Thursday, August 5, 2010

"Blasphemy in a Secular State: A Pardonable Sin?"

Reid Mortensen, Blasphemy in a Secular State: A Pardonable Sin?, 17 University of New South Wales L. J. 409 (1994)

This is an older article, but one still relevant for scholars interested in how Australia has treated blasphemy. According to the piece, the Commonwealth (Federal government) does not have a statutory prohibition on blasphemy. However, blasphemy as a common law offence is a possibility in a few Australian states--the evidence is equivocal, balancing dicta and oblique statutory references against the possibility of abrogation through desuetude. At the time this article was written in 1994, a clear answer as to the status of blasphemy in Australia could be found only in three jurisdictions: Tasmania, which has a direct prohibition on blasphemy in its Criminal Code; and Queensland and Western Australia, which have abolished common law crimes and do not have a statutory prohibition on blasphemy. (p. 417-18) Mortensen argues that blasphemy laws are not consistent with principles of secularism in a modern nation-state, though (from what I can tell) the lack of both recent prosecutions and a constitutional bill of rights applicable to state legislatures means the crime of blasphemy is difficult to challenge.* Mortensen concludes that "The case for the abolition of the blasphemy laws is a strong one. It has still met with little success, and if the more recent trend towards the extension of [religious] vilification laws should persist, the law will continue to claim it can know and designate its heresiarchs, of old kinds and new." (p. 431)

* In upcoming posts, I'll examine more recent law review articles that discuss how the situation has changed in regard to these two points.

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