INTRODUCTION
Legislative regulation of religious products illuminates various normative dilemmas surrounding protective state intervention in religious life and ambiguities within the concept of religious freedom itself. Religions, or authorities within religions, may call upon the state to protect the doctrinal authenticity of religious products. However, legislation predicated on doctrinal authenticity risks undermining the religious freedom of those adherents disputing the concept of authenticity upon which it is based – the religious freedom of individual dissenters within the religious community itself, rather than secular ‘hucksters’ or commercial agents. By imposing concepts of doctrinal authenticity, well-meaning religious product authentication laws may also amount to preferential state ‘establishment’ of the dominant viewpoint within the religion in question. These laws tend to occupy an obscure twilight zone straddling the secular purpose of consumer protection and the altogether different concern of doctrinal religious authenticity. Can consumer protection laws account for the dominant view of doctrinal authenticity prevailing among religious consumers, or must they, in order to respect religious freedom, use only secular criteria? This conflict illuminates the ambiguity of the relationship of religious freedom to state neutrality. According to one interpretation, recognition of doctrinal specificity is necessary in order for the state positively to facilitate and protect the adherents of a distinct faith whereas, according to the more liberal narrative, such ‘establishments’ of religious doctrine tend to destroy the state neutrality towards religion that is necessary to ensure equal liberty of conscience for individuals.
While this issue has received comparatively little attention in the United Kingdom, the competing conceptual and normative claims at stake find sharper expression within entrenched constitutional frameworks containing codified constitutional restrictions on the church–state relationship. Comparative constitutional jurisprudence on this point illuminates competing concepts of religious freedom. Broadly speaking, United States constitutional law prevents legislative regulation of religious products based on any recognition of doctrinal religious requirements. In contrast, the Irish Constitution has been interpreted as allowing the state to recognise positively and buttress religious doctrinal requirements. According to this view, religious freedom is respected not through a stance of neutrality with regard to the value or truth of religious doctrine but rather through the positive recognition of and respect for the specificities of particular religious traditions.
THE CONTRASTING SCOPE OF CONSTITUTIONAL SECULARISM IN THE UNITED STATES AND IRELAND
The constitutions of both the United States and Ireland contain distinctive textual and doctrinal restraints on the church–state relationship. A shared characteristic of each constitution is the provision for distinct rules governing church–state separation, in addition to conceptually separate provisions for religious freedom. Thus, under each model, state action touching upon religion, which does not impinge upon religious freedom per se, may nonetheless be unconstitutional. This marks each apart from other rights instruments, such as the European Convention on Human Rights, that contain no direct restraint on the church–state relationshipFootnote 1 – as was strongly evident in the recent Grand Chamber ruling on classroom crucifixes in Lautsi v Italy,Footnote 2 with Judge Bonnello baldly asserting: ‘freedom of religion is not the separation of Church and State’.Footnote 3 This suggests that each incorporates a broader set of values, based on an ideal of state neutrality towards religion, extending beyond freedom of religion in the narrow sense. In contrast to the UK position, the state–religion relationship is checked by entrenched constitutional norms extending beyond the consensually cardinal stricture of freedom of religion itself, in particular incorporating freestanding norms of neutrality. However, the relationship between constitutional secularism and religious freedom has been conceived quite differently in each jurisdiction – partly as an expression of the very different ethos of each constitutional framework and of the contrasting historical experiences in the light of which each model was conceived and developed.
Neutrality towards religion in the constitutional jurisprudence of the United States
The First Amendment to the United States Constitution simply provides: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. However, this ostensibly broad formulation has, through a history of rather activist judgments, given rise to a broad set of specific and far-reaching doctrinal restraints on the church–state relationship. These were influenced by the historical understandings of the constitutional ‘framers’ and by the political philosophy underpinning the provisions – particularly the Jeffersonian aversion to the ‘ecclesiastical depredations and incursions’Footnote 4 associated with establishment.
The establishment clause, as well as the free exercise clause, initially applied to the federal government only, but were ‘incorporated’ or applied to the states by the Supreme Court via the Fourteenth Amendment.Footnote 5 This effectively re-cast the church–state relationship in the United States in the post-war period, having particularly far-reaching consequences in the sphere of public education, where prayer and devotional exercises were excluded from public schools, along with most forms of direct state aid to ‘sectarian’ private schools. What is striking about the jurisprudence on the ‘religion clauses’ is that, while the ‘establishment clause’ has been conceived as conceptually distinct from the ‘free exercise’ guarantee, it has been interpreted and expounded through a rights-based rationale, under which the deeper ethos and purpose of the provision has been assumed as lying in the view that equal religious liberty not only precludes any coercive restraints on religion in the narrow sense but also embraces a broader freedom from the exclusionary burdens and disabilities that result from state largesse towards favoured denominations. Thus, as Greenawalt observes: ‘an ideal of nonestablishment relates closely to a belief in free exercise’.Footnote 6 The establishment clause jurisprudence has closely expressed the view, formulated in Everson v Board of Education, that the ‘“establishment” and “free exercise” were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom’.Footnote 7 Religious liberty was not the sole rationale for anti-establishment; it was also motivated by a protestant fear that establishment would corrupt religion,Footnote 8 and by the Jeffersonian view that a ‘Wall of Separation’ between church and state was necessary to guard the state itself ‘against ecclesiastical depredations and incursions’.Footnote 9 However, the dominant justification sought to protect religious liberty by ending ‘proscriptions and prescriptions of religion by government’.Footnote 10 Thus, the rationale for non-establishment lay in ‘foreclosing government from coercively prescribing mandatory forms of religious belief, doctrine and practice’,Footnote 11 although the establishment clause may apply to state actions that do not coerce participation in religion.Footnote 12 In prohibiting laws ‘respecting an establishment of religion’, the establishment clause goes beyond prohibiting the outright state establishment of a single religion in the limited sense of the historical European establishments of official churches.Footnote 13 Thus, it incorporated a broader set of values by the light of which it has subsequently been expounded – being ‘broadly defined as a general guarantee of religious equality, liberty of conscience, and separation of church and state’.Footnote 14 Jefferson and Paine were influenced by Locke's contractarian theory in arguing that establishments of religion produced ‘corrupt abridgments of the liberty of conscience’.Footnote 15 Jefferson believed that ‘only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views’,Footnote 16 separation being essential ‘to restore man to all his natural rights’Footnote 17 – echoing Locke's view that ‘the care of souls cannot belong to the civil magistrate’.Footnote 18 Thus, the jurisprudence of the United States Supreme Court has strongly endorsed this view of religious freedom and church–state separation as being conceptually and normatively interdependent – as reflected in particular in the prevailing understanding of non-establishment as necessary to religious freedom in the public education context.Footnote 19
Religion in the Irish Constitution
The Irish Constitution provides a set of comparatively specific and ostensibly extensive restraints on the church–state relationship. Article 44 of the Constitution guarantees the ‘free practice and profession of religion’ and ‘freedom of conscience’, subject only to ‘public order and morality’;Footnote 20 it prohibits the imposition of any ‘disability and discrimination’ on grounds of ‘religious profession, belief or status’;Footnote 21 it protects the autonomy and property rights of religious bodies;Footnote 22 it requires that denominational schools in receipt of public funding must allow non-coreligionists to withdraw from religious instruction classes;Footnote 23 and it prohibits any discrimination in state funding for denominational schools.Footnote 24 It also encompasses a freestanding principle of church–state separation, of sorts, providing that ‘the State guarantees not to endow any religion’.Footnote 25 Article 44 has also been held implicitly to prohibit any state ‘establishment’ of religion,Footnote 26 although this refers to a narrower meaning of ‘establishment’ than that prohibited in United States law. When enacted in 1937, the Constitution initially recognised ‘the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens’.Footnote 27 However, also recognised were the protestant churches, the Jewish congregation and other religions existing in Ireland at the time,Footnote 28 although the ‘special position’ clause was abolished by referendum in 1972. The current text reflects the constitutional framers' successful resistance to contemporaneous pressures to establish the Roman Catholic Church formally. It has even been characterised as a ‘skilful endorsement of religious pluralism’,Footnote 29 and as reflecting a philosophy of nineteenth-century liberalism.Footnote 30
