Thursday, July 29, 2010

"Is the United Nations Endorsing Human Rights Violations?"

Rebecca J. Dobras, Note, Is the United Nations Endorsing Human Rights Violations? An Analysis of the United Nations' Combating Defamation of Religions Resolutions and Pakistan's Blasphemy Laws, 37 Ga. J. Int'l & Comp. L. 339 (2009)

Several law review articles have been published in the last few years about the United Nations' "defamation of religion" resolution, but this student note by Rebecca Dobras is the best at explaining how the resolutions are linked to Pakistan. The article makes clear that Pakistan is not only a prime mover behind the resolutions on the international scene, but that the country's frequently- and severely- used domestic blasphemy laws would benefit from an international norm consistent with the resolutions. According to the piece, the number of blasphemy prosecutions has skyrocketed in Pakistan in the past decade, and even attempts by Musharraf to mitigate their effect have failed because the prosecutions are so popular. This is a long, but carefully written article that is one of the best I've seen on the subject of the U.N. resolutions and their underlying cause.

Monday, July 26, 2010

"Ethelbert Lionel Cross: Toronto's First Black Lawyer"

Susan Lewthwaite, "Ethelbert Lionel Cross: Toronto's First Black Lawyer" in Constance Backhouse & W. Wesley Pue, The Promise and Perils of Law: Lawyers in Canadian History (Irwin Law, 2009)

There's an interesting historical connection in the fact that Lionel Cross, Toronto's first Black lawyer, was also the defense lawyer in Canada's most famous blasphemy trial, the 1927 case R. v. Sterry. The connection is not purely a coincidence, however, as Cross was drawn to defend other minorities deemed, for whatever reason, as not worthy of belonging to "mainstream" Canada. Susan Lewthwaite's excellent article profiles Cross' life as a journalist, soldier, and crusading lawyer until his (possibly unwarranted) disbarment in 1937. Lewthwaite argues that "Cross was an 'outsider' in the Toronto legal profession not only because of his race, but also because of his immigrant status and his views on religion . . . Cross neither kept a low profile, nor did he attempt to join the rank of the city's elite. Cross remained an 'outsider,' and from that position consistently held virtually all of the entrenched local authorities--the police, the judiciary, the criminal law, and the church--to account." (p. 194)

Cross was counsel to the Rationalist Society, and thus it was natural that he would represent one of its members, Ernest Victor Sterry, against charges of blasphemous libel. Lewthwaite covers several interesting aspects of Cross' life in the article, but her description of the Sterry trial is of particular value to readers interested in the regulation of blasphemy in Canadian history. Although I wrote an account of the Sterry trial in Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions, Lewthwaite's article contains several points that I hadn't known before, including:

* Cross seems to have been a rationalist himself, and spoke at least twice at Rationalist Society meetings. (p. 201)

* American Rationalist Association chapters sent money to help with the defense, but its unclear whether the talk of Clarence Darrow attending the trial was ever anything more than a rumor. (pp. 206-207)

* Sterry would not swear on the Bible before taking the stand (p. 204). The article also contains a much fuller description of his testimony than I was able to find (p. 211)

* And most importantly, Sterry was never deported! How he escaped that fate is unclear, but he lived in Toronto for at least several years after the trial. (pp. 214-215)

Although "Ethelbert Lionel Cross: Toronto's First Black Lawyer" isn't available online, it's certainly worth tracking down for its profiles of both the lawyer and his most famous trial.

Wednesday, July 21, 2010

"Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society"

Maxim Grinberg, Defamation of Religions v. Freedom of Expression: Finding the Balance in a Democratic Society, 18 Sri Lanka J. Int'l L. 197 (2006).

This is a short student Note written just as the Danish Cartoon Controversy was erupting. It addresses, and provides a brief background, of the U.N.'s "defamation of religion" resolutions. After a short overview of international freedom of expression guarantees and some domestic infringements of those guarantees under the guise of blasphemy or religious hatred legislation, the Note argues that prohibiting "defamation of religion" is inconsistent with international law unless the resolutions are revised. The revisions suggested, however, are very general and rather vague ("the Resolution should require States to comply with international law", "the Resolution should make it clear that the judgment of whether a particular expression constitutes defamation of religion should be objective", etc.). As a student Note, it's a okay piece of writing, but contains nothing that can't be found in more recent and substantive articles elsewhere.

