Speaking in the Seanad this Thursday, Senators Jillian van Turnhout and Ivana Bacik both asked Eamon Gilmore, who is Ireland’s Deputy Prime Minister and Minister for Foreign Affairs, to take a strong line in support of Alexander.

Atheist Ireland thanks both Senators for their quick response to this case. We also thank Senator Ivana Bacik for her request in the Seanad on Wednesday for a full debate on the Irish blasphemy law and its national and international impact.

Senator Jillian van Turnhout:

I welcome the Tánaiste’s commitment to Internet freedom through his work as chair of the OSCE. It is on this note that I draw his attention to the recent arrest of a 31 year old Indonesian civil servant, whose name I will supply to the Tánaiste separately, for having questioned the existence of God on his Facebook profile page. He has been charged under Indonesian law prohibiting blasphemy and faces five years imprisonment if found guilty.

The reason I raise this case with the Tánaiste is that Indonesia is one of a number of Islamic states that has cited Irish blasphemy legislation in support and defence of its own. Irish blasphemy law was cited as an authority in support of Indonesia’s constitutional court decision to uphold its law prohibiting blasphemy in 2010.

While I fully support the repeal of this law, I do not believe the intention of the blasphemy legislation introduced by Mr. Dermot Ahern in 2009 was to infringe upon the rights to freedom of expression, religion, belief and conscience in Ireland. Nor do I think it is a desirable consequence that our law is being used to support such infringements, including against Christian religions in Islamic countries anywhere else in the world.

I consider this as much a foreign affairs concern as a domestic concern. I welcome that this law is up for review in the programme for Government.

Senator Ivana Bacik:

I would like to echo Senator van Turnhout in urging the Tánaiste to take a strong line in support of the Indonesian civil servant she mentioned. We need to examine our blasphemy law because it is clearly having a repressive effect in Indonesia, Pakistan and other countries. I know the matter will be reviewed as part of the constitutional convention, but I believe the law should be repealed. Perhaps progress can be made more quickly in this regard.

Here is the Seanad transcript of the above contributions and here is Senator Bacik’s request the previous day for a full debate on the Irish blasphemy law. Atheist Ireland asks everybody who reads this to contact your local politicians, your local Indonesian embassy, and the Indonesian Government to call for the immediate release of Alexander Aan.

Here is Senator Bacik’s contribution on the Seanad Order of Business:

I call for a debate on blasphemy law. There was an excellent briefing yesterday from Professor David Nash of Oxford Brookes University, a leading expert on blasphemy, who spoke about the international impact of the passage of the 2009 Defamation Act in Ireland, particularly section 36, which created a new statutory offence of blasphemy. There was an excellent debate on it in this House, and many colleagues participated in it.

There is an issue as there was an adverse international impact, with certain countries adopting Irish arguments on blasphemy and using this to bolster prejudice against different religions, even Christian religions in Islamic countries. We have also seen that Ireland has gone against the EU norm in adopting a new statutory definition of blasphemy based on a definition of offence.

It is outdated and I am glad it is up for review in the programme for Government. We must move forward by having a debate in the House on how we can ensure incitement to religious hatred laws are strengthened in the Statute Book. We no longer need an offence of blasphemy.

Starting today, Thursday May 6th, Atheist Ireland member Paul Gill will walk the length of Ireland, from Mizen Head in Cork to Malin Head in Donegal, to highlight the need to vote Yes in the coming Irish blasphemy referendum.

On January 1st, the day Ireland’s new blasphemy law became operational, Atheist Ireland published 25 blasphemous statements on our website. We continued lobbying at home and at European Parliament level. We also supported two blasphemy-themed art exhibitions in Dublin.

In March Justice Minister Dermot Ahern said he will propose a referendum later this year, along with other referendums, to remove the reference to blasphemy from the Constitution. Paul’s walk will encourage people to campaign for, and vote yes in, this referendum.

Appropriately, Paul’s walk started on May 6th, which is International Day of Reason. And to mark the start of Paul’s walk, we now publish 25 quotes on the Irish blasphemy referendum and the right to freedom of expression.

