In 1950, George Gavan Duffy found in the High Court that Article 44’s ‘special position’ clause elevated Roman Catholic claims over those of a Protestant partner in a ‘mixed marriage’. For this reason the ‘Tilson case’ attracted great interest. It is at times forgotten (including by some historians) that the Supreme Court set aside Gavan Duffy’s contention.
The case centred on the actions of a member of the Church of Ireland, Ernest Tilson. He claimed, on the basis of common-law precedent, a father’s right (patria potestas) to determine the religion of his children. It was judicially defined in 1871 as ‘a very sacred thing bestowed by the Almighty’. While his Roman Catholic wife Mary was out working, Mr Tilson secretly removed the three eldest of his four children from the family home. He placed them in Smyly’s ‘Bird’s Nest’ Church of Ireland orphanage, which had a proselytising mission. Mrs Tilson went to court to reclaim her children. She argued (a) that she was unaware of and opposed to her husband’s removal of the three eldest boys to an orphanage, and (b) that Mr Tilson was bound to a pre-nuptial promise, under the Roman Catholic Ne Temere decree, to raise the children as Roman Catholics.
Mr Tilson lost his Supreme Court appeal. The overturning of ‘father’s right’ was confirmed. The court stipulated that Article 42.1 of the Constitution entrusted parents, including therefore a wife, with the upbringing of children.
Mr Tilson’s ‘mixed marriage’ promise to raise his children as Roman Catholics was considered a matter, however contentious, between individuals and churches within civil society. It would have been open to both parents to renege on the promise, but not one unilaterally. The fact that Mr Tilson had adhered to his promise for nine years, his consignment of his children to an orphanage and other detrimental factors were significant in the case outcome.
In essence, Ernest Tilson lost because he no longer possessed patriarchal privileges, not because he was a Protestant. Mrs Tilson won because she had acquired equality as a woman under the Constitution, not because she was a Roman Catholic.
Though not upheld on the basis of Article 44, the fact that Ne Temere was legally enforceable in defined circumstances ‘did little to sooth [Protestant] feelings’, as Jack White put it in 1975. Northern unionists used the outcome to generate ‘Home rule is Rome rule’ propaganda. As David Jameson revealed in 2014, the Tilsons later reconciled and reunited.