Monday, July 19, 2010

Random Law Review: "Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law"

Grant S. Nelson, Confronting the Mortgage Meltdown: A Brief for the Federalization of State Mortgage Foreclosure Law, 37 Pepp. L. Rev. 583 (2010)

The push for legal reforms following the U.S. housing crisis is an issue I've only followed sporadically through newspaper reporting. Nelson's article is an expert, highly technical argument that the scattered and inconsistent state-by-state regulation of foreclosure should be replaced by a uniform Federal code enacted by Congress that would preempt state laws on the subject. Nelson examines other methods by which uniformity could, in theory, be created, but finds that each is lacking practice: model foreclosure legislation promulgated by the National Conference of Commissioners on Uniform State Laws has been rejected by every state; the Restatement (Third) of Property: Mortgages has been incorporated slowly by state courts; and uniform contracts butt up against state statutes which have provisions that can not be opted out of. The article briefly discusses an interesting empirical debate in the literature over whether or not uniformity actually creates efficiencies, but Nelson argues strongly for Congressional action. Interestingly, however, he seems critical of the widespread state practice of allowing foreclosure only through judicial hearings--a practice which is quite protective of homeowners.

The Random Law Review uses a combination of and HeinOnline to select a random law review article published in the past few years for discussion.

Friday, July 16, 2010

"Blasphemy: Art That Offends"

S. Brent Plate, Blasphemy: Art That Offends (London: Black Dog Publishing, 2006)

This is an impressive book: a full-colour collection of images deemed blasphemous (by some element of society) along with strong and insightful essays on how society categorizes art as "sacred" and "profane." Although not a traditional "scholarly" study, and not specifically devoted to legal analysis, this work is certainly a worthwhile addition to the library of anyone who is seriously studying the phenomenon of blasphemy.

The Introduction contains a brief background into the events that led to the 2005-2006 "Danish cartoon controversy", along with some general musings on blasphemy in general. Plate accurately notes that "[b]lasphemy is a contested, fluid, and dynamic category of meaning" (p. 27) and argues that "[b]lasphemy, and the accusation of blasphemy, is a culturally symbolic marker that helps define societies and religious traditions, as well as provide identities for people in terms of gender, race, class, and sexuality." (p. 27) This idea is clearly born out when one sifts through the "blasphemous" images in the book: many involve some sort of combination of sacred images along with images that redefine, distort, or undermine that image by adding erotic, gendered, commercial, or racial elements.

Chapter 1, "Defining and Delimiting Blasphemy" argues that the best way to understand blasphemy is as a deliberate intermixing of the sacred and the profane ("profane" meaning simply "everday [or] ordinary", not necessarily negative on its own). Plate, smartly in my opinion, notes that the "sacred" doesn't necessarily coincide with religious: the things that many people hold sacred in America today, for example, such as patriotism, the flag, or even the free market can give rise to the same sort of outrage if transgressed as religious items have in other places or times. The chapter also provides a very brief overview of the notion of blasphemy in Judaism, Christianity, and Islam.

Chapter 2 provides a fuller history of blasphemy in the three world monotheistic religions--a wise reader should still seek a more in-depth treatment elsewhere, but as a short introduction to the subject it could be helpful. Intriguing sections of this chapter talk about how words can become images, and how blasphemy can be seen as a means of resisting dominant culture.

Chapter 3, "Blaspheming the Gods of Modernity" explores the broadened, non-religious conception of blasphemy I mentioned earlier. It argues that one of the things many modern Westerners hold sacred is "freedom of expression", and that in many ways the Danish Cartoon Controversy involved two types of blasphemy: "If the controversy revealed what some Muslims find authoritative and sacred--that is, the Prophet Muhammad and his representation--it also proved what many modernists hold authoritative and sacred--freedom of expression. If Muhammad can be blasphemed against, then, it seems, so can expressive freedom." (p. 170)

Text aside, the images in the book are full-colour and many are full-page. Helpful captions add context and explain why particular images were or are considered blasphemous. I especially found helpful actually seeing the images that I've often only read about in legal journals: The Danish cartoons, Andrea Serrano's Piss Christ, and stills from Theo Van Gogh's Submission. For something that seems, at first glance, to be a mere coffee-table book, Blasphemy: Art That Offends turns out to be something far more.

Wednesday, July 14, 2010

"Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World"

Charles C. Haynes, Living With Our Deepest Differences: Freedom of Expression in a Religiously Diverse World, 2008-2009 Fides et Libertas 56.

