Regulating Religious Function: The Strange Case of Mass Cards

• Date: 01 January 2010

Regulating Religious Function: The Strange

Case of Mass Cards

EO IN D ALY*

Introduction

Given the contentious history of the Church-St ate relationshi p in Ireland,

it is noteworthy that it is only in this secularised age that the regulation of

religion itself has entere d the legislative agenda. The State has never

legislated for the internal organisational affairs of religious bodies, nor lent

the weight of legislative sanction to particular forms of religious hierarchy

or organ isation, nor has it ever formally delegated civil authority to any

particular religious body. The historically close relationship bet ween the

State and the Roman Catholic Ch urch has had a more informal basis,1

with the rarely-invoked Article 44 of of Bunreacht na hEireann (“the

Constitution” ) remaining the almost exclusive legal basis for the State-

religion relationship. While Roman Catholic morality has certainly influenced

legislation which has typically remained denominationally neutral in formal

terms,2religion itself has remained remarkably free of civil regulation. While

of course subject to generally ap plicable regula tion to some exten t,3

religious bodies have never been subject to particular schemes of regulation,

particular to their own organisational needs. In 2009, two particular enact -

ments saw the State arrogate to itself the competence to determine criminal

sanctions on the basis o f religious criteria. The Defamation Act, 2006

prohibits the publication or utterance of matter that is “grossly abusive or

* BCL (Law and French), PhD candidate, University Coll ege Cork, Gove rnment of

Ireland Research S cholar in the Humanities and Social Sciences. I acknowledge the

support of the Irish R esearch C ouncil fo r the Humanities and Social Sciences.

Particular thanks are due to Mairéad Enright for helpful discussion and advice.

1See generally Hogan, “Church-State rel ations in Ireland from Independence to the

Present Day” (1987) 35 Americ an Journal of Comparative Law 47 , and Wh yte,

Church and State in Modern Ireland (Dublin, Gill and Macmillan, 1980).

2Hogan writes “Fianna Fáil [in the 1930s] did not object to legislation which tended

to enshrine Catholic moral prin ciples, and it avai led itself of every opportunity to

show that it supported orthodox Catholic teaching on social and moral issues”, ibid,

p 52. However, the Church was never granted formal civil powers in legislation, nor

were its internal rules subject to legislative sanction.

3However, religio n in th e broad sense has been excluded from the scope o f some

generally applicabl e laws. The Juries Act, 1976 (No 4 of 197 6), for example, auto -

matically excludes from jury service “a regular minister of any religious denomination

or community” and “vowed members of any re ligious order living in a mo nastery,

convent or other religious community”.

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insulting in relation to matters held sacred by any religion, thereby causing

outrage among a substantial numbe r of the adh erents of that religion.”4

Prosecution of the offence will necessitate judicial inquiry into the content

of religious belief, representing a significant State intervention on the terrain

