Mass card law challenge lostThursday 17 December 2009 22.13
A constitutional challenge to a provision of the Charities Act that outlaws the sale of Mass cards without an arrangement with the Catholic Church has been lost.
The case was taken by the owner of one of the country's largest commercial Mass card sellers - Thomas McNally of MCC in Longford.
Mr McNally had claimed the act was unconstitutional and unlawfully conferred a monopoly on the sale of Mass cards to clerics of the Catholic Church or to persons approved by them.
Under the Act, which came into force last September, Mass cards can only be sold by agreement with a bishop or provincial of an order of priests of the Catholic Church.
A conviction for selling non-authorised cards carries a ten-year jail sentence or a fine of up to €300,000.
The court heard Mr McNally's business sold 120,000 cards per year and had an agreement with a Polish priest based in the West Indies.
However, he claimed that approval from the bishop in the region was withdrawn after Irish bishops intervened.
The State had argued that regulation contained in the act was essential to prevent the sale of bogus Mass cards.
Lawyers for Mr McNally had argued that the section of the act violated Article 44 of the Constitution which deals with religion. They claimed it infringed the rights of those buying the cards to profess and practise their religion freely.
In his ruling, Mr Justice McMenamin said there was no evidence that in selling pre-signed Mass cards Mr McNally was engaged in the profession or practice of his religion.
He said the sole interest that may be placed at risk is a commercial activity, albeit with a religious dimension, but that was not a practice or belief.
He said the State may justifiably lend its weight to what might possibly be portrayed as a discrimination of status deriving from within Roman Catholicism.
But added that ‘such limited support does not constitute any prejudicial State intrusion or discrimination where the status of a priest or an organised religion is advanced over a lay person or a business’.
Between 2003 and 2007, Mr McNally had entered an arrangement with a Malawi-based priest Fr Oscar Mkondana, who it transpired had been suspended from all facilities of the priesthood by his Bishop. Mr McNally had claimed that Fr Mkondana was able to say mass in private.
More recently Mr McNally, whose business sells more than 120,000 mass cards per year at €1.75 per unit to retailers, had an agreement with a Polish priest based in the West Indies, Fr Bernard Latus, who received €100 to say three masses per month for those for whom the masses are intended.
However, that arrangement was terminated after the proceedings were brought.
In his judgment, Mr Justice McMenamin held that there was ample material to show that certain of MCC's and other businesses activities could mislead ordinary Catholics or purchasers as to the authenticity of their Mass cards and their compliance with canon law.
He described the arrangements made by MCC for celebration of masses as 'surprising', noting that that the €3,600 annual fee paid to a priest in the West Indies for saying masses was 'a tiny fraction' of the €250,000 turnover of the business.