Haynes looks at several recent world developments--successful "defamation of religion" resolutions at the U.N., the U.K.'s new "incitement to religious hatred" law, the new Irish blasphemy statute, etc.--and concludes that "freedom of speech is losing ground in nations across the globe, most disturbingly in the democracies of Europe." (p. 58) He argues, quite rightly in my opinion, that religious groups who support censorship laws are being short-sighted, because times change and there's a fair chance those very same laws will be used against them someday. Haynes is strongly against blasphemy laws and their modern counterparts, but also makes an insightful point:

"That does not mean, of course, that we should sit back and do nothing to address concerns about speech that deeply offend people of faith. If speech codes or other government regulations are not the answer, what is? . . . It is simply not enough for one side to proclaim 'free speech' or 'free press' and for the other to cry 'blasphemy' or 'hate speech.'" (p. 61, 63)

He argues that education is better than censorship when it comes to reduce hateful speech, but this point needs further analysis.

Still, the question is worth pondering: beyond condemning blasphemy laws, what do civil liberties advocates have to say to religious minorities who are fearful of the rise of hate-groups?

Columnists Duel Over Honour Killings in The National Post

Today's National Post has an interesting debate between Tasha Kheiriddin and Marni Soupcoff over whether so-called "honour killings" should be the subject of special attention in the Canadian Criminal Code. Exactly what constitutes an "honour killing" is difficult to define, but the controversy seems to stem from cases where men kill their daughters or wives over perceived shame and insults to respect and decency, which may include dating men of another religion or dressing in Western-style clothing.

Kheiridden argues that honour-motivated murder should be added as an aggravating factor during sentencing, along with current aggravators such as domestic violence, gang activity, and terrorism. She argues that "knowing that a sentence for honour killing would carry a harsher penalty would send a clear message to potential perpetrators that these crimes will not be tolerated".

Soupcoff, on the other hand, comes out against any special provision in the Criminal Code for honour killings. She argues that current prohibitions on murder are sufficient, and that there would be no additional deterrent effect for adding aggravating factors: "If a man who is about to murder a daughter for disrespecting her family is not dissuaded by the general prohibition on homicide, will he suddenly change his mind if he learns of a legislative revision to the aggravating-factors sentencing portion of Criminal Code section 718?"

I'm on Soupcoff's side here, as I think aggravating factors (and most other tinkering with the Criminal Code) have no additional deterrent effect. The vast majority of non-lawyers don't even really know what aggravating factors are, or specifically which ones are and are not included in the Criminal Code. They just know that murder is bad, and pre-meditated murder is worse. The empirical research I've seen seems to make it clear that fine gradations in the criminal law have no additional deterrent effect.

Tuesday, July 13, 2010

Veil Ban Moves Forward in France

CNN reports that France's lower legislative house passed legislation today (by a 335-1 vote) that would criminalize the act of wearing a face-covering veil in public. The bill is clearly aimed as Muslim women, especially those who wear the full-body burqa. Women convicted under the statute would face a monetary fine or enrollment in "citizenship" courses. The bill still has to receive approval in the Senate, which will take up the issue in September.

I've never understood the French tendency to turn secularism into a tool of oppression--this is about the clearest case of infringing religious liberty I can imagine, as there is no pressing government need here that would outweigh the sincere religious belief of Muslim women who choose to wear burqas. The "feminist" argument that Muslim women are not freely choosing to wear the burqa may or may not be true in certain cases, but a complete ban strikes me as paternalism at its worst.

Moscow Museum Curators Convicted of "Religious Hatred"

Today's Globe and Mail (via the Associated Press) reports that two Russian art museum curators have been convicted of "inciting religious hatred" for an exhibition that "included images of Jesus Christ protrayed as Mickey Mouse and Vladimir Lenin". The two were fined but escaped prison sentences.

The incident points to the power of the Russian Orthodox Church in using government apparatus to secure its dominance over religion, and is another example of how I believe "religious hatred" laws are often traditional blasphemy laws in disguise.

I can't seem to find a link to the Globe and Mail story, so here's a link to a similar article on Yahoo.

Sunday, July 11, 2010

National Post on "God and the Charter"

On Saturday the National Post published a long editorial titled "God and the Charter". The editorial defends the portion of the Preamble to the Canadian Charter that states the country is founded upon "principles that recognize the supremacy of God" (and "the rule of law"). According to the editorial, the clause is recognition of an "anti-totalitarian principle" that reminds Canadians of a source of authority other than the state.

Legally speaking, I last looked into the meaning of the preamble a few years ago for my article "Church, State, and Charter: Canada's Hidden Establishment Clause". At that time, it was clear the courts had almost entirely ignored the Preamble, but it's very possible things have changed since then.