of conscience and belief. The adoption of an explicitly religious criterion for

criminal sanction – which will surely necessitate, for its prosecution, judicial

inquiry into religious doctrine – gives the State a quite novel and unprece -

dented competence in this domain. The focus of this article, however, is on

the Charities Act, 2009 (No 6 of 2009), which purports to regulate the

internal function of a specific religious denomination. It creates an offence

of selling a Mass c ard “other than pursuant to an arrangement with a

recognised person”, defined as a bishop, or a provincial of an order of

priests recognised by the “Holy Catholic Apostolic and Roman Church”.5

A Mass card is a Catholic relig ious practice c onsisting of the sending of a

card to a bereaved person or family indica ting that a Mass will be said in

memory of the deceased.6A chall enge to the constitutionali ty of the

provision by a Mass cards retailer has recently been dismissed by the High

Court. In his ruling in McNally v Ireland, the Attorney General and Minister

of State for Community, Rural and Gaeltacht affairs7, MacMenamin J held,

inter alia, that the impugned pro vision related to a matter of publi c order

and therefore did not engage the religious freedom rights of the plaintiff, a

retailer, nor, however, of any other party. Furthermore, he held that the State

may legitimately give effect to the disabilities and discriminatio ns arising

within particular religions, given that the provisi ons of Article 44 of the

Constitution do not impose the same degree of separatio n of St ate and

religion that is required under the establishment clause of the United States

Constitution.8H owever, this article suggests that the provisio n represents

a form of licence, or of prior restraint, on the exercise of this particu lar

religious practice, and therefore violates the constitutional guarantee of the

“free pra ctice and profession of re ligion”, w hich is made sub ject only to

qualification s relating to “public order a nd morality”. It goes beyond the

legitimate aim of preventing the sale of Mass cards which are fraudulent in

a meaningfully sec ular sense, since it confines thei r sale to those deemed

4Section 36(2)(a) of the Defamation Act, 2006 (No 8 of 2006), emphasis added.

5Section 99 (3) of the Charities Act, 2009 (No 6 of 2009).

6Section 99 (3) of t he Charities Act, 2009 (No 6 of 2009 ) defines a Mass card as “a

card or other print ed material that indicates, or purpor ts to indicate, that the Holy

Sacrifice of the Ma ss (howsoever described) will be offered for (a) t he intentions

specified therein, or (b) such int entions a s will include the intentions specified

therein”.

7High Court, 17 December 2009 (provisional judgment) [hereinafter McNally].

8The High Court also briefly rejected arguments based on articles 81, 82 and 86 of the

EC Treaty (as then designated), under Council Direct ives governing “industrially

manufactured products”, as well as Article 38 of the Constitution. The discussion in

this article is confined to the grounds relati ng t o rel igious freedom and non-

discrimination under Article 44 of the Constitution.

56 EOI N DALY

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authentic according to criter ia which are plainly religious i n character.9It

potentially re strains a category of religious acts to the end o f upholding a

particular conception of clerical authority, thus thre atening renegade or

unorthodox forms of thi s practice. Furthermo re, in determinin g the

religious authorities competent to perform a particular religious activity, and

prescribing a parti cular form of internal rel igious organisati on, the

provision is inco mpatible with the constitutional guarantee that “every

religious denomination shall have the right to man age its own affairs” .10

Finally, i t is argued to constitute an unconstitutional discrimination on

grounds of religious belief and status both in terms of its denominationally-

specific nature, an d i n i ts discrimination be tween clerical authorities of

different status.

The Mass cards regulation and the free practice of religion

The provision under consider ation was enacted in response to concerns

surrounding the sale of pre-signed or unauthorised Mass cards , in consid -

eration for which no Mass were said, or arranged to be said, or which were

otherwise non-compli ant with Roman Catholic rules surrounding this

practice. Minister of State for Community, Rural and Gaeltac ht af fairs,

John Curran, has stated that “it is not my intention to stymie the sale of

genuine Mas s cards, bu t to enhanc e public confidence and to ensure that

people’s good faith is not taken advantage of”,11 and that “people in such

circumstances should have no doubt that a Mass will be offered”.12 Thus,

it attempts to remedy thi s problem by creating an o ffence of sel ling Mass

cards other than those which are the object of an arrangement w ith two

specific cler ical authorities exhaustively enumerated by the Charities Act,

2009. Certainly, the provision catches the fraudulent sale of Mass cards

which cla im to offer a service, the sayin g of a Mass, which is not in fact

provided, or which falsely purport to be signed by a prie st. The State is

evidently entitled to restrain such activities in pursuit of the entirely legiti -

mate secular purpo se of consumer protection, or ensuring th at consumers

are not deceived by the fraudulent claims of a religious product. In the case

of a Mass card that advances or implies a fraudulent claim, the restrained

practice is purely commercial, and therefore secular in character, and thus

does not e ngage religious freedom rights. Howev er, the p rovision under

consideration does not merely restrain the sale of Mass cards in terms of the

secular criterio n of whether the cla im made by a religious product is true,

9It was thus descri bed by Senat or David Nor ris as “crac king a nut with a sledge -

hammer” – see Seanad debates, Vol 193, No 15, Tuesday, 17 February 2009.

10 See Article 44.2.5º of the Constitution.

11 McGarry, “New law to regulate sale of Mass cards” The Irish Times (31 July 2009)

12 ”Priest who ‘signed’ Mass card had been dead for two years” The Belfast Telegraph

(30 July 2009).

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