I do not look on this as a light matter but as a very grave matter. I am not in the least encouraged by the predictions of the Parliamentary Secretary that the court will hold one thing to be a religious activity, and will hold some other thing not to be a religious activity. If there is a body of persons who honestly believe themselves to be a valid group with religious convictions, my whole instinct is to lean towards them and to hope that this Legislature and our courts would be as jealous of their rights in our society as they would be of the rights of the most powerful and highly organised church in our community.
You should be extremely chary about doing violence to a religious group simply because it appears to you that their religious conviction is at variance with what you yourself believe to be true. The very quintessence of a Christian society, and particularly a society where the population is more than 97 per cent. Roman Catholic, is that everyone's religious convictions will be most scrupulously respected. It is with that situation in mind that you have got to face this whole problem and while your inclination is to see that everyone will be perfectly free to hold such religious convictions as may appear appropriate to them, do you want to go the step further of saying that, however incongruous, incomprehensible and inexplicable these religious convictions may appear to be in the eyes of reasonable men, the courts, once they determine it is a religious issue and that a bequest to it is technically for the advancement of religion, will then have put upon them an obligation by this Legislature to ask that group: "What are your laws, canons, ordinances and tenets?" and, if there is no other source of evidence available to the court, that the court is bound to approve a scheme in accordance with those laws, canons, ordinances and tenets as reported to them by that group, whatever these laws, canons, ordinances and tenets may be?
I am bound to say that we were very much better off before Section 45 and Section 46 were presented to us. I am of opinion that Section 46, as here amended, may give rise in the future to most undesirable difficulties which we have successfully avoided to date and may give rise to conflicts which none of us would wish to see develop in our society. I am not one bit ashamed in declaring that, in regard to delicate matters of this kind, it is very often wiser for the Legislature to stand aside and let the Court of Chancery in our own country deal with the problems that arise in connection with matters of this kind.
The Court of Chancery is there with its own code to mitigate the rigours of the statute and common law. It has done so with remarkable success. It has shown that flexibility and wisdom which has enabled it to adapt the common law and the statute law itself to the requirements of our society, since our independence was established here. We are going in now with the crude machinery of the statute law to try to improve upon what the Court of Chancery has already done.
I think the decision of the previous Government to leave this matter with the Court of Chancery was probably the wisest and I believe that the Parliamentary Secretary has found himself already slipping down the slippery slope and devised Section 45 and Section 46 as an innovation which he thought would tidy up this difficulty because he was persuaded in the Seanad to offer amendment No. 5 as a further elaboration of what he first recommended to this House as a solution to this proposal. I think he has allowed himself to be pushed too far.
He has not given us the history of the amendment, where it came from or who urged it upon him. If it were desirable, why did he not include it in his original draft to this House? He has fallen into the exact pit which we sought to avoid and that is to try to improve on what the Court of Chancery has done. He is now doing by statute far more than the Court of Chancery would have done and very much more than this Legislature would have approved of, if they could foresee its potentialities and we were confronted with such developments as have taken place both in the United States and elsewhere throughout the world.
The fact that we are free from such aberrations gives us no guarantee that we will do better. We are cutting a very awkward stick which may be used upon our own backs in the years to come if and when the contingencies which I regard as quite possible arise to plague us here as they have done elsewhere.
