Judgment expected soon on challenge to Mass card regulations

 

The High Court recently devoted four days to a case which explored the extent to which a particular religious practice could receive protection from the State. David Kennyoutlines the issues

THE HIGH Court will shortly give judgment in the case of McNally v Ireland, a constitutional challenge to section 99 of the Charities Act 2009. This prohibits the sale of “Mass cards” within the State unless a Catholic bishop or religious provincial approves the arrangement. Conviction on indictment of selling non-authorised cards carries a fine of up to €300,000 or 10 years’ imprisonment.

Thomas McNally, whose firm, MCC, is one of the largest commercial Mass card sellers in the State, challenged the constitutionality of the law on the grounds that it is repugnant to article 44 of the Constitution, the provision dealing with religion.

It is the first major constitutional case to address directly the provisions regarding religion in the Constitution in almost a decade, and it includes a discussion on the position of Mass cards under canon law and an exploration of the status of Masses said by a priest suspended by his bishop.

MCC primarily sells presigned Mass cards. Mr McNally gives Fr Bernard Latus, a priest based in St Kitts and Nevis in the West Indies, €100 per Mass for three Masses said each month for the intentions of those who purchase his cards; one Mass for the deceased, one for the sick, and one for any other intentions.

Fr Latus’s name is printed on each card as the celebrant of the Mass to be offered.

Dr Gerard Hogan SC, for Mr McNally, argued that the law violated article 44 in several respects. It 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. Furthermore, the law 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.

Dr Hogan argued that it was impermissible for a statute to delegate state power to religious bodies, citing US cases which suggested that such delegation was “excessive entanglement” of church and state.

The 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.

He conceded that the State had an interest in regulating the sale of Mass cards to prevent fraud, but believed existing criminal justice legislation was adequate to deal with these problems.

Donal O’Donnell SC responded for the State, noting the 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”. US case law on delegation was, he said, inapplicable in Ireland.

He suggested the free practice rights jeopardised by the law, if any, were those of the buyers, not Mr McNally. Thus the plaintiff’s free practice claim was based on a jus tertii, the right of a third party, rather than his own rights and should not be entertained.

He 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 religions autonomy over their own affairs, as the distinction was one made within the religion itself, not one imposed by the State.

Regulation was essential, he said, to ensure Mass cards sold were legitimate, and once this was conceded, the State was entitled to delegate this decision to bishops and provincials, who were particularly well situated to judge the authenticity of the cards.

Mr McNally testified he had attempted to obtain the approval of a bishop in Tanzania for his arrangement with Fr Latus, and initially succeeded. This consent was later withdrawn, according to Mr McNally, following pressure from Irish bishops. In light of this, he felt it was unlikely he could come to a long-term arrangement with any bishop.

Under cross-examination, Mr McNally was questioned about his former arrangement with Fr Oscar Mkondana, a priest in Malawi, who had said MCC’s Masses for a number of years while suspended by his bishop from celebrating any sacrament, “without exception”.

The bishop notified Mr McNally of the suspension. However, Mr McNally obtained the opinion of a canonist, who concluded that a suspension did not necessarily preclude the saying of Mass in private, and accepted Fr Mkondana’s contention that his suspension did not prevent him from doing so. Mr McNally continued his arrangement with the priest for several years. MCC’s arrangement with Fr Mkondana was investigated by Det Sgt James McCarthy, who also testified, and both Mr McNally and Fr Mkondana were interviewed. A file was sent to the Director of Public Prosecutions, but no prosecution was pursued.

Fr Ed Grimes, a member of the Holy Ghost order, was called to give evidence for the State as to whether or not presigned Mass cards of the type sold by Mr McNally and others were in conformity with canon law.

Cross-examination of Fr Grimes included a lengthy discussion on whether there was, in the Catholic Church’s view, any theological distinction between the benefit to a person who was the sole subject of a Mass, and one who was included in a collective Mass, to benefit a category of persons.

Despite prolonged exchanges, there was no consensus reached on this theological question.

Whatever its outcome, the McNally case will be a significant addition to the small number of cases that directly address the relationship between church and State in the Constitution.

If Mr McNally prevails, it will set a limit on the subtle elision of church and State and the favouring of religion. If he loses, the judgment will join those narrowing the scope of the discrimination guarantee as another indication that the State may constitutionally show significant favour to religion, even one particular religion. Mr Justice John McMenamin is expected to give judgment in coming weeks.

-David Kenny is pursuing a PhD at Trinity College Dublin and recently completed a master’s thesis at Harvard University on the place of religion in the Irish Constitution