Regulating Religious Function: The Strange Case of Mass Cards

Date01 January 2010
Regulating Religious Function: The Strange
Case of Mass Cards
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
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.
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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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