Is the Blasphemy Law Unconstitutional?

Atheist Ireland has sent a letter to the President of Ireland, outlining our concerns about the constitutionality of the new blasphemy law, for her to consider before she discusses the issue with the Council of State tomorrow. In our letter we argue the following:

• The law is contrary to the guarantees of equality under the law enshrined in Article 40.1 of the Irish Constitution, and of freedom of conscience and religion enshrined in Article 44.2.
• The law is contrary to Article 44.2.3 of the Irish Constitution, which says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
• The law shifts the burden of proof to the defendant in contravention of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003.
• The law does not meet the standard of prevention of imminent public disorder that made the old English blasphemy law compatible with the European Convention of Human Rights.
• The definitions in the law are too vague to allow citizens to regulate their conduct, and it could make it unlawful for a religious citizen to inform his co-religionists about a statement he believes to be blasphemous.

Here is the full content of our letter:

Cover Letter

Dear President McAleese,

I write as Chair of Atheist Ireland, an advocacy group for an ethical and secular Ireland. We ask you to consider our concerns about sections 36 and 37 of the Defamation Bill 2006, to raise them during your consultation with the Council of State, and to refer these sections to the Supreme Court for a decision on their constitutionality.

The contents of our submission are as follows:

1. Preface

2. Section 36(2)
2.1. Equality and Freedom of Conscience
2.2. Outrage versus Public Disorder
2.3. Vagueness of Definitions

3. Section 36(3)
3.1 Burden of Proof

4. Section 36(4)
4.1. Freedom of Religion and from Discrimination

5. Conclusion

We are not seeking to convince you that our arguments are necessarily correct; merely that they raise sufficient concerns to warrant you referring the matter to the Supreme Court, so that all of the arguments for and against can be teased out in appropriate detail.

The Constitutionality of the new Blasphemy Law

1. Preface

Please consider that you as President, the Council of State, and the Supreme Court judges, may have a conflict of interest in this matter. You will be considering the religiously inspired offence of blasphemy, and you have all taken office by making religious declarations which, in the case of you and the judges, include the request that “God direct and sustain” you. Please also consider that this exclusionary declaration precludes any of our members, as conscientious atheist Irish citizens, from holding any of the offices that will ultimately decide on this matter. In this context, we ask you to take particular note of our concerns.

2. Section 36 (2)

This states that a person publishes or utters blasphemous matter if (a) he or she publishes or utters 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, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

2.1. Equality and Freedom of Conscience

We believe this is contrary to the guarantees of equality under the law enshrined in Article 40.1, and of freedom of conscience and religion enshrined in Article 44.2.

The Christian nature of significant parts of the Constitution suggests that its framers, while respecting the right of citizens to believe in no gods or false gods, nevertheless saw the concept of blasphemy as protecting only the Christian religion. The old common law crime of blasphemy seems not to have survived the transition to the new Constitution, as it conflicted with the rights to equality and freedom of conscience and religion.

In the 1999 Corway v Independent case, Barrington J said that: “It would appear that the legislature has not adverted to the problem of adapting the common law crime of blasphemy to the circumstances of a modern State which embraces citizens of many different religions and which guarantees freedom of conscience and a free profession and practice of religion.”

This passage suggests that merely defining the old common law offence, or redefining a similarly discriminatory offence, would not pass constitutional muster: it has to be “adapted” to the circumstances of a modern State. The current Defamation Bill attempts to move towards this by redefining blasphemy as protection from outrage and extending such protection to citizens of any religion. However, in doing so, it arbitrarily excludes such protection from citizens who have a fundamental belief system based on no religion (or indeed based on a religion which a court rules not to be a religion.)

Is this constitutional? Returning to the 1999 Corway v case, the Supreme Court found that the Constitution guarantees freedom of conscience, religion and equality before the law to “all citizens, be they Roman catholics, Protestants, Jews, Muslims, agnostics or atheists.” The 1996 Constitutional Review Group noted that Walsh J had said in 1974 that this includes the right “to have no religious beliefs or to abstain from the practice or profession of any religion.” The Review Group concluded that “the guarantee probably also extends to philosophical beliefs such as humanism and may possibly also extend to other moral and ethical belief systems such as vegetarianism.”

Also, Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. This subsection provides for just such disabilities and discrimination against those Irish citizens whose religious status is that they are not religious.

2.2. Outrage versus Public Disorder

In 2007, the English High Court examined whether the (now abolished) common law against blasphemous libel was compatible with Article 10 of the European Convention of Human Rights. The case was R (on the application of Green) v The City of Westminster Magistrates Court [2007] EWHC 2785

In that case, the English High Court held that it was the prevention of imminent public disorder that made the old English blasphemy law compatible with the EHCR. But there is a big difference between the concept of “causing outrage” (which is what our Bill outlaws) and the risk of public disorder. That is particularly so with our Bill, where a potential defence exists of proving that blasphemous matter has artistic or other value.

This could lead to a situation where blasphemous matter was published, and it caused a reaction that went beyond causing outrage and did actually lead to public disorder, yet a defence would exist that could make it irrelevant that actual public disorder had been caused. So clearly this law is not intended to prevent public disorder.

If the Irish Supreme Court applies the same criteria to the constitutionality of this Bill, as the English High Court did to the compatibility of the English law with the EHCR, then this Bill could be unconstitutional.

(Note: thanks to Eoin O’Dell for bringing this argument to our attention.)