Yet despite these ostensibly more specific requirements it is hardly surprising that, given the historically close relationship of church and state in independent Ireland,Footnote 31 the scope of an already limited constitutional secularism has been tightly circumscribed in its interpretation – given the very different context of its enactment in relation to its United States equivalent, the more conservative ethos underpinning the Constitution as a whole and, indeed, a sometimes rather narrow judicial interpretation of the Article 44 provisions.Footnote 32 The broadly liberal tenor of the rights guarantees is attenuated by a number of rather bellicose affirmations of the respect and deference generally owed to religion by the state. The preamble links national identity to religious identity, invoking ‘the Most Holy Trinity’ and acknowledging ‘our obligations to our Divine Lord, Jesus Christ’, while Article 44 opens with an anachronistic affirmation that ‘the homage of public worship is due to Almighty God’.Footnote 33 Religion, in a broadly non-sectarian sense, was recognised as a public good, which the state is bound, by Article 44.1 to ‘honour and respect’. Thus the Constitution did not prevent the development of a sometimes notoriously close relationship between church and state in practice.Footnote 34 For example, in contrast to the United States jurisprudence, the Irish Constitution explicitly foresees a heavily denominational public education system;Footnote 35 it did not prevent the Catholic Church from ‘carv[ing] out for itself a more extensive control over education … than in any other country in the world’.Footnote 36 The prohibition on religious ‘endowment’ has been interpreted restrictively, as allowing state aid for religious education in particular,Footnote 37 in contrast to the United States decisions that have interpreted the establishment clause as precluding most forms of direct aid.Footnote 38 In Campaign to Separate Church and State Ltd v Minister for Education, in which the Supreme Court upheld the constitutionality of state-funded chaplaincies in state schools, Keane J interpreted Article 44 as recognising that ‘religion plays an important part in Irish life … [given] the importance of the part played by religion in the lives of so many people’.Footnote 39 The ostensibly broad scope of the textual provisions has been stymied by the broader constitutional context and ethos, in the light of which they have been interpreted. In particular, as illustrated below, this constitutional ethos resists any liberal abstraction of religious freedom from the determinate religious traditions of the people.Footnote 40
REGULATING RELIGIOUS PRODUCTS UNDER THE UNITED STATES ESTABLISHMENT CLAUSE
The establishment clause has entailed a range of extensive restrictions on states' legislative regulation of religious products. Litigation has arisen most frequently in relation to laws regulating the sale of kosher products.Footnote 41 The higher price that kosher products typically attract has incentivised sellers to market and label products falsely as such.Footnote 42 This has prompted several state legislatures to regulate their sale, sometimes on the basis of orthodox religious standards – testing the boundary between the secular interest of consumer protection and the state enforcement of doctrinal views. The chief difficulty arises in that orthodox, reformed and conservative branches of Judaism embrace differing interpretations of kosher. As Greenawalt notes: ‘the laws, which penalize fraud in the labelling of products as kosher, serve the secular interest in preventing deception of consumers [but also] force the state to decide when religious regulations have been violated’.Footnote 43 Such laws have therefore proved problematic from the standpoint of the establishment clause imperative of state neutrality towards religious doctrine.Footnote 44 The broad requirement of neutrality has found expression in the ‘non-endorsement’ doctrine, which prohibits state action reasonably perceived as endorsing sectarian viewpoints, and therefore militates against legislative or administrative recognition of doctrinal standards.Footnote 45 More salient, the three-pronged test formulated in Lemon v Kurtzman requires that state action must have a ‘secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, [and] the statute must not foster an excessive government entanglement with religion’.Footnote 46 While kosher regulation laws may pursue a legitimate ‘secular purpose’ of consumer protection – thus satisfying one of the three Lemon requirementsFootnote 47 – the use of specifically religious criteria to delimit legally the marketing of products as kosher may implicate the state in determining criteria of religious orthodoxy or authenticity. Its preference between competing doctrinal interpretations of religious obligation may be tantamount to preferential endorsement of competing religious beliefs. This contravenes the establishment clause standards described above, because the state is posited as an arbiter of the authentic doctrines and structures of a religion. Thus, it has been observed: ‘Neither executive government agencies nor courts may resolve debated issues of church doctrine and practice, deciding that some conform with a tradition and that others do not.’Footnote 48
Consequently, certain kosher authentication laws have been struck down under the establishment clause. The New York law invalidated in Commack Self-service Kosher Meats v Weirs Footnote 49 ‘served as a model for other states’.Footnote 50 It provided that a person ‘who, with intent to defraud, sells … food [that he] falsely represents … to be kosher’Footnote 51 is guilty of a misdemeanour. Fatally, ‘kosher’ was defined with reference to ‘orthodox Hebrew religious requirements’.Footnote 52 The establishment clause was interpreted as prohibiting any state enforcement of religious doctrine, any delegation of civil authority to religions and any measures whose administration would entail the ‘excessive entanglement’Footnote 53 of state and religion. Specifically religious criteria in legislation, such as ‘kosher’, would require the courts to interpret the meaning of such religious concepts in the application of the law, and potentially require them to choose between competing doctrinal interpretations. Previously, it was held (in Cabinet v Shapiro Footnote 54) that the courts could not constitutionally determine what constituted ‘kosher’, or determine legal rights where this required adjudication or interpretation of Jewish law. Thus the unconstitutionality of doctrinally based religious product authentication laws has been based primarily on the Lemon test, which, as outlined, requires state action to have a primarily ‘secular purpose’ test, to have a ‘primary effect’ of neither advancing nor inhibiting religion, and to avoid ‘excessive entanglement’ of state and religion.Footnote 55
The New Jersey Supreme Court held, in Ran-Dav's County Kosher v State of New Jersey, that a provision similar to the New York law would ‘impose and enforce [the state's] own interpretation of Orthodox Jewish Doctrine’, and highlighted disagreements between branches of Judaism surrounding kosher rules.Footnote 56 Similarly, in Barghout v Bureau of Kosher Meat and Food Control, the first federal judgment on kosher authentication laws, the Court of Appeals held a Baltimore law on kosher sale unconstitutional because it ‘expressed an impermissible intrafaith denominational preference for Orthodox Judaism’.Footnote 57 As Rosenthal notes, the law was depicted as ‘an endorsement of Orthodox Judaism that would lead to excessive entanglement between church and state’.Footnote 58 Kosher authentication laws have also been invalidated because of their failure to exclude from their scope those who sincerely believed that a product was genuinely kosher.Footnote 59 More recently, Georgia repealed its Kosher Food Labelling Act, which had provided that kosher-marketed foods would have to meet the ‘Orthodox Hebrew religious rules and requirements’. It was withdrawn under the threat of an ACLU lawsuit, with the group criticizing the measure as ‘delegitimiz[ing] alternative interpretations of kosher adhered to in other Jewish communities’.Footnote 60
Since the establishment clause prohibits legislative criteria reflecting doctrinal requirements, kosher rules have been sanctioned on a largely private basis in the United States, through inspection by a private Jewish body that places a recognisable symbol on approved products.Footnote 61 It may also be noted that the European Court of Human Rights has taken a less stringent approach to state policies recognising doctrinal authorities within religions. In Cha'are Shalom ve Tsedek v France,Footnote 62 it upheld a French policy of restricting exemptions from animal cruelty laws, for the purpose of ritual Jewish slaughter, to a licensed association that was regarded as ‘representative’ of the vast majority within the Jewish community. Although the applicant association represented a stricter doctrinal view with regard to ritual slaughter requirements (requiring glatt) meat, the Court found that the Convention guarantee of freedom of religion had not been violated because the non-recognition of the association did not prevent Jews from accessing meat slaughtered according to the required standards. Thus, in contrast to the establishment clause jurisprudence, religious freedom was given a narrower conceptual scope, in that it did not incorporate a broader requirement of neutrality as such, again echoing the recent Lautsi judgment on school crucifixes.Footnote 63
IRELAND'S MASS CARDS LAW: PROTECTING DOCTRINAL AUTHENTICITY
In contrast to the establishment clause standards, Irish constitutional jurisprudence appears to permit legislative recognition of doctrinal standards of authenticity. What is curious about the recent legislation discussed in this section is that the historically close church–state relationship in independent Ireland typically had a very informal basis. While catholic concerns historically fashioned the scope of laws that nonetheless remained denominationally neutral in formal terms,Footnote 64 the internal lives of religions themselves have remained remarkably free of any civil regulation, whether benign, supportive or otherwise. Certainly, doctrinal requirements were never given legislative sanction through any particular schemes of regulation attuned to denominations' internal needs. Nor, despite a great degree of entanglement of political and religious authority, did the state ever formally delegate any civil or legislative authority to the Roman Catholic Church specifically to license any activity, whether secular or religious. It is noteworthy in itself that it is only in a more secularised eraFootnote 65 and during a period of crisis and decline for the dominant religion that the state undertook to legislate specifically for one of the Church's internal functions by regulating the sale of a catholic religious product.
