1985 revisited: When festering tensions between the State and Church finally came to a head

The judges found the ban on the importation of contraceptives was unconstitutional, and May McGee had the right to limit the number of her children by artificial means.

Now the battle lines were drawn. Sooner or later — irrespective of Church teaching —the State would have to give legislative effect to the ruling in the McGee case.

But it would take until 1985 before this was fully realised. During the interim, Fianna Fáil returned to government in 1977 with a whopping 20-seat majority. The taoiseach, Jack Lynch, announced the government’s intention to introduce family planning legislation, and the task went to the new minister for health, Charles Haughey.

Mr Haughey’s legislation — now memorably, if risibly, remembered as “an Irish solution to an Irish problem” — was called the Health (Family Planning) Act 1979, and it provided for the sale of contraceptives only at chemists and only on prescription. 

It was indicative, according to historian Diarmaid Ferriter, of “the timidity of politicians in the face of pressure from the Catholic right”.

Two Cork politicians played central roles in distancing the State from the Church’s moral teaching and in redefining the relationship between Church and State in 1985: Barry Desmond and Peter Barry.

As minister for health in the Fine Gael-Labour coalition government headed by Dr Garret FitzGerald, it would fall to Mr Desmond to introduce the Health (Family Planning) (Amendment) Bill 1985.

The bill aimed to legalise the use of condoms, which were to be sold without a prescription to anyone over the age of 18. Today, when condoms are so widely available in all sorts of outlets, including pubs, this seems terribly quaint.

Nevertheless, even though Mr Desmond’s bill, as Chrystel Hug has recounted in her book,  The Politics of Sexual Morality in Ireland, “was mainly the regularisation of what was happening anyway, the law passed with only a majority of three deputies, and met the virulent opposition of Fianna Fáil and the Catholic Church”.

During the debate on the bill in Seanad Éireann, Catherine Bulbulia was emphatic in her support for the wider availability of contraceptives: “This bill has as its backdrop the Kerry babies’ tribunal, the tragic case in Granard, the Eileen Flynn case and, laterally, the discovery of the body of a tiny newborn baby girl in a plastic bag in Galway. Births outside wedlock have risen from 2.7% of all births in 1971 to 6.8% in 1983.”

The government had won an important trial of strength. The loyalist newspaper the Belfast News Letter translated this in to a bold headline, announcing ‘Garret beats the bishops’.

In his book The Crozier and the Dáil, John Cooney summed up what was at stake: ”There had been no doubt in anyone’s mind that Church and State were locked in to a public debate on the question of sovereignty in the sphere of morality.”

Another trial of strength was looming on the horizon: This time on divorce, and this time the bishops and the Catholic right would have an emphatic victory.

From the outset, the government was ever mindful of what some ministers recognised as the ingrained conservative ethos of the Irish electorate. So the first divorce referendum was doomed.

“There was an immense determination by conservative forces in Irish society, notably in the convergence of Fianna Fáil and the Catholic hierarchy, to defend ‘traditional values’,” recorded Mr Desmond.

“Thus, the government faced in to the 1986 divorce referendum with Pádraig Flynn declaiming that divorce was ‘like a Frankenstein stalking the land’.”

The 1980s were a time of great unease and uncertainty here. The economy was in recession, and there were fears for the future of constitutional nationalism in the aftermath of the hunger strikes of 1981 and the rise of Sinn Féin.

Deep-seated misogyny

The national angst led to the bizarre phenomenon of the “moving statues” in 1985, and one could detect in the Kerry Babies tribunal of the same year traces of a deep-seated misogyny with religious roots.

But the currents of reform were also stirring. And with the afterglow fading from the papal visit of 1979, the Catholic bishops found themselves increasingly on the defensive.

Yet, as the 1986 divorce referendum demonstrated, the Church remained a powerful force in the Republic. Its ability to rally support to prevent society going in a direction contrary to its doctrines had already been unmistakably manifested in the 1983 abortion referendum.

In September 1957, a committee on homosexual offences, established by the British government, issued its findings. The Wolfenden Report examined the relationship of religion, morality, and the law, and one of its key recommendations was that homosexual acts done in private between consenting adults should cease to be criminal offences. 

The report said there were areas of private morality that were none of the law’s business, making a crucial distinction between sin and crime.

In time, this would form the cornerstone of the challenge in the High Court in Ireland by David Norris to two laws outlawing homosexuality.

“The laws banning homosexuality were inherited by the Irish state from the reign of Queen Victoria,” said Chrystel Hug. “They were passed in 1861 and 1885 by the British parliament, whose concern was to regulate sexuality.

“The 1861 and 1885 British laws were automatically taken over by the Irish Free State, like all British common law and statute law, and kept on since nothing invalidated them in the 1937 Constitution. The issue was never debated in the Irish parliament.”

Mr Norris’s challenge to these laws failed in the High Court in October 1980, and his appeal to the Supreme Court was rejected in April 1983. Mr Norris then took his case to the European Court of Human Rights (ECHR) in Strasbourg, and eventually, in October 1988, the court ruled in his favour. 

Now, with the necessity for change imposed by the ECHR, the Irish government would have to act, in spite of Church opposition.

The changing relationship between State and Church was to be the subject of a major speech by the minister for foreign affairs, Peter Barry, at a lunch in Iveagh House in September 1985 in the presence of Cardinal Agostino Casaroli, Vatican secretary of state, and senior members of the Irish hierarchy.

Mr Barry spelled out two principles that appeared to have been accepted by the Irish bishops in their submission to the New Ireland Forum in 1984: (a) It was the duty of the Church to preach its message, but (b) it was the duty of elected members of the Oireachtas to legislate in accordance with their conscience in the best interests of the Irish people.

“That speech sent a clear message to Rome that the ‘special relationship’ between Church and State in Ireland had formally come to an end,” wrote Professor Dermot Keogh, of University College Cork, in his book Ireland and the Vatican.

Ireland was moving — at last — from Church and State to State versus Church.