The first five quotes are specifically relevant to the coming referendum, which will ask the Irish people to remove the offence of blasphemy from the Irish Constitution:

“We are of the view that there is no place for the offence of blasphemous libel in a society which respects freedom of speech. The strongest arguments in its favour are (i) that it causes injury to feelings, which is a rather tenuous basis on which to restrict speech, and (ii) that freedom to insult religion would threaten the stability of society by impairing the harmony between the groups, a matter which is open to question in the absence of a prosecution. Indeed, we consider the absence of prosecution to indicate that the publication of blasphemous matter is no longer a social problem.”
Irish Law Reform Commission Report on the Crime of Libel, 1991. Commissioners: The Hon Mr Justice Ronan Keane, Judge of the High Court, President; John F Buckley, Esq, BA, LLB, Solicitor; William R Duncan, Esq, MA, FTCD, Barrister-at-Law, Associate Professor of Law, University of Dublin; Ms Maureen Gaffney, BA, MA, Senior Psychologist, Eastern Health Board; Research Associate, University of Dublin; Simon P O’Leary, Esq, BA, Barrister-at-Law

“The retention of the constitutional offence of blasphemy is not appropriate. The contents of the offence are totally unclear and are potentially at variance with guarantees of free speech and freedom of conscience in a pluralistic society. Moreover, there has been no prosecution for blasphemy in the history of the State. In so far as the protection of religious beliefs and sensibilities is necessary, this is best achieved by carefully defined legislation along the lines of the Prohibition of Incitement to Hatred Act 1989 which applies equally to all religious groups, but which at the same time took care to respect fundamental values of free speech and freedom of conscience.”
Irish Constitution Review Group, 1996. Members: Chairperson Dr TK Whitaker, David Byrne SC, Dr Alpha Connelly, Mary Finlay SC, Dermot Gleeson SC, James Hamilton BL, Mahon Hayes, Gerard Hogan FTCD, BL, Professor Áine Hyland, Dr Finola Kennedy, Professor Michael Laver FTCD, Dr Kathleen Lynch, Diarmaid McGuinness BL, Dr Dermot Nally, Dr Blathna Ruane BL

“The right to freedom of expression implies that it should be allowed to scrutinise, openly debate, and criticise, even harshly and unreasonably, belief systems, opinions, and institutions, as long as this does not amount to advocating hatred against an individual or groups… An insult to a principle or a dogma, or to a representative of a religion, does not necessarily amount to an insult to an individual who believes in that religion…. A democracy must not fear debate, even on the most shocking or anti-democratic ideas. It is through open discussion that these ideas should be countered and the supremacy of democratic values be demonstrated. Mutual understanding and respect can only be achieved through open debate. Persuasion, as opposed to ban or repression, is the most democratic means of preserving fundamental values… Certain religious groups have undoubtedly shown increasing sensitivities in this regard, and have reacted violently to criticism of their religion… Democratic societies must not become hostage to these sensitivities and freedom of expression must not indiscriminately retreat when facing violent reactions… The threshold of sensitivity of these groups and of anyone who would feel offended by the legitimate exercise of the right to freedom of expression should be lowered… The Commission finds: (a) That incitement to hatred, including religious hatred, should be the object of criminal sanctions; (b) That it is neither necessary nor desirable to create an offence of religious insult simpliciter, without the element of incitement to hatred as an essential component. (c) That the offence of blasphemy should be abolished (which is already the case in most European States) and should certainly not be reintroduced.”
Venice Commission Report on Freedom of Expression and Religion, 2008. The Venice Commission advises the Council of Europe on constitutional matters. This report was co-written by the Commission’s Irish member, Finola Flanagan, Director General and Senior Legal Advisor in the Office of the Irish Attorney General.

“In a modern Constitution, blasphemy is not a phenomenon against which there should be an express constitutional prohibition.”
Joint Oireachtas Committee on the Constitution, 2008. Members: chairperson Sean Ardagh TD, vice-chairperson Jim O’Keeffe, plus TDs Thomas Byrne, Michael D’Arcy, Tom Hayes, Brendan Howlin, Michael Kennedy, Denis Naughten, Ned O’Keeffe, Mary O’Rourke and Michael Woods; and Senators Dan Boyle, Denis O’Donovan, Eugene Regan and Alex White.

“We believe that the concept of defamation of religion is not consistent with the promotion and protection of human rights. It can be used to justify arbitrary limitations on, or the denial of, freedom of expression. Indeed, Ireland considers that freedom of expression is a key and inherent element in the manifestation of freedom of thought and conscience and as such is complementary to freedom of religion or belief.”
Micheal Martin, Irish Minister for Foreign Affairs, 2009. The Minister was replying to a parliamentary question about Ireland’s opposition at the UN to an Egyptian motion on combatting defamation of religion. The Islamic States have been trying to have this passed for a decade now. Since Ireland passed the new blasphemy law last year, the Islamic States have adopted the wording of our law as best practice for international blasphemy laws.

