Successful Litigation Against Minister For Defence

On 16th November 2018, I wrote to the Minister for Defence about religious discrimination in the appointment of Defence Forces chaplains. When I did not receive any substantial reply to the issues raised, I subsequently wrote again to the Minister on the same subject, roughly every two months for around two years.

Notwithstanding all of this correspondence, on 6th November 2020 Simon Coveney as the Minister for Defence appointed another military chaplain according to the discriminatory process that I had been complaining about. As a result, I initiated legal proceedings against the Minister under the terms of the Employment Equality Act. The case was heard in March of 2022 and all of the documents associated with the case can be accessed at the bottom of this page. Those documents can be placed in context by considering the timeline below.

November 2018

The original letter that I wrote to the Minister for Defence is included in Appendix 1 to the written submission I provided in advance of the Hearing. That document is provided in full at the bottom of this page. The letter states as follows:

“There are many non-religious chaplains working in Ireland. That publicly-funded chaplain positions are appointed by bishops, treats potential non-religious applicants less favourably. There is no reason why State-funded Chaplaincy positions should be appointed by bishops in secret, rather than open to applications from those of all faiths and none.”

Correspondence to the Minster for Defence

Defence Force Regulation A3 Section 1, requires chaplains to be appointed by bishops. That provision is illustrated below.

On 12th February 2019 I wrote again to the Minister, this time stating that:

“I would like to provide you with formal notice that I and others are interested to apply for such State-funded military chaplain positions.”

Correspondence to the Minister for Defence

I wrote again to the Minister about the same issues on 20th April 2019; on 18th June 2019; on 16th July 2019; on 26th September 2019; on 22nd November 2019; on 25th January 2020; and on 17th June 2020. Several of these letters are contained in the appendices provided at the bottom of this page. The correspondence includes repeated expressions of interest in applying for military chaplaincy roles, and repeated formal requests for notification of any vacancy.

June 2020

Nobody at the Department of Defence attempted any kind of response to the substance of the arguments that I had made, until 19th June 2020. Appendix 5 provided at the bottom of this page contains a full copy of the letter that I received from the Department on this date. The correspondence studiously avoided dealing with any of the issues that were put to the Minister. However, separately I submitted a Freedom Of Information request for internal Department of Defence documents relating to this subject. The results of this request included several internal emails, containing discussions about how the Minister might respond to me.

The first internal draft of the letter that was sent to me on 19th June 2020, contained the paragraph illustrated below. However, this paragraph was then deleted before the letter was sent to me. Appendix 5 provided at the bottom of this page includes the internal emails within the Department of Defence to which various initial drafts of the letter were attached.

It seems that whereas some people within the Department initially remained committed to Defence Force Regulation A3.1, others were not so sanguine about this religious discrimination persisting and had the sentence illustrated above removed. Notwithstanding this, no changes were made to the process of appointing military chaplains.

I replied to the Minister on 22nd June 2020, and then I wrote to Simon Coveney as the newly appointed Minister for Defence on 29th June 2020. I reiterated for Minister Coveney all of the points that I had already made to his predecessor over the previous 18 months, including the following issue:

“Section 6 of the Defence Forces Act includes an oath for every officer within Oglaigh na h-Eireann, which declares loyalty to Bunreacht na hÉireann. Article 44.2.3 within that Constitution states as follows:

‘The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.’

In contrast, the Defence Forces today explicitly discriminate on the ground of religious belief. Only those with Christian beliefs are appointed as chaplains.”

Correspondence to the Minister for Defence

I wrote again to Minister Coveney on 31st August 2020, but still did not receive any substantive response on these issues.

September 2020

Some of the letters that I wrote to Minster Coveney (which included some further correspondence on 30th September 2020) are included in the appendices provided at the bottom of this page. I still did not receive any response to the substance of the arguments that I had made, but I did receive an email suggesting that officials in the Department may be willing to arrange a meeting with me to discuss the issues at some unspecified future date. The request that I made under the Freedom of Information Act also turned up some interesting internal discussions within the Department on early drafts of this correspondence, such as the one illustrated below:

It is clear that within the Department of Defence they were aware that there are many non-Christian chaplains who may be interested to apply for roles within the Defence Forces, but they were unwilling to acknowledge the existence of such people in writing. Moreover, it is also clear that in discussing my candidacy for military chaplaincy positions, the Department of Defence was not interested in my experience or qualifications. The only issue they considered in this context, was that I am not a Christian.

October 2020

Less than two weeks after the last correspondence that the Department had with me on the subject of military chaplains, they received the letter below from Bishop Tom Deenihan. His Excellency wished to appoint one of his priests as a military chaplain and the only qualification offered for the proposed candidate was his status as “a priest in good standing”. 