Thursday, July 8, 2010

"Blasphemous Libel of Ernest Davignon"

During my research into the history of blasphemy in Canada, I came across a file in the national archives titled "J.E. Godin - - St. John [Saint Jean], Quebec - Blasphemous libel of Ernest Davignon", RG-13-A-2, Volume 398, File No: 1934-308. The file contains a telegram sent by a man named J.E. Godin in 1934 to the Federal Minister of Justice complaining about the conduct of the presiding magistrate in the blasphemous libel trial of a man named Ernest Davignon. The telegram is here:

A memorandum within the file translates it as "Judge Donat Lalande seems to act as a persecutor in the matter of Ernest Davignon charged with blasphemous libel. Ask that investigation be made." A government official replied to Godin that the presiding magistrate was appointed by the Quebec provincial government and thus his conduct was outside of Federal jurisdiction. The file contains no further mention of the matter.

I thought I might come across the Davignon case while doing my survey of blasphemy cases reported in The Globe and Mail and The Toronto Star during that time period, but nothing came up. It may be worth a more focussed search sometime in the future to see just who Ernest Davignon was and why he was alleged to have blasphemed.

Wednesday, July 7, 2010

"Defamation of Religions versus Freedom of Expression: Finding the Balance" (Blasphemy Literature Review)

Vaughn E. James, Defamation of Religions versus Freedom of Expression: Finding the Balance, 2008-2009 Fides et Libertas 43.

This article is noteworthy insofar as it's the first substantive article I've seen that supports the idea of prohibiting the "defamation of religion" using international law. To be precise, the author would substitute the phrase "The Protection of Religious Sensibilities" for the phrase "defamation of religion" because "defamation" already has a precise legal meaning. He is also careful to note that freedom of expression is a value worth protecting. However, James states that:

"[W]hat I envisage is a system whereby men, women and children would separate the discussion of theological issues and disagreements over these issues from the making of negative statements about the people who subscribe to one theological viewpoint or another. The former type of discussion is an exercise of freedom of expression; the latter is unacceptable. Whether we term the latter 'defamation of religions' . . . or something else, it is something we as a people must aspire to eradicate." (p. 55)

The difficulty with James' position, in my opinion, is that it is often impossible to distinguish criticism of a religion from criticism of those who adhere to that religion. To say "Christianity is evil" is different than saying "Christians are evil", but the distinction is a fine one in the tumult of everyday life and the popular press. Nor is the distinction likely to satisfy those whose "religious sensibilities" are fragile and easily offended. Further, history is full of new or fledging religious movements phrasing their beliefs in terms of attacks on religious leaders and their adherents: Martin Luther, for example, was scorching in his attacks on the Pope and Catholic priests, as were Jehovah's Witnesses in the first part of the twentieth century. Although I understand James' desire to suppress the sort of speech that can lead to hatred and the incitement of violence, the distinction he is attempting to draw here is simply not sustainable nor sufficiently protective of freedom of expression and religion.

The article also provides a brief history of the various U.N. resolutions, an extract from the text of the 2005 Commission for Human Rights resolution, and a short but helpful overview of the five major international law documents that protection freedom of expression.

Tuesday, July 6, 2010

"Defamation of Religions: The End of Pluralism?" (Blasphemy Literature Review)

L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory Int'l L. Rev. 69 (2009).

This article, written by a staff member of the Becket Fund for Religious Liberty, offers a nice summary of the history of the "defamation of religion" resolutions that have appeared in the United Nations over the past decade.

According to the article, the idea started in 1999 when Pakistan introduced a resolution against "defamation of Islam." The resolution was broadened to include all religions, and passed without difficulty in the U.N. Commission on Human Rights. Later attempts to pass the resolution, in both the Commission and the General Assembly, were successful but with diminishing support. In the past few years, the number of "no" and "abstain" votes have outnumbered the "yes" votes.

The author clearly opposes the "defamation of religion" resolution, arguing primarily that the legal concept of "defamation" is unworkable if applied to abstract concepts like ideas or religions, because truth is a defense to a charge of defamation, and what democracy-minded judge wants the burden of deciding if religious ideas are true or false? There's also an argument that the U.N. has illogically conflated racial discrimination and religious discrimination, but this point isn't sufficiently fleshed out.

On the whole, the article isn't a deep analysis of the problems with "defamation of religion", but it does provide a nice overview of how the resolutions evolved at the U.N.