The next twenty quotes are about the right to freedom of expression:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Article 19, Universal Declaration of Human Rights

“No-one has the right not to be offended.”
John Cleese

“I am not an ordinary playwright in general practice. I am a specialist in immoral and heretical plays. My reputation has been gained by my persistent struggle to force the public to reconsider its morals.”
George Bernard Shaw

“The problem with writing about religion is that you run the risk of offending sincerely religious people, and then they come after you with machetes.”
Dave Barry

“Freethinkers are those who are willing to use their minds without prejudice and without fearing to understand things that clash with their customs, privileges, or beliefs. This state of mind is not common, but it is essential for right thinking; where it is absent, discussion is apt to become worse than useless.”
Leo Tolstoy, On Life and Essays in Religion

“If I had a large amount of money I should found a hospital for those whose grip upon the world is so tenuous that they can be severely offended by words and phrases yet remain all unoffended by the injustice, violence and oppression that howls daily.”
Stephen Fry

“The sound of tireless voices is the price we pay for the right to hear the music of our own opinions.”
Adlai Stevenson

“Did you ever hear anyone say: That work had better be banned because I might read it and it might be very damaging to me?”
Joseph Henry Jackson

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Article 10, European Convention on Human Rights

“A truly great library contains something within it to offend everyone.”
Jo Godwin

“Once you permit those who are convinced of their own superior rightness to censor and silence and suppress those who hold contrary opinions, just at that moment the citadel has been surrendered.”
Archibald Macleish

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”
Salman Rushdie

“The basic right to freedom of opinion is the most immediate expression of the human personality in society and, as such, is one of the noblest of human rights. It is absolutely basic to a liberal-democratic order because it alone makes possible the constant intellectual exchange and the contest among opinions that form the lifeblood of such an order; it is the matrix, the indispensable condition of nearly every other form of freedom”
German Constitutional Court, Luth case

“Being offended is a natural consequence of leaving the house.”
Fran Lebowitz

“In the long run of history, the censor and the inquisitor have always lost. The only weapon against bad ideas is better ideas.”
Alfred Griswold, New York Times

“We played a gig and we had a song that was offensive to people of the Jewish persuasion, and we led off with it, and they were offended by it, and that was that.”
Santiago Durango

“Free inquiry requires that we tolerate diversity of opinion and that we respect the right of individuals to express their beliefs, however unpopular they may be, without social or legal prohibition or fear of success.”
Paul Kurtz, A Secular Humanist Declaration

“Being offended is part of being in the real world.”
Courtney Love

“I did that joke in Alabama, in Fife, and these three rednecks met me after the show. ‘Hey, buddy! C’mere! Mister funny-man, c’mere! Hey, buddy, we’re Christians, and we don’t like what you said.’ I said: ‘So forgive me.’ Later, when I was hanging from the tree…”
Bill Hicks, Relentless

“But what is wrong with inciting intense dislike of a religion, if the activities or teachings of that religion are so outrageous, irrational or abusive of human rights that they deserve to be disliked intensely? To criticise people for their race is manifestly irrational, but to criticise their religion is surely a right. The freedom to criticise or ridicule ideas – even if they are sincerely held beliefs – is a fundamental freedom.”
Stephen King, Irish Examiner

A new art exhibition titled Blasphemous opened (appropriately) on Good Friday in the Irish Museum of Contemporary Art (IMOCA) in Lad Lane, off Baggott Street, Dublin 2. It’s the second art exhibition to highlight and challenge the new Irish blasphemy law, which became active on 1st January 2010.

Since then, the Irish Justice Minister has responded to the campaign against the law by saying that he will propose a referendum, later this year, to remove the reference to blasphemy from the Irish Constitution, thus enabling the blasphemy law to be repealed.

This makes the new exhibition in IMOCA not just a challenge to the blasphemy law, but also a celebration of artistic freedom, and freedom of expression generally. The exhibition runs until 25 April and is open from 12 noon to 5 pm every Friday, Saturday and Sunday, or by appointment through contacting IMOCA.

