Mass Cards Case Begins
The Irish Times notes that a constitutional challenge to s.99 of the Charities Act 2009, which criminalises the sale of Mass cards* otherwise than by agreement with a bishop or provincial of an order of priests of the Catholic Church, has opened today before Mr. Justice McMenamin in the High Court. The plaintiffs are Thomas McNally, head of a Mass card production company in Longford and his sister Mary Reilly, who sells the cards. They are represented by Dr. Gerard Hogan SC. Mr. McNally sells pre-signed Mass Cards by arrangement with a Catholic bishop in Tanzania, who receives payment in exchange for promises to say Mass. S.99 is intended to deal with the fraudulent sale of Mass cards. We hope to provide guest commentary on this case in due course, but until then, the following opinion, written by the former Attorney General John Rogers SC, quoted by Senator David Norris in a Seanad Debate on the Charities Bill is a good guide to the constitutional issues involved:
These issues have been considered by the very distinguished Mr. Justice Walsh in his 1972 judgment in Quinn’s Supermarket v. Attorney General in which he stated: “Our Constitution reflects a firm conviction that we are religious people.” That conviction has sometimes caused difficulties to me and others but there is no argument about it. He further argued, however:
It appears to me therefore that the primary object and aim of Article 44, and in particular the provisions of s.2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person [this is the important part] so practising religion or holding those beliefs to any disabilities on that account.
He argued in the same judgment that as a result of Supreme Court decisions, legislative intervention into religious practice, which is allowed under certain conditions because freedom of religion is not an absolute right under our Constitution, should be subject to the following test: “Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
Section 96 will impose a disability on persons seeking to buy Mass cards for the purpose of professing their religion in that in seeking Mass cards they will not be able to acquire Mass cards other than those made available pursuant to an arrangement with a bishop or provincial of a religious order. It is difficult to see how the imposition of this disability is mandated or required by public order criteria or by the requirements of morality. On the face of it, section 96 seems designed simply to ensure that Mass cards have authentic provenance but it does so by way of an absolute blanket prohibition on the sale of Mass cards which are made available for public sale but which are not so available pursuant to an arrangement with a bishop or provincial of a religious order. There seems not to be a justifiable basis for imposing this disability on the getting of Mass cards; the dictum of Walsh J. that the law “shall not subject the person so practising religion or holding those beliefs to any disabilities on that account” appears to be offended by this absolute bar to access to Mass cards which derive from a source not the subject of an episcopal arrangement.
- A person might sell a Mass card which was fraudulent, in the sense that it was not signed by a priest, and/or in the sense that the seller would not procure the saying of a Mass for the deceased;
- A person might sell a Mass card to a person who believed that the price which he paid for the card would go for a charitable purpose, in circumstances in which this was not the case.
The proposed legislation goes further than is reasonably required to address these evils, in that it renders a sale unlawful simply because it is unauthorised, the matter of unauthorised sales may well be a matter of concern to the Catholic Church, but does not appear to constitute an issue of public order or morality which would justify limiting religious freedom in the manner contemplated.
The criminalisation of the sale of Mass cards is another aspect of the disproportionate nature of this piece of legislation. The criminalisation of the sale of Mass cards by those outside the categories of recognised persons will involve the State in the adoption in criminal jaw of restrictions in the practice of religion in a manner which is not supported by Article 44.
*A Mass card is a card sent to a bereaved person or family indicating that the sender has arranged for a Catholic Mass be said in memory of the deceased. The card is usually signed by the priest who will say the Mass, and he in turn receives payment for his services.