David Kenny, PhD student at Trinity College Dublin School of Law has an article in today’s Irish Times charting the arguments made in the McNally Mass Cards case (Thomas McNally is pictured above) in the High Court. We mentioned the case here. According to Kenny, the central issues argued before the High Court were:
- Whether the special provision in s.99 was necessary to guard against fraudulent Mass cards, or whether the existing criminal law was adequate to this purpose.
- Whether s. 99 of the 2009 Act infringed the rights of the purchasers of Mr McNally’s cards to profess and practise their religion freely as guaranteed by article 44.2.1. Mr. O’Donnell SC for the state, argued that, in this respect, Mr. McNally’s claim was based on the rights of a third party and should not be entertained.
- Whether s.99 drew an impermissible distinction on the grounds of religious status in contravention of article 44.2.3 by distinguishing bishops and provincials from other clerics in deciding who could approve an arrangement. Mr. O’Donnell SC argued that any distinction drawn between bishops and provincials and other clergy was justified in this context by reference to article 44.2.5, giving religious denominations autonomy over their own affairs, because the distinction was one made within the religion itself, not one imposed by the State.
- Whether it was permissible for a statute to delegate state power to religious bodies. A central point of contention between Dr. Hogan SC for Mr. McNally and Mr. O’Donnell SC for the state turned on whether we can draw out the scope of Article 44 by analogy with certain principles of American constitutional law. Dr. Hogan sought to introduce the American concept of “excessive entanglement” of church and state to support his argument. He said that ‘[t]he Irish Constitution, though different in many respects to the US constitution, was in substance a secular document, and could not abide the State delegating control over this ‘loose licensing system’ for Mass cards to church officials.’ Mr. O’Donnell argued that the U.S. case law was irrelevant because there was a vast difference between the Jeffersonian “wall of separation” between church and state erected by the US Constitution, and the Irish Constitution, which in article 44.1 pledges that the State shall “respect and honour religion”.