In response to concerns surrounding the sale of fraudulent or inauthentic ‘Mass cards’, the Charities Act 2009 created an offence of selling a Mass card ‘other than pursuant to an arrangement with a recognised person’. ‘Recognised persons’ are defined as a bishop or the provincial of an order of priests recognised by the ‘Holy Catholic Apostolic and Roman Church’.Footnote 66 A ‘Mass card’ forms the basis of a Catholic religious practice that consists of the sending of a card to a bereaved person or family for a special intention, typically indicating that a Mass will be offered in memory of a deceased relative of the recipient.Footnote 67 It is signed by a priest to indicate that a Mass will be celebrated for this special intention. The Act places the onus on the seller to demonstrate approval by a ‘recognised person’. The sale of a Mass card that is not the subject of an arrangement with a ‘recognised person’ will therefore constitute an offence irrespective of any religious character of the sale. This was enacted in response to concerns surrounding ‘pre-signed’, or unauthorised, commercial Mass cards, in consideration for which no Mass was specifically said, or arranged to be said. The responsible Minister stated: ‘[it is my intention] to ensure that people's good faith is not taken advantage of’,Footnote 68 and that buyers ‘should have no doubt that a Mass will be offered’.Footnote 69 Thus, to remedy an ostensibly consumer problem, the Act essentially empowers clerical authorities to license a religious product's sale.
However, it goes beyond the realm of consumer protection. Certainly, it catches the fraudulent sale of Mass cards that claim to offer a service – the saying of a Mass – that is not actually provided, or which falsely purport to be signed by a priest. The legislature self-evidently enjoys the constitutional competence to protect religious products consumers against fraud, and commercial retailers of Mass cards are neither engaged in religious practice nor protected by religious freedom. However, the provision does not restrain the sale of Mass cards merely with reference to the truth or falsehood of the description of the product in its quality and nature. If that were the case, it would merely prohibit the sale of cards claiming to have arranged to have a Mass celebrated where no such arrangement existed, or where falsely purporting to be signed by a priest. Instead, it empowers the named clerical authorities to delimit the legal sale of Mass cards through a discretionary licensing scheme.
Therefore, since the sale of Mass cards is restricted with reference to religious, doctrinal criteria of authenticity, the law also potentially catches the sale of Mass cards that are bona fide religious in character – that is, that do arrange to have a Mass said in consideration for the sale of the card – but that are not subject to approval by the ‘recognised persons’. Thus it enforces a doctrinal conception of which clerical positions are competent with respect to the regulation of a particular religious function, legally buttressing the internal distribution of clerical authority within the religion (in this sense, it is not conceptually dissimilar to the French regulatory scheme upheld by the ECHR in the aforementioned Cha'are Shalom case).Footnote 70 This potentially undermines the religious freedom of dissenting or renegade adherents, whether clerical or otherwise, to engage in unorthodox forms of this practice. The performance of potentially bona fide religious acts is made subject to license by clerical authorities, who may apparently use any criteria they please. The Act potentially criminalises the hypothetical renegade priest who wished to supply Mass cards, in consideration for saying Mass, without the approval of any bishop or provincial of an order of priests. Moreover, independently of the religious freedom issue, it raises questions in relation to the state endorsement or ‘establishment’ of particular doctrinal standards.Footnote 71 It cannot be regarded as an ordinary consumer protection measure because the standard according to which it protects is based neither on a requirement of good faith nor on one of accuracy in relation to the factual basis for the marketing of a product as religious, but rather on an unmistakeably doctrinal definition of authenticity, explicable only in relation to religious belief or doctrine, rather than any doctrinally neutral, generally applicable legal standard that could be accepted and adjudicated independently of any such doctrine.
The applicable constitutional principles are Article 44.2.1°, which guarantees ‘freedom of conscience’ along with the ‘free practice and profession of religion’, and Article 44.2.3°, which prevents the state from imposing any ‘disability [or] discrimination on the ground of religious profession, belief or status’. Additionally, Article 44.2.5° protects denominational autonomy, setting out that ‘[e]very religious denomination shall have the right to manage its own affairs …’Footnote 72 On the face of it, these provisions, taken together, would appear to invalidate legislation determining criminal sanctions on the basis of religious criteria, or delegating to clerical bodies any licensing powers over religious activities or functions. Accordingly, in McNally v Ireland,Footnote 73 a commercial Mass cards retailer challenged the Mass cards law as unconstitutional.Footnote 74 While an exhaustive analysis of the ruling from the internal perspective of Irish law is beyond the scope of this article,Footnote 75 I outline its main contours as being illustrative of a peculiar concept of religious freedom contained in Irish law.
Freedom of religious practice and legislative authentication of religious products
As outlined, the law may criminalise genuinely religious acts, because the sale of a Mass card is prohibited unless approved by one of the clerical authorities named in the Act.Footnote 76 This would appear to violate the ‘free profession and practice of religion’ protected by Article 44.2.1°. Since the sale of the card is ancillary to the celebration of Mass, the restriction on its sale constitutes an indirect restraint on religious practice. However, MacMenamin J rejected this, stating: ‘there was, and is no identified religious group or denomination which seeks to engage in a practice which could be criminalised by the section’.Footnote 77 Curiously, he referred to the requirement of demonstrating an ‘arrangement’ with a bishop or provincial as a matter of ‘simple evidential proof’.Footnote 78 However, this constructs the category of activities protected by constitutional religious freedom in a markedly narrow way, overlooking those denied permission by the named authorities. A former Attorney-General thus suggested: ‘the criminalisation of the sale of Mass cards by those outside the categories of recognised persons will involve the State in [restricting] the practice of religion [contrary to] Article 44’.Footnote 79 In additional to the hypothetical renegade priest, he highlighted another problematic category: ‘persons seeking to buy Mass cards for the purpose of professing their religion’ who ‘will not be able to acquire Mass cards other than those made available pursuant to an arrangement with a bishop or provincial’.Footnote 80 As developed further below, the High Court's failure to account for the plurality and conflict of claims, even within a religion such as Roman Catholicism, is rooted in a peculiarly narrow, essentialist and deterministic concept of religious freedom. In some ways, it echoes the French restriction of ritual slaughter licensing, in Cha'are Shalom, to the dominant Jewish association deemed ‘representative’ of that community.
Thus, it was held that the impugned provision related to ‘public order’ and therefore did not engage the religious freedom rights of the plaintiff, a retailer – nor of any other party. Although the constitutional guarantee is qualified with reference to a ‘public order and morality’ proviso, this aspect of the ruling is profoundly unsatisfactory, as it is unclear how ‘public order’ – a rather undeveloped concept in case lawFootnote 81 – necessitates restricting the sale of Mass cards to those approved by the named clerical authorities, as opposed to those whose description is factually accurate in secular terms. The law is not satisfied where the celebration of a Mass has actually been arranged in consideration for the sale of a card, giving the transaction a sincerely religious character – this arrangement must also be approved by one of the higher clerical figures named in the Act. This seems to conflate the secular interest of public order with a rather broader and inchoate concern to ensure the doctrinal authenticity of religious products. Previously, in Corway v Independent Newspapers, the Supreme Court specifically juxtaposed public order and religious truth, declaring: ‘the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality.’Footnote 82
Of course, the secular interest of consumer protection may arguably coincide with consumers' doctrinally informed expectation as to the authenticity of certain religious products, but constitutional religious freedom would appear to exclude any sanction of this expectation that would criminalise sincerely religious acts. Indeed, in addition to specific regulatory schemes for religious products, further unexplored possibilities lie in the application of ‘neutral’ consumer law to religious products, where secular concepts such as misdescription might overlap with religious criteria, given the potential intertwinement of social understandings about the nature of products with religiously informed expectations. In the UK, the Consumer Protection from Unfair Trading Regulations 2008 defines a commercial practice as a ‘misleading practice’ where ‘it contains false information … or its overall presentation in any way deceives or is likely to deceive the average consumer’ in relation to matters including ‘the nature or existence of the product’ or its ‘main characteristics’.Footnote 83 The equivalent Irish legislation contains very similar provisions. Constitutional strictures and specific regulatory schemes aside, fascinating unexplored avenues include consideration of how the 2008 regulations in the UK might apply to doctrinally inauthentic Mass cards, and how ordinary consumer measures might have applied in Ireland,Footnote 84 without similar constitutional issues arising in the judicial interpretation of ordinary consumer law in its application to Mass cards.
