“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, we, the people of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ …” Question: what document begins with the above words? You might think it is some kind of religious text or prayer book. You would be wrong. These are the opening lines of the Irish constitution.
In the 17th century, blasphemy was declared to be a common law offence in England. This law would apply to Ireland as part of the United Kingdom over the coming centuries. After independence, the deference of the new Irish state before the Christian god was enshrined in the constitution. There are two articles in the constitution which legally oblige Ireland to legislate for blasphemy. Article 44.1 says that the state “acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.” More specifically, article 40.6.1 states that “the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”
The last time somebody was convicted of blasphemy in Ireland was in 1855 under English common law, when a man was brought to court for burning a Bible. Although in 1937 the new constitution also outlawed blasphemy, this was never legislated for, as the complications arising from the freedom of religion also enshrined in the constitution were seen as too difficult to deal with. The Defamation Act of 1961, which was enacted under the then Minister for Justice Charles Haughey, was the first piece of legislation to address blasphemy. This act forbade the printing or publishing of any “blasphemous or obscene libel.” The punishment would be a fine of five hundred pounds or two years in prison. The bill never defined blasphemy though, as Haughey insisted that the old common law definition was sufficient.
Over the next few decades, various commissions on legal and constitutional reform recommended that the offense of blasphemy be removed from the Irish legal system. No action was taken on these recommendations. Blasphemy had never been prosecuted in the history of the republic, so it was easier to ignore it. This all changed in November 1995 when the Sunday Independent published a controversial cartoon in the wake of the divorce referendum. It showed a priest blessing the eucharist while three politicians waved goodbye to him. It was captioned “Hello progress – bye bye Father” as a play on the famous “Hello divorce – bye bye Daddy” posters that had been used in the referendum campaign. John Corway attempted to bring a blasphemy prosecution against the Sunday Independent in the High Court as a result of this cartoon. The High Court rejected the case, and Corway appealed to the Supreme Court, who made the same decision. The Supreme Court said that because blasphemy had not been legally defined it was “impossible to say of what the offence of blasphemy consists,” adding that “the State is not placed in the position of an arbiter of religious truth.”
The blasphemy issue went quiet for about a decade after this. Eventually the inconsistency between the constitution and existing legislation was addressed and a new defamation bill was signed into law in 2009. This stated that blasphemy could be punished by a fine of up to 25,000 euro and defined the offence as the publication or utterance of “matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion.” The law also stipulates that the accused must have intended to cause such outrage.
Blasphemy is now defined in Irish law. Politicians who seem eager to avoid the bother of removing it from the statute book are keen to emphasise that the definition is so tortured that it would be difficult if not impossible to convict anyone. Those opposed to the law say it is a matter of principle. Ireland is a modern European nation, they argue, with no place for such an archaic criminal offence. And then there are those who are quite happy to see blasphemy being outlawed, and would perhaps like an even stronger deterrent.
Healthy to mock
People who would like to see religion protected by law from ridicule often point to legislation against hate speech to defend their argument. If you cannot insult someone based on their identity then there is no freedom of expression. So why not protect religions in the same way we protect the potential victims of hate speech? This argument is correct to a point. Any society that has laws against hate speech does not truly embrace the freedom of speech. If you cannot say whatever you want and not be punished, then your freedom is unarguably limited. However, laws against hate speech exist to defend people, while blasphemy laws exist to defend institutions. The people who are the victims of hate speech are usually vulnerable. Society as a whole has decided that it is worth sacrificing a small portion of freedom in order to protect certain people.
These laws also have a democratic mandate. If a party at the next general election decided it wanted to repeal Ireland’s 1989 Prohibition of Incitement To Hatred Act, it would most likely find the general public to be unsympathetic. Institutions, on the other hand, do not need such protection. Organised religions are still among the most wealthy and powerful groups on the planet. It is healthy to mock them. It is normal to be wary of power. As for the adherents to these faiths, who as individuals feel like they are being persecuted, there is provision in Irish law for their protection. The Prohibition of Incitement To Hatred Act forbids language or behaviour that is “threatening, abusive or insulting” or “likely to stir up hatred” towards somebody based on their “race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.” Religious hatred towards people is adequately dealt with by the law.
If individuals are already protected, then blasphemy law must by logic have some other purpose. And it does. It exists to protect hugely powerful organisations from being questioned or mocked. Although Irish blasphemy law is little more than a token gesture to satisfy the requirements of the constitution, we still should not have it. Instead of paying lip service to the cartoonists killed in Paris, or the blogger being lashed in Saudi Arabia, we should put another amendment on the ballot paper of our next referendum to remove blasphemy from the constitution.