Less than a month later, Minister Simon Coveney wrote back to His Excellency confirming the appointment. At this point, I had written to the Minister roughly every two months for around two years, explicitly stating my interest in the role and repeatedly asking to be informed if a vacancy arose. Minister Coveney did not inform anyone else about the role, but instead kept this publicly-funded appointment strictly between himself and the bishop.

Contrary to public sector employment rules, Minister Coveney confirmed this appointment without any public advertisement, based purely on the whim of a bishop.

March 2022

The Chief State Solicitor’s Office did not provide a written submission in advance of the Hearing in March 2022, other than the “Index Of Authorities” provided at the bottom of this page. However, during the Hearing the barrister that had been instructed by the Chief State Solicitor’s Office argued that being a Christian was “an occupational qualification for the post” according to Section 37.2 of the Employment Equality Act. This provision would provide for lawful discrimination on the religion ground, if religion represented a necessary part of the role. For example, if a Roman Catholic seminary wished to employ a chaplain, then they could specify a belief in Catholicism as a qualification for the post, and they would not be required to give equal consideration to atheist applicants.

So the onus was then on the Department of Defence to explain why it is an “occupational qualification” for chaplains to be Christians selected by bishops, such that non-Christians would be unable to act in this role. There were three separate arguments advanced in this regard, which are considered separately below.

Catholic Majority

Evidence was presented on behalf of the Department of Defence in relation to the religious breakdown of their members. A large majority of our Defence Forces have described themselves as Roman Catholic, although it is unclear whether this means that they currently practice the faith or merely that they were baptised as a baby. Around 5% of our Defence Forces have described themselves as non-religious and roughly 1% have associated themselves with another Christian denomination. The Department argued that this religious breakdown justified their appointment of 15 Roman Catholic chaplains and 1 Church of Ireland chaplain.

In response, I argued that it is not open to the Department of Defence to make appointments to publicly-funded roles by sectarian headcount. Since the military chaplaincy service is for members of the Defence Forces from all faiths and none, positions within that chaplaincy should be appointed to the best candidate for the job from applicants of all faiths and none. Moreover, even by their own measure the process implemented by the Department was discriminatory. While their figures suggest that there should be a non-religious chaplain before a Church of Ireland chaplain, their recruitment process in fact excluded all non-Christians by design.

Force Multiplier

The Hearing also heard from a Catholic priest currently serving as a chaplain within our Defence Forces, who described himself as a “force multiplier”. The suggestion was that our Defence Forces become more effective while deployed, when a chaplain is available to engage with local communities.

Evidence in this regard was also provided by a serving Captain within our Defence Forces, who described the process of moving armour through a village while deployed in Lebanon. Situations were described whereby such movement of armour may be safer for our soldiers if agreement is secured in advance from the local representative of Hezbollah. Chaplains were described as being key to such “force protection” activities.

I was astonished to be told that recruitment processes within our Defence Forces insist on Christian chaplains to the exclusion of all others, because this reflects the religious preferences of Hezbollah. I asked the Army Captain whether he had ever heard Western Christians referred to pejoratively as “crusaders” by local groups in the Middle East. He had indeed, and so I could then wonder why all of our Defence Forces chaplains are not Shia Islamists, since a key function of their role is apparently to adhere as closely as possible to the preferred religious beliefs of Hezbollah.

When pressed, the serving Defence Forces chaplain admitted that he had worked with humanist military chaplains from other nations on the same deployments in Lebanon. He accepted that with respect to all aspects of the chaplains role, whether acting as a “force multiplier” or otherwise, that the non-religious chaplains were every bit as effective as Christian chaplains. Moreover, the serving Captain within our Defence Forces also accepted that he had no reason to believe a Christian chaplain would provide better “force protection” than a non-Christian chaplain. That is, the witnesses called by the Department of Defence were unable to agree with the argument offered by the Department, that Christianity was “an occupational qualification” for a military chaplain.

Required Services

The final argument offered by the Department of Defence was that chaplains must be Christian, because Christians have an obligation to attend weekly services. Whether this requirement is considered to be imposed by the Pope or by the Christian god, the Department argued that they insist on chaplains being Christian based on this supposed imperative.

Of course, similar obligations exist within many other religions too. However, there was no explanation as to why the Department of Defence must studiously adhere to Christian obligations while insisting that all others must be ignored. However, given that I am an atheist, the central argument of the Department was that even if they honoured all religious obligations equally, I would still be properly and lawfully excluded from chaplaincy positions.