“It’s probably somewhat different in Ireland, in that we have a Constitutional requirement, which means that, you know, blasphemy, is an offence under our laws, and as a consequence, it has to have penalties which will be commensurate with that, and respect our Constitutional position, but, having said that, I think, over the period that it’s been there, as far as I can understand, there has been very few, perhaps one, case ever taken, which I think may have been unsuccessful, so it’s not a major issue, I think, for the vast majority of, sane, sensible people… In Ireland the laws that we have, based on the Constitutional position, would, in fact, you know, cover all religions, and indeed, we’ve seen where, you know, remarks passed have caused serious offence to people in other religions, and that has its own reactions, and its own ramifications, and I think in any society, I know there’s, you know, freedom of expression is very important, I mean it’s fundamental to democracy, and to be able to express your viewpoint is a fundamental, and in fact, can I just say, and this would be different than in Britain, in fact, it is a Constitutional requirement here to have freedom of speech, but I think most people, again, recognise that freedom of speech is not an absolute, it has to be done in a measured, responsible way, and, indeed, there, it can be, you can infringe, if you like, that entitlement by Incitement to Hatred Acts, which we have here, which has been contravened, and indeed there are other countries, you know, in Europe, like Germany, Austria and that, where, for example, you know, denial of the Holocaust is an offence punishable by imprisonment.”

All of these arguments have been addressed by Atheist Ireland, both in articles on this website and in submissions made to the Justice Minister, the Justice Committee and the Council of State while this Act was making its way through Parliament.

It was not Constitutionally necessary to pass this particular law. Indeed, it may have been unconstitutional to pass this particular law. It may not have been Constitutionally necessary to pass any blasphemy law. And the Constitution could have been amended in conjunction with the Lisbon II Referendum that was being held around the same time as the law was being passed.

The new Irish law does not protect the fundamental beliefs of all religions. It arbitrarily excludes what it describes as “cults” whose primary aim is to make profit or who employ oppressive psychological techniques. And it does not protect the fundamental beliefs of atheist citizens, merely those of citizens whose fundamental beliefs are religious.

Nobody is suggesting that the right to freedom of expression is absolute, merely that blasphemy is not a justifiable reason to qualify it. Incitement to Hatred laws criminalise harm to individuals, while blasphemy laws criminalise harm to ideas. The existence of Holocaust Denial laws in specific countries do not justify a blasphemy law in another country.

Senator Walsh’s arguments merely strengthen the case for the immediate repeal of this anachronistic law, and for the development of a modern secular Irish Constitution.

Atheist Ireland is seeking your help today to launch and shape a new long-term campaign with two important aims: to repeal the new Irish blasphemy law and to attain a secular Irish Constitution. Specifically, we are asking you to do three things: send us a message of support, get actively involved in shaping this project, and lobby to persuade Irish politicians to pursue these policies.

We will soon be holding public meetings around Ireland to launch this campaign. We want it to include religious and nonreligious people working together, within Ireland and with international support. The campaign has one common aim that transcends any other differences we may have: that all Irish citizens, of all beliefs and none, can live together in equality, with the State being neutral on matters of religion.

In recent decades, several independent and all-party committees (most whose members were Christians) have repeatedly called for an end to discrimination against nonreligious citizens in our Constitution. Not only has this not been done, but a new religious crime has now been created. The blasphemy law is the final straw. We need a secular Irish Constitution, and we need it now. Please help to make this happen.

Our Immediate Aim: Repeal the Blasphemy Law

The Defamation Act 2009 makes blasphemy a crime punishable by a €25,000 fine, after the Minister for Justice signs the commencement order in mid-October. Blasphemy is defined as “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” with safeguards to make it harder to prosecute.

Regardless of the detail, it is wrong in principle for a modern democratic republic to have any type of blasphemy law. Theological thought-crimes belong in the past. Religious and nonreligious people alike should be protected from harm and incitement to harm, but religious and nonreligious ideas alike should be open to any criticism. That is how human knowledge progresses. Blasphemy laws discriminate against nonreligious citizens, by protecting the fundamental beliefs of religious citizens only.

This law also has serious international impacts. Irish citizens could face blasphemy charges elsewhere under the European Arrest Warrant. Also, Islamic States are lobbying at the UN to make defamation of religion a crime internationally. Ireland has voted along with the other EU States against this, because Islamic States can use blasphemy laws to justify religious persecution. These Islamic States can now point to a modern pluralist Western State passing a new blasphemy law in the 21st century.

Our Overall Aim: A Secular Irish Constitution

We have a blasphemy law because the Irish Constitution of 1937 says we should have one. And our Constitution also discriminates against nonreligious citizens in many other ways. For example, you cannot become President or a Judge unless you take a religious oath asking God to direct and sustain your work. So up to a quarter of a million Irish people cannot hold these offices without swearing a lie. This is contrary to Ireland’s obligations under the UN Covenant on Civil and Political Rights.

