The Fifth Amendment of the Constitution of Ireland, which is effected by the Fifth Amendment of the Constitution Act, 1972, is approved by referendum on December 7, 1972 and signed into law on January 5, 1973.
The amendment deletes the entirety of Article 44.1.2 which allowed the State to recognise 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.
Also deleted by the amendment is Article 44.1.3 which allowed the State to also recognise the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.
In drafting the Irish constitution in 1936 and 1937, Éamon de Valera and his advisers choose to reflect what has been a contemporary willingness by constitution drafters and lawmakers in Europe to mention and in some ways recognise religion in explicit detail. This contrasts with many 1920s constitutions, notably the Constitution of the Irish Free State of 1922, which, following the secularism of the initial period following World War I, simply prohibits any discrimination based on religion or avoids religious issues entirely.
De Valera, his advisers, and the men who put words to de Valera’s concepts for the constitution face conflicting demands in his drafting of the article on religion. In contemporary terms, the Amendment marks a defeat for conservative Catholics and Pope Pius XI explicitly withholds his approval from it.
Though perceived in retrospect as a sectarian article, Article 44 is praised in 1937 by leaders of Irish Protestant churches, notably the Church of Ireland Archbishop of Dublin, and by Jewish groups. Conservative Catholics condemn it as “liberal.”
When the contents of Article 44 are put to Pope Pius XI by Cardinal Eugenio Pacelli, then Cardinal Secretary of State, later Pope Pius XII, the pope states in diplomatic language, “We do not approve, nor do we not disapprove – we will remain silent.” It is said that the Vatican is privately more appreciative of the constitution, and Pius XII later praises it.
The Fifth Amendment is introduced by the Fianna Fáil government of Jack Lynch and supported by every other major political party. The Catholic Church does not voice any objection to the amendment, but it is opposed by some conservative Catholics. Some leading members of the Church of Ireland and the Jewish Community say during the campaign that while they appreciate the Article’s recognition of their existence in 1937, it is no longer needed in the 1970s and has lost its usefulness.
The referendum on the amendment occurs on the same day as the referendum on the Fourth Amendment which lowers the voting age to eighteen. The Fifth Amendment is approved by 721,003 (84.4%) in favour and 133,430 (15.6%) against.
Having completed its passage through the Oireachtas and been adopted by the people, it is enacted by being signed into constitutional law by the President of Ireland, the man who had drafted the original article, Éamon de Valera.