts of those two censorship acts which censored references to “the unnatural prevention of conception”. This was no trivial affair, as in November 1976, the Censorship of Publications Board had banned the Irish Family Planning Association’s (IFPA) booklet entitled “Family Planning – A Guide for Parents and Prospective Parents” (which had been originally published in 1971 and was “well into its second printing”), as the Board decided that such smut obviously fell under the category of “indecent or obscene” – bizarrely opting for that justification rather than because it “advocated the unnatural use of contraception”. In the end Victor Bewley, Maurice E. Dockrell TD and Senator Evelyn Owens organised and headed an appeal fund to go to court where the ban was eventually rescinded.
Since then it’s been pretty much smooth sailing for condoms at the very least, with gradual liberalisation of access to contraceptives of all sorts and issues of consent with minors regarding contraception and related health issues. The question of abortion is a much trickier one, and one for another day if I ever get around to it. It’s still unlikely that you’ll see some of the raunchier examples of condom adds being shown on RTE, but at least tourists don’t have to worry any more about whether they’ll be able to buy condoms in Ireland, or risk getting arrested for smuggling them in. I have a number of other issues and ideas I want to write about in this series, but pushing 3,000 words, I decided I’ll post what I have done now, and continue on in a later post about the finer points of The Mother and Child Scheme scandal or the decriminalisation of homosexuality.
Thanks for reading, and remember to enjoy your guilt-free, (hopefully-)non-smuggling-related safe sex,
 Mary Kenny, “The day we drove the condom train straight through de Valera’s Ireland”, 24 Nov 2014, Independent.ie, http://www.independent.ie/unsorted/features/the-day-we-drove-the-condom-train-straight-through-de-valeras-ireland-26248644.html
 Donal Fallon, “The invasion of Leinster House (via the male jacks)”, 1 Feb 2013, Come Here To Me!, http://comeheretome.com/2013/02/01/the-invasion-of-leinster-housevia-the-male-jacks/
 “Control of Importation, Sale and Manufacture of Contraceptives Bill, 1974: Second Stage (Resumed)“, Dáil Éireann – Volume 274, 16 July 1974.
 “Health (Family Planning) Bill, 1978: Second Stage“, Dáil Éireann – Volume 312, 28 February 1979.
 Michael Solomons, “Pro Life? The Irish Question”, http://www.ifpa.ie/sites/default/files/documents/media/publications/pro-life_irishquestion.pdf
 This hilarious About.com question; “Can I Get Contraceptives in Ireland?” http://goireland.about.com/od/preparingyourtrip/qt/contraception.htm
IFPA, “Ireland’s Sexual and Reproductive Health History”, http://www.ifpa.ie/Media-Info/History-of-Sexual-Health-in-Ireland
Gerald Slevin, “New birth control commission papers reveal Vatican’s hand”, 23 Mar 2011, National Catholic Reporter, http://ncronline.org/news/vatican/new-birth-control-commission-papers-reveal-vaticans-hand
McGee v. A.G. & Anor  IESC 2  1 IR 284
Wikipedia: “Contraception in the Republic of Ireland”