Returning to the Mass cards law, neither the bona fide religious character of a Mass card nor the actual existence of an arrangement to have a Mass said may constitute a defence to a prosecution.Footnote 85 The burden of proof that the Act places on the sellerFootnote 86 may be discharged only by proving an arrangement with a ‘recognised person’, rather than by demonstrating a sincere belief that the Mass card was a bona fide religious one. For example, a retailer who made a sincere arrangement with an ordinary priest, rather than one of the higher clerical positions ‘recognised’ by the Act, would have no defence. While not being exposed to prosecution, the priest whose agent retailer was prosecuted would be indirectly prevented from celebrating Mass in consideration for the sale of cards. It is even possible that a priest who directly sold a card without approval by a bishop or provincial would be liable to prosecution. Therefore this licensing scheme restrains an indeterminate range of potentially religious acts. Yet, whereas in the United States it has been held that ‘it is unconstitutional for the state to convict those who follow widespread Conservative [rather than Orthodox] understandings of kosher observance’,Footnote 87 the Irish High Court implicitly refused to hold that the Constitution similarly precluded the conviction of those selling a bona fide religious product pursuant to an sincere arrangement with a cleric whom they believed competent in this respect. This is analogous in some ways to the French policy upheld in Cha'are Shalom, in that Jewish ritual slaughter was legally permitted only when carried out by an association recognised by the state, rather than by persons acting on sincere religious convictions.
This apparent constitutional impropriety appears to be compounded both by the legislature's designation of the clerical authorities deemed sovereign over this particular religious function and by their empowerment with statutory licensing power. This vests them with authority to supervise the performance of religious functions by lower clerical positions within that denomination, as well as licensing secular retailers.Footnote 88 Needless to say, this is a rather eccentric form of the statutory licensing scheme so typical of the dirigiste state. Legislation typically delegates, either to lower courts or specialised agencies, the power to authorise and regulate activities deemed potentially harmful to the public, within the limits of statutory vires.Footnote 89 However, the delegation of statutory licensing authority to religious authorities, in respect of religious functions, is wholly unprecedented. First, the authorities to whom the licensing power is delegated are wholly non-public in nature, in contrast to, for example, the District Court or a statutory agency. Second, the discretion accorded to the ‘licensing’ authorities appears to be unfettered by any constraining vires, by criteria whether in primary or secondary legislation. It is difficult to envisage any possibility of judicial review of the exercise of this power, given the religious character of the adjudication exercised; the power conferred is breathtakingly arbitrary. Third, there is no grant of a ‘licence’ as such that permits the holder to engage in an otherwise prohibited activity for a determinate period, such as a broadcasting or liquor licence, but, instead, the requirement of licensing through ‘arrangement’, for the sale of Mass cards, on an ongoing basis, with apparent scope for discretionary withdrawal of this permission at any point. Thus, the ‘licence’ is indeterminate and unstable in its terms. Fourth, as already explored, the concept of harm that the scheme apprehends is rather novel, being predicated on doctrinal authenticity rather than public order.
It might appear that the constitutional freedoms of religion and conscience, in particular, would preclude either religious or secular activities from being subject to statutory licensing by religious authorities. The McNally court's validation of a clerical licensing scheme for religious products contrasts with the ruling of the United States Supreme Court in Larkin v Grendel's Den.Footnote 90 The Supreme Court held that Massachusetts unconstitutionally delegated civil power to religious authorities by preventing local authorities from issuing liquor licences to premises within 500 feet of churches that objected in writing. Under the establishment clause, government could devolve no such ‘veto’ power to religious authority. It cited a previous ruling that held that ‘the structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference’.Footnote 91 It was impermissible that the civil authority delegated to religious bodies ‘could be employed for explicitly religious goals’, given that the statute could not ensure that ‘churches’ power [would] be used in a religiously neutral way'.Footnote 92 This objection evidently applies to the licensing power delegated to bishops and provincials in Ireland, being vested for the purpose of assuring doctrinal authenticity. The inevitability of intra-faith discrimination within such licensing schemes was outlined in Barghout: ‘Conservative or Reform Jews might well object to the status conferred on Orthodox Jews, for the ordinance identifies … Orthodox Judaism as the recipient of civil authority for interpreting and applying the kosher standard.’Footnote 93 The objection to civil licensing power vested in favoured sects equally applies to that vested, in Ireland, in clerical offices of different status.
A notable feature of McNally was the rejection of comparative reference to United States First Amendment jurisprudence. It was held that United States authorities were of limited value in interpreting Article 44 of the Irish Constitution, given the fact that the Irish Constitution acknowledges ‘a monotheistic Christian ethos’,Footnote 94 and that, whereas ‘in United States jurisprudence there is a wall of separation … under the Constitution of Ireland there is a constitutional “domain” of religious recognition’.Footnote 95 The declaration of such a ‘domain of recognition’ was curious, since all reference to specific denominations was deleted through the Fifth Amendment of the Constitution in 1973.Footnote 96 The Court concluded that the Constitution allows the legislature to ‘recognise and buttress the tenets of a particular religion, insofar as it does not in any way impinge on the beliefs of other denominations or citizens’.Footnote 97 However, this outcome rested, I argue, on an implausibly narrow conception of what these ‘rights of others’ are, as developed below. Echoing the European Court of Human Rights rulings in Cha'are Shalom and Lautsi, discussed above, this conceptually separates out religious freedom from discriminatory recognition of authorities within religions, by constructing religious freedom in a conceptually narrow way.
In support of its conclusion, the High Court referred to the previous ruling in McGrath and Ó Ruairc v Trustees of Maynooth College.Footnote 98 In that judgment, the Supreme Court rejected a challenge to the dismissal of the plaintiff lecturers (as a result of their laicisation) from teaching posts in the defendant Catholic college, holding that the constitutional prohibition on religious discrimination could not apply to the college, even though state-funded. It restricted the scope of the non-discrimination guarantee because the ‘primary aim’ of Article 44 was ‘to give vitality, independence and freedom to religion’. The court stated:
Far from eschewing the internal disabilities and discriminations which flow from the tenets of a particular religion, the State must on occasion recognise and buttress them … they are part of the texture and essence of the particular religion; so the State … may justifiably lend its weight to what may be thought to be disabilities … deriving from within a particular religion. Footnote 99
Yet, despite MacMenamin J's assertion that ‘the resonance with McGrath is plainly discernible’,Footnote 100 it may be noted that the form of ‘buttress’ or support was very different in the older case – consisting merely of the Court's non-application of constitutional non-discrimination principles to religions' internal organisation. This amounts to the lifting of a regulatory burden, as opposed to the grant of a statutory licensing or veto power to buttress doctrinal orthodoxy, as in McNally.
