Sorry, my earlier post was not clear - by "Church" in quotation marks I meant the defined term in the statute, not the word "Church" on the card. I agree completely with Doug and Marc. My point was only that if the Mass card said e.g. that a mass had been arranged to be said in a Roman Catholic church under the authority of Diarmuid Martin, Roman Catholic Archbishop of Dublin, then it would be fraudulent to sell a card where that act had in fact not been arranged. I think that would be a secular fact that a court could decide or not decide, and adjusting the proposed law in that way would render it constitutional under US law.
But I think there is a far easier solution - if this really is a widespread problem, the RC Church in Ireland should just require all mass cards issued by it to bear the Catholic equivalent of a hechsher. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Thursday, August 06, 2009 10:04 AM To: Law & Religion issues for Law Academics Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass Cards' Does not US v Ballard (US 1944) state the applicable rule-which is (unsurprisingly) the rule Doug proposed? Marc Stern ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, August 04, 2009 10:30 PM To: religionlaw@lists.ucla.edu Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass Cards' Both these and the kosher laws address a species of fraud. But the fraud must be defined in a way that does not require a) government resolution of a religious question, or b) government designation of a preferred authority to resolve the religious question or act for the religion. The fact that is mispresented must be a secular fact, verifiable as true or false in this world. Quoting Eric Rassbach <erassb...@becketfund.org>: > > What if the law specified that the "Holy Sacrifice of the Mass" was > purported to be a "Mass" intended to be celebrated in the "Church"? > Would not then the offence simply be a species of fraud, i.e. the > shop claimed to be selling the right to have a "Mass" offered in the > "Church" but it was instead not to be offered in the "Church"? And > would Irish law already ban such fraudulent activity, thereby > rendering the law superfluous? > > None of this would affect Art's separate point about the > unconstitutionality of the apparent presumption of guilt. > > I must say that there seems to be a bit of trend in Ireland right now > with legislation that purports to protect religious freedom but > actually harms it (cf. the recent blasphemy law, which surely > violates the ECHR). > > Eric > > PS Máiréad -- as you can see, the members of this list will opine on > this sort of thing "for fun" -- and for free -- with very little > provocation! > > > > ________________________________________ > 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. > > > 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.
