By Cian Molloy - 01 September, 2020
The celebration of a Mass is not a service to its participants, and access to religious services or sacraments do not come within the ambit of the Equal Status Act, said WRC director-general Liam Kelly.
A complaint of anti-Traveller discrimination against the former Bishop of Galway, Martin Drennan, has been dismissed by the Workplace Relations Commission (WRC).
The complaint by ten members of the Sherlock family, six of them minors, relates to an incident that occurred at a First Communion ceremony in Galway Cathedral in May 2015 when, it was alleged, members of the family were excluded from the Mass on the basis of a dress code.
The Sherlocks say they were barred from the cathedral because of the length of the dresses and skirts worn by female members of the family and because of the neckline of their garments. The family also allege that they were harassed and that the dress code rules applied to them were not applied to other, non-Traveller, members of the congregation.
Making a complaint to the WRC under Section 21 of the Equal Status Act 2000, the Sherlocks alleged that they were discriminated against on the grounds of gender, race and their membership of the Travelling Community.
The Sherlocks submitted that in providing the Sacrament of Communion, the Church was a provider of a service that comes within the terms of the Act, particularly Section 2 (1) which states: “a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes— (a) access to and the use of any place”.
The Act does give examples of types of service that might be included in the ambit of the legislation and none of these involve religious services, but the Sherlocks argued that just because religous services were not mentioned did not mean that they were excluded.
They also argued that even if the dress code applied on the day was legitimate and allowable, “it has to be pointed out that this categorisation was enforced in a discriminatory way since the mode of dress did not result in the barring of any woman or man of the wider community”. They said: “Only Traveller women were excluded, and this even though the dress of others was exhibiting more elements that were deemed inadmissible by the said code than what was worn by the Traveller women who were barred, for example as regards length of dresses or skirts, or as regards neck-lines, etc.”
Responding, Bishop Drennan’s legal team refuted the substantive allegations, but also submitted that the Oireachtas did not consider religious services to fall within the jurisdiction of the legislation. It pointed out that while other provisions of the Equal Status Act do refer to religious matters, there are no such references linked to the definition of service in the Act. The bishop’s lawyers argued that the rule of ejusden generis, should apply, ie where general words in a statue follow specific words, those general words can be construed only as referring to the types of things previously specifically identified.
WRC director-general Liam Kelly agreed that the ejusden generis rule applied, saying: “I do not find that the service sought by the complainant can be constructed in the same sense as the examples given in the Act”.
Mr Kelly also made reference to a court case dating back over a hundred years, O’Hanlon v Logue Supreme Court of Judicature Court of Appeal , where a Ms M’Laughlin bequeathed monies to the Catholic Church for the celebration of Masses and it was argued that such a bequest was not a valid charitable gift. In that case, Mr Kelly said: “The Court held on appeal that worship, which in that case was a Mass, is ‘the essence of the gift to God’ by those participating rather than for the edification of those present and not something available for the general public. While this is an old case, and was decided in a very different context, I believe that it remains relevant to, and persuasive for, the proposition that the celebration of a Mass is not a service to its participants.
“There are other reasons as to why I am forced to the view that access to religious services or sacraments do not come within the ambit of the Act. If it were otherwise, it would be unlawful for Churches to refuse the Sacrament of Matrimony to persons who were divorced, or to provide that facility to persons of the same gender. Likewise, it would be unlawful to provide access to Holy Orders to exclusively men to the exclusion of women. There are also many examples of religious denominations that apply different rules to men and women in participation in worship or religious services. There seems to me to be no reason in law or in logic to differentiate between these type of religious services and a Holy Communion Mass.
“If the Oireachtas had intended to apply the principle of equal treatment, enshrined in the Act, to all of these situations, it would have said so in express terms.
“I find therefore that the services sought by the complainant, namely access to a First Holy Communion Mass, is not a service as defined in the Act and I therefore find the respondent did not engage in prohibited conduct.”
While dress codes are rarely explicitly stated at the entry to Irish places of worship, dress code notices are common enough in continental Europe, especially at sites that draw non-religious tourists. At the entry to St Peter’s Basilica in Rome, for example, a notice states that men and women are required to have their legs covered – short trousers and short skirts are not acceptable wear for those seeking entry.