It might be argued that it would be effectively impossible to protect Mass card consumers without reference to doctrinal standards, given that consumers' expectations are inextricably bound up with these. Developing further the comparison with United States constitutional law, however, it would in fact probably be less problematic to regulate the sale of Mass cards according to ordinary fact-based criteria – rather than belief-based doctrinal religious criteria – in comparison to kosher products. The problem of ‘pre-signed’ Mass cards was cited as the consumer issue that the law addressed,Footnote 101 meaning that cards were not individually signed by priests and that no Mass was, in fact, celebrated specifically in consideration for the sale of the card and the specific intention for which it was purchased. The factual existence of an authentic signature or of an arrangement to have a Mass celebrated could, in principle, be verified without any form of clerical licensing. A regulatory scheme might be confined to ensuring that the purported secular qualities of the product were real. The stated justification for the Mass cards law was the concern to ensure that a priest had signed a card and committed to celebrating a Mass for the intention contained therein – not the violation of an ambiguous, interpretive religious standard such as ‘kosher’. In contrast, the truthfulness of a product's ‘kosher’ label cannot be ascertained with reference to any uncontroversial set of facts but rather requires a common understanding of what ‘kosher’ means, which, in turn, inevitably depends on rabbinical interpretations of scriptural passages.Footnote 102 ‘Kosher’ could not be established in relation to a set of uncontroversial secular criteria that could reasonably be agreed upon; completely adequate regulation would therefore have to pivot upon a commonly agreed definition of kosher.Footnote 103 It is true that there is no central doctrinal authority in Judaism as in Catholicism but, for reasons elaborated below, it would be implausible to discount the possibility of any internal doctrinal disagreement within a given religion, or to essentialise its requirements, for all adherents, on this basis.
Therefore, a curious aspect of McNally was the lack of consideration of less restrictive consumer measures that would avoid reference to controversial religious criteria – for example, by requiring sellers to demonstrate the factual existence of an arrangement with a priest, and ensuring the authenticity of signature. Neither did it consider how ordinary consumer law might be sufficient to prosecute genuinely misleading Mass cards. This undermines the High Court's assertion that it would be impossible to regulate the sale of Mass cards ‘without specific reference to the Roman Catholic Church’.Footnote 104 Thus, a licensing scheme appears disproportionate to the specific aim of consumer protection.Footnote 105 Less restrictive possibilities include the liberal kosher regulations that replaced unconstitutional provisions in New York and New Jersey, which require those selling a product that claims a certain religious character to disclose the basis on which that claim is made.Footnote 106 However, the High Court in McNally baldly asserted that ‘no less intrusive method of proof has been identified’.Footnote 107 Its assertion that any less intrusive method would not be ‘susceptible to verification’Footnote 108 assumes the necessity of belief- or doctrine-based, rather than fact-based, authentication of religious products.
Religious discrimination and legislative regulation of religious practice
Constitutional issues also arise from the law's denominationally specific nature and its discrimination between clerical authorities of different status. Article 44.2.3° provides: ‘the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status’. In a previous ruling,Footnote 109 the Supreme Court interpreted the Constitution as precluding any ‘distinction’ on these grounds – excluding what Casey terms ‘benign as well as adverse discrimination’Footnote 110 – although allowing for exemption of religious groups from generally applicable laws. Since the law accords a licensing power to certain clerical positions only, and therefore uses ‘religious status’ as the criterion for conferring statutory licensing power, it would seem to offend Article 44.2.3°.Footnote 111
However, MacMenamin J held that, notwithstanding Article 44.2.3°, the state may legitimately give effect to the ‘disabilities and discriminations’ arising within particular religions – partly because, as already outlined, Article 44 does not impose the same stringently ‘separationist’ requirements as the United States establishment clause.Footnote 112 Thus, ‘the State may justifiably lend its weight to … a discrimination of status deriving from within Roman Catholicism’.Footnote 113 The ostensibly rigid prohibition on religious discrimination was qualified by the aforementioned constitutional ‘domain of recognition’. For this reason, the prohibition on ‘discrimination’ on grounds of religious ‘status’ was held to exclude distinctions between clerical ranks within the same religion, because these were necessary to respect the internal structure of that religion.Footnote 114 Thus, ‘identification’ of religious office does not ex facie amount to unconstitutional discrimination', this being ‘simple evidential proof’.Footnote 115 A further intimation was that legislative recognition of clerical competencies within a religion could not be constitutionally discriminatory because it represented an objective matter of fact, rather than of religious controversy. The trial judge compared this ‘identification’ with the ‘evidential route by which it is proved that a medical doctor is registered … [which] is not to discriminate in favour of the Medical Council, or of doctors’.Footnote 116 This analogy overlooked the fact that the state is constitutionally precluded from discriminating on grounds of religious status, specifically, rather than professional status more generally. Again, clerical authority is presented as a self-evident, static and objective reality, which the legislature may accordingly enshrine, contrasting with the US Supreme Court's insistence, in the Serbian Orthodox case, that only ‘neutral principles of law’ be applied in adjudication touching on questions of religious interpretation.Footnote 117 This depiction of the conceptual impossibility of internal dissent went beyond France's more pragmatic defence, in the aforementioned Cha'are Shalom case, that the association accorded the monopoly on legal ritual slaughter was ‘representative’ of the Jewish community.Footnote 118
In a previous case, the Supreme Court held that non-discrimination would have to be qualified where necessary to protect freedom of religion, since non-discrimination was itself a mere corollary of that freedom.Footnote 119 This would allow the legislature to create ‘discriminations’ exempting religions from secular laws. On the same basis, legislative ‘discrimination’ within religions might be permissible if necessary to protect religious freedom. In Quinn's Supermarket it said:
… in order to [protect religious freedom], the law may find it necessary to distinguish between ministers of religion or other persons occupying a particular status in religion and the ordinary lay members of that religion or the rest of the population …Footnote 120
However, on its literal terms, this appears to apply not to distinctions between different clerical statuses but rather to distinctions between clerics of whatever status, as a category, and lay persons. The formula typically used in Irish legislation, for exempting religions from civil requirements such as jury service, is typically that of ‘ministers of religion’, with no reference to distinctions between clerics that reflect the internal hierarchy of the religion.Footnote 121 While it is conceivable that protecting denominational autonomy might necessitate distinctions between ‘ministers of religion’ and lay persons, it is difficult to see how it might require legislative distinctions between different clerical statuses – and, moreover, how this could be achieved without the courts or legislature positing themselves as ‘arbiters of religious belief’, a role disavowed by the Supreme Court in Corway v Independent Newspapers. Footnote 122 Furthermore, the Quinn's Supermarket doctrine permits exceptions to the non-discrimination rule only where necessary to protect religious freedom. It is difficult to see how the religious ‘freedom’ of Roman Catholics, anxious to ensure the authenticity of Mass cards from their religious perspective, necessitates legislative discrimination between clerical statuses – unless religious ‘freedom’ is conceived as an unsustainably broad range of interests that believers might have in positive assistance in maintaining the dignity of their rituals. Thus, in the United States context, Greenawalt distinguishes permissible ‘accommodation’ of religion, which ‘must relieve some burden on the exercise of religion’,Footnote 123 from forms of preferential largesse, which ‘involve favouritism of one religious group over another similarly situated religious group’.Footnote 124
The Mass cards law might also be considered discriminatory under Article 44.2.3° in its denominationally specific nature because it protects the religious rituals and practices of a particular denomination, while leaving the authentication of other religions' products to private sanction. Aside from discrimination within Judaism, one of the constitutional concerns surrounding religious product authentication laws in the United States has been that they ‘privilege Judaism over other similarly situated religions’.Footnote 125 Just as ‘Judaism is not the only religion in [the United States] with special dietary requirements’,Footnote 126 Roman Catholicism is not the only religion in Ireland whose religious products may be disputed as doctrinally inauthentic. There are no kosher or halal authentication laws; the Rabbinate Committee of Ireland and the Islamic Foundation of Ireland certify food products as kosher and halal, without any legislative sanction.Footnote 127 Similarly, in the UK, there is a private certification process overseen by the Kashrut division of the Beth Din Court.Footnote 128 In relation to kosher in the United States, Greenawalt points out that
