The Religious Upbringing of Children in “Mixed Marriages”: The Evolution of Irish Law

Mixed marriages have long been a vexed issue in Ireland. Although they have been frowned upon by both Christian traditions, in Ireland, church condemnation of them is coupled with a troubled historical backdrop. Conquest and colonization and the English Reformation established religion as a political identity whereby Protestantism became associated with a colonizing alien force, and Catholicism became a symbol of dispossession. The problems surrounding mixed marriages in Ireland, therefore, stem not only from theological objections, but also from perceived political affiliations. Indeed, because religion and politics in Ireland have been inextricably bound up together, such relationships often concurrently transgress social and political lines.

In Ireland, most mixed marriage disputes have centered on the religious upbringing of the children of the union where the Catholic church and the state held potentially conflicting positions.¹ Civil law long dictated that the father had an absolute right to decide on the religious upbringing and education of his children, a principle known as “paternal supremacy” and a relic of old English civil law. In contrast, the Catholic church insisted that children of mixed marriages should be brought up as Catholics, irrespective of the faith to which either parent belonged. The disputes examined in this article, all of which came before the Irish courts, shed light not only on the fraught relationship between the Catholic church and state in terms of mixed marriages, but also establish how the outcome of one such dispute, the Tilson case in 1950, irrevocably changed the civil law position on the religious upbringing of children. This judgment, by relying on the relevant articles of the 1937 Constitution, ended the centuries-old tradition of paternal supremacy. From the Catholic church’s perspective, however, the ruling was irrelevant; that denomination steadfastly maintained its position regarding the religious upbringing of children of mixed marriages.

The Council of Trent promulgated the Tametsi decree in 1563 in an attempt to eliminate clandestine marriages by insisting, among other things, that there should be one priest and two witnesses present at the ceremony. This “canonical form” was reaffirmed with the promulgation of the Ne Temere decree in 1908.² In 1910, the questions of clandestinity, validity, and the number of witnesses were central to a dispute arising from an interdenominational relationship that came before the Irish courts. The Ussher case in Galway pitted canon law against civil law, as it required the courts to decide if a marriage between two Catholics solemnized by a Catholic priest—but with only one witness—was civilly valid.

William Arland Ussher had converted from Protestantism to Catholicism (albeit in unusual circumstances), and then married the Catholic Mary Caulfield before Rev. Joseph Fahy, a local Catholic parish priest. Ussher later took a civil action to obtain a declaration that his marriage to Caulfield was null and void, as it had not been performed in accordance with the regulations of the Catholic church as set out in Tametsi. In other words, his case was taken on the basis of an irregularity of canonical form; he argued that the validity of the marriage depended on whether it was considered to be so by the Catholic church. The couple cohabited after the marriage and Mary Caulfield gave birth to a baby daughter one year later. Her defense asserted that should the marriage be declared unlawful, “the child would be bastardized and the mother degraded.”³

The court was told that Ussher had based his determination to have a clandestine marriage on the fact that he was soon to inherit part of his father’s estate, and that his conversion to Catholicism or his marriage to a Catholic might jeopardize his inheritance.⁴ He originally put the idea to the local parish priest, Father Fahy, who insisted that there should be two witnesses to the ceremony, in accordance with the decrees Tametsi and Ne Temere. The popular understanding of Ne Temere often erroneously associates it with the religious upbringing of children of mixed marriages. In fact, the decree did not speak to the childrens’ faith or their religious upbringing; rather, it addressed the validity of all marriages...