The Preamble states that all authority of the State comes from, and all actions of the State must be referred to, the Most Holy Trinity. Article 44 states that the homage of public worship is due to Almighty God and that the State shall hold His Name in reverence. This is not merely an assertion of the right of citizens to worship this god. It is an assertion of the right of this god to be worshipped by citizens.

The Constitution also contains many other references to this god and to religion generally. Our national parliament reflects this by starting each day’s business with a prayer explicitly asking the Christian God to direct all of their actions. Under this guidance, they have legislated for many public policies that are heavily influenced by religion.

We should be removing these 1930s religious references from our Constitution, not creating new crimes to enforce them seventy years later. A modern secular Constitution would allow all citizens, whether religious or nonreligious, to live together as equals with the State being neutral on matters of religion.

Our Request to You: Please Help This Campaign

The blasphemy law is the final straw. We now need a secular Irish Constitution. We will soon be holding public meetings around the country to shape this campaign for equality for and by all Irish citizens, of any or no religious beliefs. But we will be much more likely to succeed if we have national and international support.

Here are three ways that you can help:

• One, please send us a message of support. Just a few lines will do. We want to be able to show that there is a wide support for these ideals.
• Two, please let us know if you would like to get actively involved in any way. You are more than welcome to help shape how this project evolves.
• Three, in whatever way you can, please help to lobby Irish politicians at national and international level to implement these policies.

This will be a lengthy campaign, but a very worthwhile one that you can be proud to have played your part in. We look forward to working alongside you to build an ethical and secular Ireland.

“The Act is subject to a commencement order. It is intended to commence all provisions of the Act simultaneously. However, it is not possible to make a commencement order at present as the Circuit and Superior Court Rules need to be amended to accommodate a number of procedural changes in the new legislation. It is not possble to give an exact date yet for commencement of the Act but it is expected to be mid to late October.”

The Minister has the option of commencing different parts of the Act at different times. Atheist Ireland will continue to ask him to delay commencing the blasphemy sections, until such time as a referendum can be held to remove the reference to blasphemy from the Constitution.

Atheist Ireland will now campaign for the repeal of this anachronistic and dangerous blasphemy law, and for a referendum to remove the blasphemy reference from the Irish Constitution, as part of our wider campaign for an ethical and secular Ireland.

We call on the Minister for Justice to delay signing the order that would make the blasphemy sections of the Defamation Act operable, until such time as a referendum can be held to remove the reference to blasphemy from the Constitution.

Ministerial Order

The Minister has the power to sign different provisions of the Act into law at different times.

He has already said that he does not want blasphemy to be illegal. He repeatedly told the Oireachtas that he only included the blasphemy sections into the Defamation Act because he was advised that he was constitutionally obliged to do so, and that to not do so would result in him having to withdraw the entire Defamation Bill.

The Minister has now satisfied the obligation that he stated himself to be under, and he has also succeeded in his more important stated aim of passing the Defamation Act. He should now delay making operable the sections of the Act that he says he does not want to be illegal, and give the Irish people the opportunity to address the issue by referendum.

Constitutional Issues

A citizen charged with blasphemy can still challenge the constitutionality of this law.

• It is inconsistent with the guarantees in our Constitution of freedom of equality, freedom of conscience and religion and freedom from religious discrimination.
• It reverses the burden of proof to the defendant in a criminal trial, and it does not meet the standard of prevention of 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.

Original Concerns

As well as the constitutional issues, our original concerns with this law still remain.

• It does not protect religious belief; it incentivizes outrage and it criminalises free speech. Instead of incentivizing outrage, we should be educating people to respond in a more healthy manner than outrage when somebody expresses a belief that they find insulting.
• It treats religious beliefs as more valuable than secular beliefs and scientific thinking. There is no equivalent of a blasphemy law for scientific ideas. We should respect people as individuals, but beliefs as abstract ideas should always be open to scrutiny and challenge.
• We should be removing 1930s religious references from the Irish Constitution, not legislating to enforce them. For example, conscientious Irish atheists are precluded from becoming President or judges because of the religious oath in the constitution.

Today we begin our campaign for the repeal of this law, as part of our wider campaign for an ethical and secular Ireland.

• 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.

The law now only has to pass through Seanad before being signed into law by President. It is scheduled for 10.30 am tomorrow morning in the Seanad. The Atheist Ireland AGM will plan a response to this blasphemy law, between 2-5pm this Saturday in Wynns Hotel Dublin. Members of the public are welcome to attend. Please attend, and also invite anyone you think might be interested in campaigning for an ethical and secular Ireland.