the state could back up private enforcement with damages for trademark infringement or penalties for fraudulent claims of approval … Some matters might be left to private enforcement aided by state penalties when symbols of approving bodies are fraudulently used.Footnote 129
Indeed, it has been observed that ‘perhaps the clearest command of the Establishment Clause is that the state may not benefit one religion over another’.Footnote 130 Ordinary consumer law might potentially apply to halal or kosher products sold in Ireland – although this avenue is unexploredFootnote 131 – but there is no legislative sanction of their authenticity from a specifically doctrinal viewpoint. Thus, similarly situated denominations are less favourably treated.Footnote 132
However, the McNally ruling held: ‘mere description in the legislation of a particular religious denomination … does not amount to an unconstitutional discrimination’,Footnote 133 and pointed out that specific denominations are named in certain other enactments.Footnote 134 Therefore, it denied that the law represented a ‘quasi-establishment’ of the Roman Catholic religion.Footnote 135 However, it is arguable that the implicit constitutional value of securing the ‘independence and vitality’ of religion is in fact best served by precluding any legislative competence to authenticate religious rituals, structures and products, given the danger that such regulatory intertwining of civil and religious power may jeopardise religions' independence. Indeed, it is curious that, given Ireland's notoriously sectarian history, the divisiveness and resentment arising from denominational competition for civil favour or largesse has never been expounded as one of the background values informing the interpretation of the constitutional provisions on religion.Footnote 136 Precluding specific legislative support for denominational needs might foreclose such divisive interdenominational competition for state largesse or support – indeed, United States jurisprudence stresses how even supportive or seemingly benign state intervention in religion, with its in-built incentive for denominational ingratiation to public authorities, might dampen the vitality and independence of religion itself.Footnote 137 In Lemon v Kurtzman, it was held that legislative support for religions would provoke religious ‘divisiveness’ that would harm ‘the normal political process’Footnote 138 as well as jeopardising denominational autonomy.Footnote 139
In Board of Education of Kiryas Joel Village School District v Grumet, the Supreme Court held unconstitutional the creation of a school district that was deliberately drawn to coincide with the boundaries of the orthodox Jewish Satmar community in New York. This represented an unconstitutional delegation of political authority to a religious group. It held that the imperative of neutrality precluded ‘the anomalously case-specific nature of the legislature's exercise of state authority’ – given the denominational specificity of the enactment.Footnote 140 ‘Neutrality’, as the interpretive leitmotif of the religion clauses, accordingly precludes enactments attuned to the needs of specific denominations. The New York statute did not even explicitly name the relevant denomination, making the Mass cards law more ‘anomalously case-specific’. The Court observed that the Satmar community ‘did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law’Footnote 141 – therefore, the Court could ‘have no assurance that the next similarly situated group seeking a school district of its own will receive one … a legislature's failure to enact a special law is itself unreviewable’.Footnote 142 This concern has also been raised in relation to kosher authentication laws, although it has been argued that ‘the issue of underinclusiveness should not arise until the legislature rejects a similar accommodationist measure for a similarly situated group’.Footnote 143
Similarly, in the case of the Mass cards law, the courts cannot extend equal treatment to other religions that might similarly seek legislative ‘buttress’ for their rituals, or review the legislature's failure to enact similar schemes. It is impossible to ascertain whether, if other religions sought special legislative sanction for their products, the legislature would accede to this claim and thus treat them equally to the Roman Catholic denomination. In the United States context, Greenawalt notes that ‘if the only problem is the failure to treat analogous claims similarly, a judicial corrective may take the form of extending the privileges’.Footnote 144 However, this would problematically implicate the courts in determining the appropriate form of support to be extended to other religions.Footnote 145
Thus, constitutional issues are raised by the legislature's sanction of the needs of one denomination while leaving the requirements of others to private and voluntary enforcement. Since it may reasonably be apprehended that other religions, in order to receive similar support, may have to accumulate political capital to receive the favour and grace of political authority – perhaps even to ingratiate themselves to state agendas – the exclusion of any possibility of such discriminatory largesse would support the constitutional guarantee of religious freedom. A legislative competence to ‘buttress’ religious structures and doctrines risks being manipulated and instrumentalised for political ends. The underlying constitutional values that militate against the outright ‘establishment’ of religion also militate against denominationally specific schemes of legislative regulation.Footnote 146
Denominational autonomy and legislative authentication of religious products
The Mass cards law may also offend the constitutional guarantee, in Article 44.2.5°, that ‘every religious denomination shall have the right to manage its own affairs’. This constitutional principle has never formed the basis of a successful challenge. It was considered indirectly, in the McGrath case discussed above, as a justification for disapplying the non-discrimination principle to religious bodies, in view of the overall constitutional value of securing the ‘independence and vitality’ of organised religion.Footnote 147 As described, McNally qualified the scope of the non-discrimination principle partly with reference to denominational autonomy.
However, even where a religion might consent to or request a legislative ‘buttress’ of its rituals or its organisational form, this might constrain its future capacity to develop and revise these. Even leaving aside dissent within religions, the freedom to do so would therefore be subject to legislative permission, dependent on appropriate future enactments. Thus, even benign legislative sanctions of religious structures interfere with denominational autonomy; current organisational structures are, essentially, statutorily enforced. Greenawalt therefore ponders whether ‘kosher laws effectively establish an existing religious view to the exclusion of one that might emerge as religious understandings shift?’Footnote 148 The High Court conceived denominational autonomy differently, being concerned less by the contingency of denominational form, and more, in a rather pragmatist spirit, by the need for the state positively to ensure the integrity of and respect for denominations' determinate identities and structures. It allowed for legislative recognition of contingent denominational needs, to ‘recognise and buttress the tenets of a particular religion’.Footnote 149 This might be supported by an interpretation of religious denominations themselves as rights-bearers, independently of individual adherents: Article 44.2.5° vests the ‘right’ of denominational autonomy in ‘religious denominations’, which might necessitate identification of their determinate structures and doctrines.Footnote 150
Accordingly, the basis for protecting denominational autonomy was implied to be the determinate structures and hierarchies that define religions, as an empirical and social reality, in preference to the more abstracted, separationist conception of non-recognition. Religious freedom is secured instead by recognising and supporting the specificities and social structures of faith. On this view, the state is legally empowered to protect religions' identity, doctrines and rituals, the Constitution allowing legislative intervention that merely reflects the organisational form the religion has itself chosen.Footnote 151
An alternative approach to denominational autonomy might recognise religions' internal structures and doctrines as inescapably contingent and impermanent – as irredeemably controversial in their scope – rather than as essential or objective. On this more liberal reading, legislative authentication of religious products for doctrinal authenticity risks setting the organisational and doctrinal definition of religions in legislative permafrost. A denomination then only enjoys the right to ‘manage its own affairs’ in a rather contingent and precarious way, which presumes that its doctrines and structures are singular, static and consensually agreed upon by all adherents – quite a conjectural leap, given the inevitable scope for dissensus even within historically homogenous religions: religions are not ‘essential, innate or monolithic’.Footnote 152 This applies irrespective of whether religions request or approve such legislation.Footnote 153 The law cannot impose on the group as a whole an organisational definition provided by those within it who are recognised or favoured by civil power, or who are prepared to ingratiate themselves to the end of achieving such recognitionFootnote 154 – a danger of which the United States jurisprudence has been so acutely cognisant.Footnote 155
