blasphemy

This page considers blasphemy, highlighting issues, regulation and studies.

It covers -

• introduction - making sense of blasphemy and sacrilege
• a trajectory - how conceptualisation of blasphemy and its restriction has changed over the millennium
• defending god - crimes against god (and his church) in early-modern societies
• protecting the state - exemplary prosecutions to discipline the lower orders during the steam age?
• hate speech in a secular society - blasphemy, vilification, free speech and wowserism in the 21st Century

It supplements the guide on Censorship, Free Speech & Secrecy; the discussion of hate speech in the digital environment; and an exploration of Australian discrimination law.

     introduction

For much of history sacrilege and blasphemy (and more broadly offences against religious dogma) were the primary focus of censorship regimes, with exemplary punishment of blasphemers and measures for the identification, destruction or deterrence of heterodox works. That protection was generally restricted to a particular creed and often to an established church, reflecting religious dogma as a key building-block of the pre-modern state and each sect/creed's claim to exclusive ownership of the truth. It for example encompassed protection for Christianity and the Anglican Church but not Islam, Judaism or Deism.

Demarcation of sacrilege and blasphemy is unclear, with the former often being characterised as "violation of a sacred or holy place", "impious or irreverent treatment of sacred objects", acts or speech that "dishonour" the deity (or the deity's representative) and so forth. Notions of sacrilege are apparent in all pre-industrial cultures (and beyond), including prohibitions on the unitiated, unbelieving or ritually unclean (eg women) entering sanctified spaces or sighting holy objects.

Blasphemy in western societies has proved to be a malleable concept that encompassed "insult" to the deity (or merely to the deity and dogma of a particular state, for example the established church in England for much of the past 500 years).

The secularisation of industrial societies over the past two hundred years - highlighted in works such as Hugh McLeod's Secularisation in Western Europe 1848-1914 (Basingstoke: Macmillan 2000) and Owen Chadwick's Secularisation of the European Mind in the 19th Century (London: Cambridge Uni Press 1975) - has been reflected in declining numbers of blasphemy prosecutions. Legal restrictions on blasphemy in Australia during the past three decades have essentially attracted attention as a curiosity or as a question about human rights in a multicultural society.

Numerous jurisdictions, however, retain blasphemy statutes. The emergence of anti-vilification legislation embodying a broad respect for human rights or addressing specific concerns within a particular jurisdiction has led some to question whether blasphemy law is still appropriate ... an archaism that is antithetical to free speech and contemporary conceptions of the state or that uniquely privileges particular institutions and beliefs. It has been equated with fatwas against dissidents such as Salman Rushdie and characterised as part of broader restrictions on expression and behaviour that affect both minorities and the broader community.

Others, including people who are not religious adherents, have called for retention of statute law and support by government for private prosecutions. Those calls encompass arguments that blasphemy is destructive of public order or can be an instrument for racial hatred, that there is strong support from 'the silent majority' or that existing law is an appropriate safety net (with courts left to deal with any prosecutions).

Some figures have suggested that publishers and speakers should be particularly aware of the potential impact of statements regarding Islam, exercising restraint irrespective of any legal requirements in order to minimise offense to believers within that publisher's community and in other nations. Such suggestions have been met with comments that self-censorship is undesirable and that in much practice much publication gives - or can be claimed to give offence. Sensitivities should not chill free speech within/across cultures.

Responses to recent litigation - successful or otherwise - in Western states have thus varied considerably. Questions of principle and practice are of interest for what they reveal about tensions in conceptualising human rights and the way that particular individuals/institutions have leveraged the media or deployed the legal system in societies where statements of belief often seem at odds with day by day behaviour.

     trajectory

In the West the characterisation of blasphemy - and its restriction by the state - has broadly traced the following trajectory -

• blasphemy as a crime against nature, deserving of exemplary punishment by civil and religious arms of the pre-modern state
• blasphemy as an offence against public order, with prosecution by governments and individuals against something that embodied a broader attack on social/political hierarchies and thus threatened society as a whole
• 'personalisation' of blasphemy, with protection for the beliefs of individual Christians (although not necessarily for those who feel oppressed by expression of those beliefs) but not their churches per se
• uncertainty about the interaction of human rights and free speech, much contemporary concern assuming that religious belief is a matter for each individual but recognising that 'hate speech' may underpin violence against parts of the community or be seen to legitimate their marginalisation.

The trajectory means that the meaning of 'blasphemy' has changed over time in different jurisdictions. Is it use of a profanity such as 'damn' in ordinary speech? Questioning particular tenets of dogma? Noting incongruities in claims that each faith has a special and exclusive relationship with 'the' deity? Adhering to another faith or not accepting an established church? Attributing particular behaviour to religious figures or merely portraying them in contemporary surroundings? Treating satire as more/less deserving of protection?