2.3. Vagueness of Definitions

This law is too vague to enable citizens to regulate their conduct. Unspecified matter is declared to be “grossly abusive” and “insulting” without clarifying who or what is being “grossly abused” or “insulted”. The phrase “in relation to matters” is an abstraction conveying the victimless concept of blasphemous matter being matter that abuses other matter. How can any citizen possibly know all of the “matters” that may be “held sacred” by “any” or indeed all “religions”?

What is Gross Abuse and Insult?

How are “gross” “abuse” and “insult” and their impact on “outrage” to be measured? Is it based on the sensitivities of a hypothetical reasonable person, or of an aggrieved religious adherent? If the latter, the provisions are self-conflicting in that religions have different gods, each the only true god, so matters held sacred by one religion could cause outrage to adherents of other religions.

(For example, if a fundamentalist Protestant preacher called the Pope the Antichrist, a substantial number of Roman Catholics might be outraged. Yet to charge such a person with blasphemy would surely be contrary to the constitutional guarantees of freedom of conscience and religion.)

What is a Substantial Number?

What is “a substantial number of adherents” of a religion? Is it an actual number, or a proportion? If it is an actual number, then the law discriminates against adherents of smaller religions. If it is a proportion, then the law discriminates against adherents of larger religions. Both are contrary to Article 44.2.3 of the Constitution.

(For example, the latest census lists 504 Baha’is and 3.68m Roman Catholics. If “a substantial number” is an actual number, then the law discriminates against Baha’is by making it much easier to blaspheme against their sacred beliefs, and if the number is higher than 504 then it is actually legal to blaspheme against their beliefs. On the other hand, if “a substantial number” is a proportion of adherents of a religion, say 10%, then fifty Baha’is would have more legal protection than would 350,000 Roman Catholics.)

Who is Deemed to Cause Outrage?

The phrase “intends to cause such outrage” seems to be based on a 1991 suggestion by the Law Reform Commission. They recommended deleting blasphemy from the Constitution, and suggested a fall-back position that defined blasphemy as “matter the sole effect of which is likely to cause outrage…” The definition in this new law excludes the word “sole” and thus makes a far wider range of matter potentially blasphemous.

Using the broader definition in this law, if a religious citizen was outraged by matter that he believed to be blasphemous, he would be outlawed from bringing that matter to the attention of other adherents of his religion, because he in turn would have to publish the matter to them in order to do so. This is contrary to the constitutional right of freedom of expression.

(For example, if the Danish cartoon incident was to be repeated here, and if the cartoons were found to be blasphemous, then the Muslim campaigners who republished the cartoons, by bringing them to the attention of other Muslims, would themselves be guilty of publishing or uttering blasphemous matter. They would not be saved by the defence in section 36(2)(b) as they clearly would have intended to cause outrage among their fellow Muslims. Nor would they be saved by the defence in section 36(3) as that refers to the value being inherent in the matter itself, not in the motivation for publishing or uttering it.)

3. Section 36 (3)

This states that it shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

3.1. Burden of Proof

This subsection shifts the burden of proof to the defendant in contravention of the accepted interpretation of Article 38 of the Constitution, and of Schedule 1, Article 6, 2. and 3(a) of the European Convention on Human Rights Act, 2003. It makes the defendant, in a criminal case, prove his or her innocence by reference to the imagined thoughts of a non-existent person.

On the other hand, if this burden of proof were to be set very low, even to the extent of being in effect reversed, then, ultimately, the crime that this law would create is that of publishing or uttering matter that has no genuine literary, artistic, political, scientific, or academic value. Otherwise, you could cause outrage or even public disorder, and you would not be convicted under this law.

So the higher the burden of proof, the more the presumption of innocence is undermined; and the lower the burden of proof, the more the requirement to prevent public disorder (as a reason for restricting freedom of expression) is undermined.

4. Section 36 (4)

This states that “religion” does not include an organisation or cult (a) the principal object of which is the making of profit, or (b) that employs oppressive psychological manipulation (i) of its followers, or (ii) for the purpose of gaining new followers.

4.1. Freedom of Religion and from Discrimination

Article 44 guarantees freedom of religion, whilst Article 44.2.3 says that the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. Yet this subsection specifically imposes disabilities and discriminates against some citizens of minority or no religions, on exactly these grounds.

This subsection also arbitrarily describes some religions as cults, without defining either religion or cult (In our opinion, ‘cult’ is a label that adherents of a large religion give to a small religion). In the context of examining “matters held sacred”, it should not be the role of the Courts to determine what is or is not a religion.

In the 1979 McGrath and O Ruairc v Maynooth college case, Henchy J found that “the primary aim of the constitutional guarantee is to give vitality, independence and freedom to religion”. In the 1999 Corway v Independent blasphemy case, the Supreme Court ruled that, under the Constitution, “the State is not placed in the position of an arbiter of religious truth. Its only function is to protect public order and morality”.

Making profit is not contrary to public order or morality. Why should a religion not have the principal object of making profit, if its God reveals a divine instruction to do so? Article 44.2.5 of the Constitution says that every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions.

The final clause could see Roman Catholicism deemed to be not a religion. Its Church employs oppressive psychological manipulation by, for example, threatening children who have yet to reach the age of reason with psychologically terrifying ideas such as the Devil and Hell, both in its teachings and as part of compulsory instruction in our schools.

5. Conclusion

Finally, we ask you to consider that all judges of the State have the same conflict of interest as yourself on this matter. In principle, how is it possible for a person charged with blasphemy in Ireland to get a fair trial, when all of the available judges have asked a specific God to direct them in their work?

In spite of the numerous conflicts, contradictions and illogicalities in the Bill, on behalf of Atheist Ireland, I ask that you refer this Bill to the Supreme Court to rule on its constitutionality.