Thus, behind the McNally court's claim to recognise and buttress the ‘texture’ of the Roman Catholic religion lies a troubling arrogation, to both judiciary and legislature, of the competence to determine indirectly this very ‘texture’ or essence of religions. The state might buttress and re-enforce the dominant strands within religions, and exclude dissenting claims, as in the case of Cha'are Shalom. Even catholicism is not exempt from the ordinary diversity of opinion and conscience. Since it is partly based on religious belief, it is rather optimistic to believe that the identity or hierarchy of any religion may be within the competence of state power to ascertain authoritatively and objectively.Footnote 156 Again, McNally contrasts sharply with the United States Supreme Court's rejection of any legislative or judicial competence to recognise religious doctrine as such. As Esbeck notes, ‘civil authorities must always forego questions which are essentially religious as a matter of noninterference … doctrine, discipline … church polity, internal administration …’.Footnote 157
RELIGIOUS PRODUCT AUTHENTICATION LAWS AS ILLUSTRATIVE OF COMPETING CONCEPTS OF RELIGIOUS FREEDOM
The different jurisprudential approaches to the issue of legislative regulation of religious products discussed thus far are illustrative of deeper differences in the very concept of religious freedom. Much in the same vein as Irish constitutional law, a voluntarist conception underpins the religion clauses of the United States Constitution.Footnote 158 However, the US jurisprudence has interpreted religious freedom in a broader horizon than voluntarist conceptions of non-coercion, extending it to an imperative of adherents' equal standing in the political community. Its close association of religious freedom and religious equality contrasts with the specific juxtaposition of these values in Irish cases such as McGrath and Ó Ruairc. As Witte points out, the religion clauses also preclude ‘more subtle forms of discrimination, prejudice and cajolery by [the] state’.Footnote 159 Therefore, the state cannot lend support to any favoured interpretation of rituals or doctrines as normative or authentic, as this would ‘skew the choice of conscience, encumber the exercise of religion and upset the natural plurality of faiths’.Footnote 160 The Supreme Court noted that ‘when the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain’.Footnote 161 This plainly contrasts with the European Court of Human Rights' conceptual separating out of religious freedom and confessional neutrality in its Lautsi ruling on school crucifixes.Footnote 162
Thus, non-establishment is conceived of as a corollary of religious freedom itself.Footnote 163 Nussbaum, for example, argues that the historical rationale of the clause lies in the assertion of equal status for those upon whose minority beliefs ‘establishment’ would otherwise impose an exclusionary burden.Footnote 164 The ‘endorsement test’, formulated in Lynch v Donnelly, suggests that state endorsement of religion constitutes a ‘message’ of exclusion to non-adherents, who consequently endure a lesser civil standing, being cast as ‘outsiders, not full members of the political community’.Footnote 165 This broad interpretation of the inter-relationship between non-establishment and equal religious liberty clearly informs the jurisprudence on religious product regulation. In expanding the ideal of religious liberty beyond the narrow premise of toleration towards one of equal standing, it contrasts with the Irish jurisprudence's narrower view of religious freedom as circumscribed within the state's definition of the determinate forms and identities of religious life, protecting only the recognised beliefs and requirements of religions. The prevailing conception of religious freedom in the United States, being more closely associated with church–state separation, requires the state to exclude religious objects and criteria from its enactments. Moreover, it merely offers religious adherents the social and political conditions necessary to the free practice of their faith, rather than any positive assistance in its exercise, the demand for which is apprehensively viewed as tending to distribute unequally and provoke civil strife.Footnote 166
McNally casts the Mass cards law as a benign example of religious ‘accommodation’. While the United States Supreme Court has held that the establishment clause allows for ‘accommodationist’ policies towards religion, the type of ‘accommodation’ that it envisages is qualitatively different. Constitutionally valid ‘accommodation’ cannot be based on the recognition and support of the needs of specific religions or doctrines; it must relieve religion of the ‘burden’ of generally applicable regulation, as distinct from ‘official solicitude’ or ‘gratuitous largesse’.Footnote 167 For example, the policy upheld in Zorach v Clauson Footnote 168 ‘released’ public school pupils for religious instruction off-campus. This applied generally as between religions and did not necessitate the legislative codification of any particular religious doctrines or concepts. Thus, religious liberty is ‘committed to the private sphere’,Footnote 169 entrusted for its protection less to state recognition of denominational specificity than to steadfast non-intervention in ‘sectarian’ affairs. Moreover, the Supreme Court has strongly rejected any suggestion that positive support for religions could be constitutionally inoculated by formal neutrality in the administration and conception of schemes of aid. In Lee v Weisman, Justice Souter rejected any idea of meaningfully equal or ‘neutral’ state recognition of religion because it ‘would necessarily compel the government and, inevitably, the courts to make inappropriate judgments about the number of religions the state should sponsor and the relative frequency with which it should sponsor each’.Footnote 170 In an earlier ruling, the Court asserted: ‘the state cannot forbid, neither can it perform or aid in performing the religious function’.Footnote 171 The Supreme Court has denied that the secularity of public schools ‘collides with the majority's right to free exercise of religion’ – contrasting with the idea of a ‘right to denominational education’ in Irish law,Footnote 172 and even certain dicta regarding the crucifix in Lautsi;Footnote 173 similarly, its rejection of the necessity, to religious freedom, of the positive state recognition of religious rituals and products, contrasts with the prevailing perception of the necessity of this link in the Irish jurisprudence.Footnote 174
Through a theoretical lens this prevailing interpretation of the establishment clause – as distinguishing religious freedom rights from any positive social claim to their ‘fair value’ – reveals clear shades of political liberalism. Its sharp distinction between religious liberty and any positive assistance in its exercise echoes Rawls' rejection of the ‘fair value’ of the basic liberties as the political claim to the use of public resources as positive support in the exercise and pursuit of conceptions of the good.Footnote 175 This sharper delineation of the religious freedom rights of individuals, and the qualitatively lesser interests of religions in recognition and support, is translated as a rejection of the claim, implicit in much of the Irish jurisprudence, that the imposition of religious ‘neutrality’ in the public sphere of the state prevents the accommodation of religious practice, and therefore undermines religious freedom. The US Supreme Court asserted:
… we cannot accept that the concept of neutrality, which does not permit a state to require a religious exercise even with the consent of the majority of those affected, collides with the majority's right to free exercise of religion. The Free Exercise Clause … has never meant that a majority could use the machinery of the state to practice its beliefs.Footnote 176
Similarly, the Court's steadfast assertion that ‘the secular public school did not imply indifference to the basic role of religion in the life of the people, nor rejection of religious education as a means of fostering it’Footnote 177 is clearly echoed in the jurisprudence on religious products, expressing, again, the distinction between the freedom and respect due to religion and the necessity or wisdom of protective intervention aimed at giving ‘life’ and effect to this. Indeed, it has been argued that this liberal, separationist concept of religious freedom overlooks the necessarily public element of faith for many, limiting the ‘freedom’ of adherents to project their values in the public sphere, circumscribing the religious freedom of those who do not wish to confine their religious beliefs to a ‘private’ sphere.Footnote 178 It ‘makes the devout feel unwelcome in the public sphere’Footnote 179 or, in Justice Scalia's more robust terms, ‘religion [is not] … some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers, it is not that, and has never been.’Footnote 180 This minority stance, if adopted, would probably tolerate state intervention buttressing religions' doctrinal requirements in such areas as religious product regulation. It echoes a broader, vaguely ‘communitarian’ challenge to ‘liberal’ religious freedom, which denies that the exclusion of religion from the public sphere represents mere ‘neutrality’, and insists that religious freedom must be based not on an abstracted idea of the moral capacities of the atomised subject but on recognition of the determinate, constitutive identities of the citizens.Footnote 181 It charges liberalism with ignoring that, for some, religion is not a detached choice or end to which they freely commit themselves but rather a ‘constitutive’ aspects of their selves.Footnote 182 The retort to this recognition-oriented concept of religious freedom is that it potentially makes individual liberty of conscience contingent upon and vulnerable to the vagaries of a politics of recognition. Liberals will instead seek to formulate a conceptual basis for religious freedom that is freestanding from the requirements of any comprehensive doctrines for which it might be exercised.
