Probably so unconstitutional that it would not even be a good exam question. It is also an incredible threat to free exercise. Who would want the state telling the church how to run its business?
************************************************* Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) pf...@albanylaw.edu www.paulfinkelman.com ************************************************* ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [layco...@umich.edu] Sent: Tuesday, August 04, 2009 8:48 PM To: religionlaw@lists.ucla.edu Subject: Re: Ireland Charities Act 2009: Regulating the Sale of Catholic 'Mass Cards' Unconstitutional. There is an analogous line of US cases on the sale of food labeled as kosher but not kosher in accordance with government standards. All struck down. If there's a fraud problem, the government can require the label to say who certified the food as kosher. That is a question that can be answered in this world. But government can't decide for itself what counts as kosher, or designate a particular rabbi or association as the only approved certifying agent. The sale of Mass cards sounds like the same problem. The state could require disclosure of who authorized the Mass card. Or a disclosure of whether and how the priest who signed the Mass card will be informed of the sale and of who purchased the card. Those are verifiable facts. But the state can't decide that only a bishop or a head of an order can authorize the sale of Mass cards. That's a matter of internal church governance. Quoting Mairead Enright <maireadenri...@gmail.com>: > Dear All, > A colleague and I hoping to write a short article on s. 99 of the Irish > Charities Act, 2009 ( > http://www.oireachtas.ie/documents/bills28/acts/2009/a0609.pdf). The > section regulates the sale of Catholic Mass cards. A Mass card is a greeting > card given to someone to let them know that they, or a deceased loved-one, > will be remembered and prayed for by a priest during a Catholic Mass. The > person who purchases the card makes a donation to the church in exchange for > the Mass and Mass cards are a significant source of revenue to Irish > churches. Ordinarily, the card is signed by the priest who will say the > Mass, at the time that the Mass is requested. However, in recent years, > controversy has arisen regarding the sale of pre-signed Mass cards in > ordinary shops ( > http://www.irishtimes.com/newspaper/weekend/2009/0307/1224242428583.html). > Section 99 of the new Charities Act provides that a person who sells a Mass > card ?other than pursuant to arrangement with a recognised person? is guilty > of a criminal offence. A ?recognised person? is defined as a bishop of the > church, or the head of an order recognised by it. In any proceedings it will > be presumed, unless proved to the contrary, that an offence has been > committed. > > We were wondering whether one of the subscribers to this list might be > willing - for fun - to venture an opinion on what the position of this > section might be under U.S. constitutional law. Information on analogous > U.S. cases would also be useful. A former Irish Attorney General has > suggested that the legislation falls foul of the Irish constitution because > (1) it is disproportionate to the aim sought to be achieved and (2) it > represents > a serious interference with the religious practice of some priests and > others who are members of non-Catholic churches. > > The relevant section reads: > > 99.?(1) A person who sells a Mass card other than pursuant to an > arrangement with a recognised person shall be guilty of an offence > > (2) In proceedings for an offence under this section it shall be > presumed, until the contrary is proved on the balance of probabilities, > that the sale of the Mass card to which the alleged offence relates > was not done pursuant to an arrangement with a recognised person. > > (3) In this section? > ?Church? means the Holy Catholic Apostolic and Roman Church; > ?Mass card? means a card or other printed material that indicates, or > purports to indicate, that the Holy Sacrifice of the Mass (howsoever > described) will be offered for? > (a) the intentions specified therein, or > (b) such intentions as will include the intentions specified > therein; > ?priest? means a priest ordained according to the rites of the Church; > ?recognised person? means? > > (a) a bishop of the Church, or > (b) a provincial of an order of priests established under the > authority of, and recognised by, the Church; > ?sell? includes, in relation to a Mass card, offer or expose the card > for sale or invite the making by a person of an offer to purchase > the card. > > > Many thanks, > > Mairead Enright. > > -- > Máiréad Enright > IRCHSS Scholar in Gender and the Law 2007-2010 > NUI EJ Phelan Fellow in International Law 2008-2010 > c/o School of Law, University College Cork, Ireland > http://ucc.academia.edu/MaireadEnright > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
