Justine McCarthy: Keeping Enoch Burke locked in a cell, wallowing ...

Enoch Burke is still doing time in Mountjoy jail. He has already done more than 200 days and seems likely to set a record for time served for contempt of court. Despite his zealous conviction that he knows the way, the truth and the light and Ireland is going to hell in a handcart of debauchery, you would have to feel sorry for the man. He should have been at home, in the bosom of his family of evangelical Christians, for Christmas. Instead, he got his turkey dinner dished up behind bars and saw the dawn of a new year that heralds scant hope of his immediate release from prison.

According to common law, the teacher must remain incarcerated until he purges his contempt for defying a judge’s order to stay away from his former place of employment, Wilson’s Hospital School in Westmeath. His repeated refusal to oblige has made him a most unwelcome guest of the nation in Mountjoy. He is due back in court next month for a routine appearance but there is no expectation that he is ready to climb down off his moral high horse.

Burke, with the falsetto backing of family members, has tried to muddy his contempt of court by presenting it as his constitutional right to reject others’ transgender identity. Wilson’s Hospital School suspended him after he objected at a school gathering to guidance that staff should use a transitioning student’s preferred they/them pronouns, but that is not the reason the teacher is in jail. He is locked up because he has flouted a court order to stay away from the school. That is a separate issue and is, properly, being treated as such.

Similarly, contempt of court was a separate issue when the late politician Liam Lawlor was jailed for not honouring discovery orders at the Flood Tribunal, and when the former billionaire Seán Quinn was jailed for preventing the seizure of his international property empire by Irish Bank Resolution Corporation. Judges must have leverage to persuade the recalcitrant to abide by their decisions.

By now, Burke has spent longer in jail than either Lawlor or Quinn and more than twice as long as the 94 days that five protesters against the Shell gas pipeline in Mayo were imprisoned for contempt during their epic standoff.

Burke’s situation appears intractable. Were the courts to keep sending him back to jail forever and a day, he could, potentially, find himself staying there longer than some of the killers in his midst. No matter how you look at it, that could not pass for justice.

On the other hand, he cannot simply be exonerated and set free with no undertaking to stop trespassing at the school. For that would undermine the state’s administration of justice and the authority of its judges. The courts have imposed daily fines of €700 for every time Burke breaches the injunction but the measure has proven as ineffective as his imprisonment in compelling him to comply with the order.

Meanwhile, the State has been accruing its own costs with Burke’s continuing accommodation in jail and the disruption repeatedly caused by members of his family in the courtroom; some of whom have had to be physically removed.

Plus there is spill over from the courtroom drama, not least being the upset Burke’s behaviour has caused to students and other teachers at Wilson’s Hospital. Fine Gael TD Alan Dillon got a lash of the collateral damage when he attempted to go shopping in his local supermarket on Christmas Eve. He abandoned his mission after being confronted in the shop by the teacher’s mother, Martina Burke, and one of his brothers, who incessantly barracked the politician about their family member’s incarceration in jail “because he will not accept transgender ideology”. A video of the 7.39-minute encounter that was posted on the Enoch Burke X page attracted 1,733 likes and more than 680 reposts.

This stalemate between Burke and the judiciary cannot go on forever. But what is to be done when an unstoppable force meets an immovable object?

The Irish Times reported on Monday that the Department of Justice is planning a new process for revoking the citizenship of naturalised immigrants who commit certain serious crimes. A new bill is necessary because the Supreme Court struck down the Irish Citizenship and Naturalisation Act 1956, finding it unconstitutional. The state has a list of about 40 naturalised citizens it wants to strip of their Irish citizenship.

It would be extreme to apply the same rigours to Burke’s conduct but the dichotomy exposes a fault line of discrimination between the treatment of naturalised citizens, who swear an oath of allegiance to the State, and those born in the country and whose allegiance is automatically presumed. If new Irish citizens consistently refused to obey court orders and to purge their contempt, they would soon get short shrift.

Perhaps, when swearing on the Bible or affirming to tell the truth in court, witnesses, litigants and lawyers too should pledge to respect the rules of court. Article 34.5.1 of the Constitution requires new judges to declare that they will uphold the laws of the land. Should not everyone else?

The Burke case is too far advanced to start testing his fidelity with a declaration that would thrust his god and his country into open conflict. But surely there is a more fruitful way of dealing with his intransigence than locking him up in a cell. So far, that has benefited nobody.

[ Fintan O’Toole: Burke family values are reflected in Irish Constitution ]

One of the Burkes’ most remarkable traits is their assuredness that their protestations, which have targeted marriage equality, abortion and gay rights, are in society’s best interests. In that case, let Enoch Burke do his bit for the public good and, in doing so, perhaps open his eyes to the realities of other people’s lives. A dose of community service just might do the trick. Were he to witness – under strict supervision – the hurt suffered by those whom his god condemns and stigmatises, his self-righteousness might start to wane.

It has to be better than letting him sit in his cell nursing his own grievances and convincing himself he is a martyr for the cause.