The trajectory has also been reflected in patterns of prosecutions and punishment, from zealous monitoring and exemplary burning of offenders in counter-reformation Spain and Venice, through selective prosecutions in the UK during periods of social distress over the past 200 years, and what one observer dismisses as the "King Canute approach of the chief wowsers" in contemporary Australia or manifestations of institutionalised homophobia.

Outside the West blasphemy has continued to attract exemplary and severe punishments, whether under law (eg long term imprisonment and even execution) or action by vigilantes (eg stoning or burning of offenders, burning of texts and images, violence against representatives of nations that are considered to condone blasphemy).

     defending god

In AngloSaxon states the offence of blasphemy originated in in ecclesiastical law, with church courts punishing 'insults to God'. Justifications for that punishment ranged from 'natural law' through to explanations that failure to do so would result in eathquakes, plagues and other calamities as the deity expressed his displeasure.

Blasphemers - who might include those who had expressed heterodox views (eg about the Trinity, the legitimacy of the ecclesiastical hierarchy or the likelihood of salvation), those guilty of 'unnatural' activity such as sodomy, and those of other faiths - might be condemned on God's behalf and burnt, hung, branded, buried alive or merely parked in custody until they expired.

Some enthusiasts have retained that perspective. One contemporary group thus proclaims that

Blasphemy is not an offence against a person, a race or a religious group, nor even against 'the Christian religion', as some have said. It is an offence against Almighty God. The law on blasphemy is a statement of how a nation views God. Is God the Almighty Creator of all that is? Is He ruler of all the kingdoms of the world, as stated during Her Majesty's Coronation and witnessed by the Orb under the Cross in the Crown Jewels? Or is He a private lifestyle choice?

Restrictions on blasphemy were an integral part of daily life, circumscribing language and practices. Alain Cabantous comments that blasphemy was a serious act because it simultaneously offended the religious, social and political realms. In attributing the Devil's work to God or insulting the deity the blasphemer made society vulnerable to God's vengeance, polluted the community and subverted the divinely ordered structure of authority.

In the postReformation UK, particularly with abolition of the Star Chamber, blasphemy came to be a common law offence, punishable by the common law courts and construed more narrowly than in the past. The landmark 1676 Taylor's Case affirmed that Christianity was

parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the law.

The common law courts were thus able to punish any attack on the state religion (the Church of England) as a crime against the state itself. Punishment was butressed by claims that "true religion" was essential to social stability, although the specifics of true religion were somewhat mutable. Cabantous

The crime of blasphemy in Seventeenth Century England was the crime of dissenting from whatever was the current religious dogma. King James I's Book of Sports was first required reading in the churches; later all copies were consigned to the flames. To attack the mass was once blasphemous; to perform it became so. At different times during that century, with the shifts in the attitude of government towards particular religious views, persons who doubted the doctrine of the Trinity (e.g., Unitarians, Universalists, etc.) or the divinity of Christ, observed the Sabbath on Saturday, denied the possibility of witchcraft, repudiated child baptism or urged methods of baptism other than sprinkling, were charged as blasphemers, or their books were burned or banned as blasphemous. Blasphemy was the chameleon phrase which meant the criticism of whatever the ruling authority of the moment established as orthodox religious doctrine

     protecting the state

Slow secularisation of society in the UK saw increasing characterisation of blasphemy as something that undermined peace and good government, rather than expression that caused floods and earthquakes. Jurist Matthew Hale announced that

to say religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved

Questioning religious dogma was thus an attack upon the security of the state and those, such as magistrates, clergy and monarch who embodied that state. It deserved public condemnation. James Nayler was for example condemned to

be set on the pillory ... in the New Palace, Westminster, during the space of two hours ... and shall be whipped by the hangman through the streets, from Westminster to the Old Exchange, London and there likewise to be set on the pillory ... in each of the said places wearing a paper containing an inscription of his crimes; and at the Old Exchange his tongue shall be bored through with a hot iron; and that he be there stigmatized in the forehead with the letter B; and that he be afterwards sent to Bristol and conveyed into and through the said city on a horse, bare-ridged, with his face backwards and there also publicly whipped the next market day ... from thence he be committed to prison in Bridewell, London, and there restrained from the society of all people and kept to hard labor till he shall be released by Parliament; and during that time be debarred from the use of pen, ink, and paper; and shall have no relief but what he earns by his daily labor

Critically, convergence of church and state meant that attacks on faith other than the state religion were not subject to the criminal law of blasphemy. People in England could accordingly mock the Papacy, Judaism or Islam without fearing the hot iron as long as they avoided criticism - however restrained - of the central tenets of Anglican orthodoxy.

The Blasphemy Act of 1697 thus noted that

many persons have of late years openly avowed and published many blasphemous and impious opinions, contrary to the doctrines and principles of the Christian religion, greatly tending to the dishonour of Almighty God, and may prove destructive to the peace and welfare of this kingdom

That Act made it an offence to deny any one of the persons in the Trinity to be God, to assert that there are more gods than one, to deny the Christian religion to be true, or to deny the Bible to be of divine authority. For a first conviction the offender was deprived of the right to hold any office or employment; a second conviction invoked imprisonment for 3 years.