Monday, July 5, 2010

Proposed SCC Reference on Blasphemous Libel

Due to an oversight on my part, my forthcoming article Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions doesn't include anything about an interesting little document I dug up in the archives a couple of years ago. The 1955 document is a two-page memorandum of a discussion within the Canadian Privy Council Office (Federal cabinet ministers) about a recent (1954) act of the Quebec legislature which prohibited "the making of abusive or insulting attacks against the practice of a religious profession or the religious beliefs of any portion of the population of the province." The Minister of Justice advised that the Act overlapped with the Criminal Code's prohibition on blasphemous libel and thus created confusion, and that perhaps both the federal and the provincial law should be sent to the Supreme Court of Canada as a reference question to determine their validity. The idea was shot down, however, because challenging Quebec legislation would make the Federal government unpopular in the province and a Federal-Provincial Conference was coming up shortly.

Such a reference, had it been made, may or may not have resulted in the Supreme Court holding that the Quebec act was ultra vires or preempted, but the Federal Criminal Code provision would presumably be on solid ground since it would fall squarely within the criminal law making power attributed to the Federal government (and neither the statutory Bill of Rights or the constitutional Charter of Rights and Freedoms had been enacted at that time in Canada).

A scan of the document, with the citation written at the top, is included below.

"Kant, Habermas and Democratic Peace" (Random Law Review)

Robert J. Delahunty and John Yoo, Kant, Habermas and Peace, 10 Chi. J. Int'l L. 437 (2010).

An article today that is more interesting than the title might indicate. It compares two theories of how global peace can (and should) come about.

First, the "world federalism" or "cosmopolitan constitution" theory, which envisions supra-national organizations (like the United Nations or European Union) becoming larger and stronger to the point where there exists, essentially, a unified global state with an overarching government capable of exercising supreme sovereignty. In such a state, war could only exist in the form of civil war between member nations, and the supreme sovereignty would presumably be powerful enough to quickly squelch any outbreaks of such conflicts through force or economic coercion. Under this theory, people would eventually become "citizens of the world" instead of (or in addition) to merely citizens of whatever nation-state they happen to be born within.

Second, the "democratic peace" thesis. This thesis has a strong empirical foundation based on the fact that extensive research has shown that democratic countries have never warred with each other. However, democratic countries do have a statistical propensity to launch wars with non-democratic countries. Thus, if democracy is spread to more and more countries around the world, the likelihood of those countries warring with each other would drop accordingly. Various explanations are summarized in the article for why democratic countries, so far at least, refuse to engage in war with other democratic countries.

The article strongly favors the second approach, and argues that the United States should aggressively promote democracy overseas to help guarantee its national security. Delahunty and Yoo reject the "world federalism" approach both out of concerns for nation-state sovereignty and an argument that the United Nations will never become a global guardian of democracy and human rights, since it allows non-democratic member states to influence policy (even on the Security Council). Other supra-national organizations, such as the International Court of Justice and the European Union, however, are not analyzed, nor do the authors address the fact that recent U.S. attempts at spreading democracy overseas (Afghanistan, Iraq) have certainly not been unqualified successes. John Yoo, of course, is the infamous supporter of torture during the Bush administration, and from this article and other sources, seems rather skeptical of international organizations.

As I mentioned, the article addresses an interesting issue. However, I'm not sure at this early stage if policy-makers necessarily have to choose between the "world federalism" and the "democratic peace" theses. Nation-states can continue to support and strengthen international organizations while simultaneously spreading democracy through diplomatic, economic, and (occasionally) military means.

The Random Law Review uses a combination of and HeinOnline to select a random law review article published in the past few years for discussion.

Blasphemous Businesses Okay in PA

Citing the Establishment Clause, a federal district court has struck down a Pennsylvania law that prohibited "blasphemy [or] profane cursing" in the names of corporations. The case involved a business that wanted to use the name "I Choose Hell Productions LLC" and was refused by state agencies.

Check the Religion Clause Blog for more information, and thanks to Religionlaw and the Legal Intelligencer for originally reporting the story.

Sunday, July 4, 2010

Welcome to Legal Heresy

Legal Heresy is a blog devoted to the legal and political history of prohibitions on blasphemy, witchcraft, freedom of religion, and more. It will also contain a sprinkling of more general legal developments that I happen to find interesting. Regular features will include:

* Blasphemy Literature Review (a developing annotated bibliography of the extensive literature on blasphemy)

* Random Law Review (discussion of a recent, randomly-selected law review article)

* Scholarship Retrospective (descriptions of my published works, why I chose to write about those particular subjects, and what I would change in retrospect)

* World Developments (occasional updates on how Canada and other countries are dealing with law and religion)

As always, please feel free to contact me at or comment on individual posts.