This overview of the establishment clause jurisprudence illustrates the contrast between Irish courts' willing reference to doctrinal or clerical authority as a basis for determining the scope and extent of religious liberty, and the treatment of religion in the United States jurisprudence as a solely ‘private’ commitment, beyond the scope of public recognition. In McNally, the court held that the plaintiff, a commercial Mass cards retailer, had no standing for a religious freedom claim but, also, that no hypothetical party could have claimed that the measure violated their religious freedom. It was implied that, since the law prohibits only those Mass cards deemed inauthentic from within the doctrinal Roman Catholic viewpoint, it leaves intact the freedom to engage in any genuinely religious observance. The production and sale of a Mass card deemed doctrinally inauthentic was implied to fall outside all constitutional protection. This concept of religious freedom contrasts with the politically liberal concept prevailing in US jurisprudence, based not on the moral sovereignty of abstracted subjects but on the recognition of group identities defined by the court's interpretation of their religious commonality. More concretely, religious freedom is then cast not as immunity from external interference with activities on the basis of their sincere religious character or motivation, but rather as the freedom to engage in those activities recognised by the state as normative, authentic and binding upon adherents. Since the law merely consecrates the internal power structure of Roman Catholicism it cannot impinge upon the religious freedom of Catholics. Peculiarly, this echoes the discourses presaging France's recent prohibition on face-veiling, which included the rather paradoxical argument (at least, paradoxical in a secular republic) – that burqa-wearing was outside the protection of religious freedom because it was not a recognised doctrinal requirement of Islam.Footnote 183
This group-authenticity approach, exemplified in McNally, overlooks the possibility that religious freedom might be exercised against, as well as within, the prevailing and dominant forms of internal religious life, however these might be defined by the state. Its departure point is the tenets of recognised religions, rather than the autonomy of conscience of the individual adherent, whose claim is validated only by what is recognised as binding or normative from the perspective of his or her own religion. This is reflected in the older case of Quinn's Supermarket v Attorney General. Walsh J heard evidence from the Chief Rabbi of Ireland in ascertaining whether Jewish religious requirements warranted exemption from shop-closing laws. He held that ‘these dietary laws are a binding part of the Jewish religion’ and that ‘if … there is a change in these dietary laws to the extent that they are no longer binding upon members of the Jewish religion … then the position alters and such an exemption might no longer be justifiable’.Footnote 184 This assumes the ascertainability and therefore the determinacy of ‘Jewish’ belief, and therefore implicitly excludes cognisance of internal dissent. Thus, just as the parameters of Jewish citizens' religious freedom were ascertainable with reference to doctrinal authorities within Judaism, it also appears that Catholics' religious freedom might be limited with reference to doctrinal authority.
Thus, the religious freedom of the individual is subsumed within the broader social and political claim of the group to which he or she is designated as belonging, circumscribed within what the state identifies as its commonalities and characteristics. In the terms of John Rawls, this stance fails to recognise the individual adherent as a ‘valid source of self-authenticating claims’.Footnote 185 The recognition-oriented concept of religious freedom might be something of a double-edged sword: while it appears to bolster religious freedom with promises of specific recognition and support of adherents' needs and beliefs, it conversely tends to qualify and circumscribe the scope of religious freedom as a function of what beliefs are recognised as doctrinally binding. This is mirrored, for example, in debates on whether the burqa or the minaret are doctrinal requirements of Islam, which governs – it is assumed – whether they come within the scope of freedom of religion.Footnote 186 The alternative liberal concept of religious freedom would instead protect actions in recognition of the sovereignty of the adherent themselves over what they regard as normative or binding, independently of validation by any external authority.
On the recognition-oriented rationale, the freedom of those within religious communities to challenge the existing, contingent forms of clerical authority is, according to this view, vulnerable to the legislature's competence to give determinate definition to religious organisational forms. This is a specific rendition of a broader underlying current of church–state jurisprudence that suggests that religious liberty is secured through recognition of faiths' embodied and determinate specificities. But its efficacy is circumscribed by inevitable limitations on the instrument of recognition; making religious freedom dependent on doctrinal recognition fails, for obvious reasons, to account for the heterogeneity, even the indeterminacy, of religions. It constructs religious freedom as being for religions, as determinate, definable groups, rather than for individuals motivated by faith and conscience of whatever sort; it views religions as internally harmonious, corporate entities, bearing unitary and singular identities. It is the state that claims competence to recognise and therefore, implicitly, to determine religions' internal competences and hierarchies: it thereby risks disrupting the neutrality necessary to equal liberty of conscience, and, moreover, arrogating a potential power of subtle manipulation and control of religion itself. The liberal concept of religious freedom would therefore leave questions of clerical authority to private choice and private sanction. Without idealising the concept of religious freedom informing American jurisprudence,Footnote 187 it appears not to be similarly contingent upon an inchoate and necessarily selective politics of recognition. Religious liberty is not protected through recognition of the requirements of specific religious doctrines that the state might recognise as obligatory and binding for adherents, but from the standpoint of a broader conception of individuals' sovereignty over beliefs, identities and conceptions of the good, which is best served, the jurisprudence implies, by precluding the state from any intervention in doctrinal controversies, and by sustaining a political community in which citizens' equal standing is secured against any preferentialist recognition or largesse for those religions best positioned to instrumentalise state recognition.
Through the theoretical lens of political liberalism, again, this stance defines religious freedom independently of the requirements of religious doctrines themselves, but rather as the background social and institutional conditions necessary to the ‘exercise and development of moral personality over a complete life’, embracing an indeterminate range of hypothetical, ‘reasonable’ conceptions of the good or ‘final ends’. This separation of the content of rights from reasons of identity is closely redolent with the theoretical assumptions underpinning the Rawlsian ‘veil of ignorance’, and its ‘modelled constraints’ on the deliberative formulation of principles of justice. Citizens enjoy religious liberty not because the specific content of their religious doctrines is recognised and protected by the state but because their equal standing in the political community is protected independently of these. Citizens' political status is not ‘different and unequal as settled by religion or culture’,Footnote 188 but is constituted by a set of background social conditions, or ‘primary goods’, which remains identicalFootnote 189 and sufficient for an indeterminate range of ‘reasonable’ beliefs. Political liberalism suggests that religious freedom cannot consist of protections specifically attuned to the needs of particular ‘comprehensive doctrines’, and need only be sufficient from the standpoint of a ‘political’ conception of the person as free and equal, having the capacity for the ‘moral personality’, ‘over a complete life’.Footnote 190 Constitutional secularism thus represents the ‘dissociation of citizenship from religious affiliation’.Footnote 191
CONCLUSION
Thus, the politically liberal, Rawlsian affirmation that citizens claim ‘the right to view their persons as independent from and not identified with any particular conceptions of the good, or scheme of final ends’Footnote 192 finds remarkable echoes in the peculiar concept of religious freedom contained in the establishment clause jurisprudence. By way of contrast, the concept of religious freedom in Irish law, for the reasons outlined, implicitly rejects any notion of abstracting religious freedom rights from concrete religious differences, eschewing liberal-secularist abstraction. It denies that religious liberty can be protected without attention to and accommodation of the social and associative structures for religious practice, or without recognition of the specificities of religious identity. This concern for the concrete – for the substance of religious practices and beliefs, in preference to any abstract affirmation of autonomy of conscience – seems to override any countervailing concern surrounding the entanglement of public authorities in the recognition and determination of religious doctrines or obligations.Footnote 193 Yet the conceptual and ideological purity of the Irish stance should not be overstated. This doctrinal area clearly exemplifies the tension between the liberal-individualist tenor of many of the constitutional guarantees and the recognition of a ‘monotheistic Christian’ heritage in the Constitution. This paradox is neatly captured in MacMenamin J's identification of the ‘pluralistic Christian values’ of the Constitution.Footnote 194 There is an inherent tension between the neutrality towards religion necessary to ‘liberal’ equal religious liberty and what the High Court termed a ‘constitutional “domain” of religious recognition’.Footnote 195 The constitutional stance in Ireland is more extensively ‘accommodationist’ than the United States Constitution;Footnote 196 but McNally is almost absurdly optimistic as to the reconcilability of supportive state recognition of religion with equal religious liberty, a problem that it resolves by according the latter an implausibly narrow definition. The Irish position teeters between a liberal abstraction of citizenship from religious identity and the identification, as in McNally, of a ‘monotheistic Christian ethos’ in the Constitution – but with no recognition of the incommensurability of these commitments.Footnote 197 This is partly attributable to the fact that religion, rather than republicanism, seems to continue partly to ground the constitutional identity. The reference to a ‘monotheistic Christian ethos’ in McNally echoes – albeit in a much milder form – the Supreme Court's assertion in 1984 that, in enacting the Constitution, the people were ‘acknowledging their obligations to our Divine Lord Jesus Christ [and] proclaiming a deep religious conviction and an intention to adopt a Constitution consistent with that conviction’.Footnote 198 Thus, the model of religious freedom prevailing under Ireland's constitutional ethos represents a synthesis of the liberal individualism more pronounced in its American counterpart and what might be termed the alternative communitarian or romantic-nationalist conception, resting less on a vision of the ‘sovereign self’ and more on the recognition of the particular experiences, needs and commonalities of determinate religious communities, emphasising citizens' shared beliefs and identities as one of the anchoring points of national identity, which the state may constitutionally recognise and affirm.