During the Hearing, I argued that this represented unjustified prejudice against atheists. For example, my correspondence to the Minister (which is included within Appendix 6 available at the bottom of this page) included the following comments:

“It is often said that “there are no atheists in foxholes”, but this is simply not true. In fact, there are more atheists in foxholes than chaplains in foxholes. For example, Steven Hewett is an atheist and an Irish citizen, who has served in the U.S. Army. While deployed to Afghanistan, Staff Sergeant Hewett earned a Bronze Star, a Combat Action Badge and several other medals. Steven has given the following short statement to me, in the context of his appearance on The Free Thought Prophet podcast:

‘I have proudly served alongside a diverse group of soldiers with a variety of different religious beliefs. Our military encompasses people from all walks of life, faiths and beliefs; from Christians, Jews, Buddhists, Muslims, Wiccans, Pagans … and yes even atheists who do not believe in any God. We serve our country and families not due to our religious belief but for the purpose of ensuring that our freedoms are not trampled upon by others. Yet the freedom to be given counsel within our military (whether it be spiritual or not) by a Chaplain of like mind, is denied to many of us by the very government that we would give our life to defend.’

Staff Sergeant Hewett served alongside Muslim and Christian soldiers when he was deployed. Whereas Christian soldiers had access to the counsel of a chaplain, Muslim soldiers often did not, and Staff Sergeant Hewett did not as an atheist. Steven has since campaigned for religious equality for all minorities in the military, so that nobody is treated less favourably due to their religion. It is not acceptable for any government to send its military into harm’s way, while disrespecting the philosophical convictions of those in uniform.”

Correspondence to the Minister for Defence

Moreover, my correspondence to the Minister (which is included within Appendix 1 available at the bottom of this page) also included the following comments:

“Other European countries have long since recognised and addressed this issue. For example, Commander Erwin Kamp is a non-religious Chaplain in the Dutch Armed Forces, who has said that non-religious Chaplains within the Dutch Military:

‘took part in every deployment from Lebanon to Afghanistan. We organise the same activities for our military, veterans and their families as our Christian colleagues’.”

Correspondence to the Minister for Defence

From the comments of Staff Sergeant Hewett, it is clear that when atheists are asked to put themselves or others in harm’s way, they can have all of the same requirements for “counsel by a chaplain of like mind” that the religious do. From the comments of Commander Kamp, it is also clear that military atheists organise equivalent services, gatherings and ceremonies to those of the religious.

There is absolutely no basis for the Department of Defence to studiously honour the requirements described by Christians, while insisting that the requirements described by atheists must be ignored. To give more weight to Christian beliefs than atheist beliefs in this way, represents straightforward religious prejudice against atheists. In fact, this is the very kind of consideration that is proscribed by Section 6 of the Employment Equality Act, which prohibits less favourable treatment of people because “one has a religious belief and the other has not”.

Privileging the requirements perceived by Christians to the exclusion of the requirements perceived by atheists, is not an argument that the Christianity of a chaplain is “an occupational qualification” for the position. This is an argument that Christianity is superior to atheism and that the Department of Defence should attend to the requirements of Christians contained within the tenets of that faith, while ignoring the requirements of atheists. I found this position to be offensive and said so during the hearing.

Decision Of The Adjudicator

This case was decided on 1st March 2023 and the full written decision of the adjudicator is available at the bottom of this page. It states as follows:

“I decide that the complainant was discriminated against on grounds of religion, and I order that the respondent review the process of appointing military chaplains to ensure compliance with the Employment Equality Act and to ensure that suitably-qualified candidates can apply for military chaplaincy roles in order to reflect and foster the diversity of members of the Defence Forces.”

Quote from Decision of the Workplace Relations Commission

I subsequently wrote to both Simon Coveney as the then Minister for Defence, and Micheál Martin as the current Minister for Defence, in order to follow up on this issue. Full copies of all that correspondence are available at the bottom of this page. I asked both Simon Coveney and Micheál Martin to answer the following two questions:

1. Will you offer a public apology to all members of the Irish Defence Forces for the religious discrimination within their Support Services? Will you offer a particular apology to the atheist and minority faith members of our Defence Forces who have been directly harmed by this unlawful behaviour?
2. Will you ensure that cabinet begins the process of changing the Defence Forces Regulations so that in future, military chaplaincy roles are awarded to the best candidate for the job and not merely the candidate preferred by a given bishop? Will you seek to ensure that no more atheist and minority faith citizens of Ireland are again the victims of such unlawful religious discrimination in the appointment of State-funded positions?

Whereas my correspondence on these topics since 2018 has been almost entirely ignored, I have noted that Roman Catholic bishops have had no such difficulty in soliciting personal replies from the Minister for Defence. Since this behaviour has now been found to be unlawful, I will be interested to see if the current Minister can manage a personal reply to my letter, even though I am not a Roman Catholic bishop.

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• Written Submission In Advance Of Hearing
• Appendix 1 To Written Submission
• Appendix 2 To Written Submission
• Appendix 3 To Written Submission
• Appendix 4 To Written Submission
• Appendix 5 To Written Submission
• Appendix 6 To Written Submission
• Appendix 7 To Written Submission

• Index of Authorities submitted by Department of Defence

• 2023-03-01 Decision ADJ-31432
• 2023-03-02 Letter to Micheál Martin
• 2023-03-02 Letter to Simon Coveney