Rationalisation in 1792 saw the grouping together of blasphemous libel and seditious libel in Fox's Libel Act, with juries for the first time being authorised to determine whether a publication was blasphemous. That change appears to have resulted in gradual relaxation of convictions and prosecutions.

It is important to note, however, that tolerance in the Age of Enlightenment was uneven. In the US for example John Ruggles was sentenced to three months' imprisonment and a US$500 fine in 1810 after he

did wickedly, maliciously, and blasphemously, utter, and with a loud voice publish, in the presence and hearing of divers good and Christian people, of and concerning the Christian religion, and of and concerning Jesus Christ, the false, scandalous, malicious, wicked and blasphemous words following: 'Jesus Christ was a bastard, and his mother must be a whore,' in contempt of the Christian religion

By 1857, in the Pooley case, blasphemy was considered to include

Every publication ... which contains matter relating to God, Jesus Christ, the Bible, or the Book of Common Prayer, and intended to wound the feelings of mankind, or to excite contempt and hatred against the Church by law established or to promote immorality.

It thus excluded offences against other faiths and indeed Christian denominations other than the Church of England. In 1842 it had been characterised as publication of words that were

so scurrilous and offensive as to pass the limits of decent controversy and to be calculated to outrage the feelings of any sympathiser with Christianity.

As later pages of this profile illustrate, perceptions in Australia and the UK of 'the limits of decent controversy' (or merely the enthusiasm with which offences should be prosecuted by authorities other than in times of crisis changed over the following sixty years.

     blasphemy as hate speech in a secular society?

By 1917 Judge Parker could say in The Secular Society case that

to constitute blasphemy at common law there must be such an element of vilification, ridicule, or irreverence as would be likely to exasperate the feelings of others and so lead to a breach of the peace

with a colleague commenting that the offence centred on "a supposed tendency to shake the fabric of society generally', something to be assessed on a case by case basis. Viscount Sumner questioned "the dictum that Christianity is part of the law of England" and that merely denying scripture was not unlawful, as such a proposition "imperils copyright in most books on geology".

UK provocateur John Gott was sentenced to nine months with hard labour in 1922 for selling blasphemous pamphlets, with the Lord Chief Justice dismissing an appeal on the basis that

it does not require a person of strong religious feelings to be outraged by a description of Jesus Christ entering Jerusalem "like a circus clown on the back of two donkeys" ... Such a person might be provoked to a breach of the peace

In 1949 Lord Denning confidently proclaimed "There is no such danger to society now and the offence of blasphemy is a dead letter", although noting vilification had become a central feature of definitions of blasphemy in 1922. In the US blasphemy was effectively a dead letter from 1952 onwards after the Supreme Court's recognition of parody and criticism as free speech.

The emphasis on vilification is of interest in considering the prosecutions noted in the final page of this profile. By the 1970s blasphemy or 'insult to religious beliefs' enactments and common law remained in place in the UK, Belgium, Denmark, France, Germany, the Netherlands, Norway and Spain and Sweden.

Agitator Mary Whitehouse used UK legislation against blasphemous libel to prosecute Gay News in 1977 over James Kirkup's The Love That Dares to Speak Its Name, with Justice Alan King-Hamilton disallowing defence of that poem on any literary or theological grounds. The defendents were convicted. The 1979 Williams Committee Report on Obscenity & Film Censorship noted that the statute was solely concerned with Christianity and recommended its abolition, a suggestion supported by the Law Commission in its 1985 report Criminal Law: Offenses against Religion & Public Worship.

Restriction of the UK common law offence to scurrilous criticism of the Christian religion was confirmed by the Divisional Court in 1990 in R v Chief Stipendiary Magistrate; ex parte Choudhury, where the court dismissed an attempted private prosecution of Salman Rushdie for his The Satanic Verses.

In 1968 a Dutch novelist was acquitted by the Netherlands supreme court after prosecution under 'scornful blasphemy' legislation for portraying the deity as a donkey. In Spain the crime of blasphemy was repealed in 1988. In contrast the blasphemy law under Section 295-C was added to the Pakistan Penal Code in 1986. It provided for the imposition of the death penalty or life imprisonment for persons convicted of blasphemy involving the name of the Prophet Mohammed. In May 1991 the death penalty became mandatory for persons convicted under Sec 295-C

Germany's somewhat more nuanced 1969 federal legislation deals with "the ridicule of faiths, religious societies, and ideological groups", with provisions that

1) Whoever publicly or by means of spreading written material ridicules the content of a religious or ideological society in a manner deemed able to disturb the public peace, is to be punished by up to three years in prison or a fine.

2) Whoever publicly or by means of spreading written material ridicules a domestic church, religious society or ideological group, its facilities or customs in a manner deemed able to disturb the public peace, is to be punished similarly.

Fines under that legislation have been imposed as recently as 1996.

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