Thursday, February 24, 2011

Saguenay Mayor Fights for Prayer at Council Meetings

On Friday, National Post reported that the mayor of Saguenay, Quebec, is seeking donations from the public in order to fund his appeal of a human rights tribunal decision that forbade him from opening council meetings with prayer and displaying a crucifix in the council meeting room. Mayor Jean Tremblay, described in the article as a devout Catholic, has opened a toll-free telephone line for donations.

Thursday, February 17, 2011

Austrian Woman Convicted of Blasphemy

According to reports, a woman has been convicted under a provision of the Austrian penal code that prohibits "vilifying religious teachings" for statements made during a lecture in which she allegedly intimated that the prophet Muhammed was a "pedophile" for having married and consummated a relationship with a child bride. The court fined the woman 480 Euros, and she plans to appeal. See Volokh Conspiracy and The Corner for more.

UPDATE (Jan. 18, 2012): The defendant, an activist named Elisabeth Sabaditsch-Wolff, lost her appeal before the Provincial Appellate Court in Vienna. Sabaditsch-Wolff has said she will further appeal to the European Court for Human Rights. A lengthy post with full details is on Volokh Conspiracy.

Tuesday, February 15, 2011

"Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America"

Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (New York: Random House, 2008).

Waldman's book is a balanced, thoughtful, and well-written discussion of the "founding fathers" of the U.S. Constitution and how their diverse and fascinating views on religious freedom have often been skewed by one side or another in the culture wars. Founding Faith alternates chapters between a clear, concise story of the evolution of religious freedom in colonial America with descriptions of the spiritual journeys and beliefs of Washington, Adams, Jefferson, Madison, and Franklin. Waldman argues convincingly that the founding fathers were not atheists or deists; they believed in a God, believed that God often interceded in worldly affairs, and believed that religion could be a force for good. On the other hand, Waldman makes it clear that the founding fathers were far from orthodox Christians, were often accused of being irreligious, and were quite cognizant of the dangers of government and religion becoming intertwined.

Waldman shows how easy it can be to take a quote out of context here or there to prove almost anything about their beliefs, but a careful, nuanced view often complicates the talking points used by separationists and accomodationists. Further, as Waldman notes, "In the eighteenth century, it did not follow that one's piety determined one's views about separation of church and state. Being pro-religion didn't mean one was anti-separation. And being pro-separation didn't mean one was anti-God. In fact, the culture wars have so warped our sense of history that we typically have a very limited understanding of how we came to have religious liberty." (p. x)

Perhaps most importantly, Waldman shows how the "original intent" of the framers is both difficult to discern and of questionable value in resolving modern problems. "It's time we stopped using the Founders as historical conversation stoppers--as in I'm right and you can tell, because the Founding Fathers agree with me. Instead, we must pick up the argument that they began and do as they instructed--use our reason to determine our views." (p. 196)

An impressive book, one definitely worth picking up for anyone interested in the history of religious freedom in the United States.

Monday, February 7, 2011

Annotated Criminal Code Commentary on Canada's Blasphemy Provision

This brief post summarizes what some of the authors of annotated versions of Canada's Criminal Code have had to say about the country's statutory prohibition on blasphemous libel.

* Arthur W. Rogers, Tremeear's Annoated Criminal Code, 1929 (Calgary: Burroughs & Company, Ltd) (4th ed. 1929) at 222. Rogers notes that this provision first appeared in Section 170 of the original 1892 Criminal Code. The rest of his annotation consists of statements drawn from traditional English legal maxims on blasphemy law, citing cases such as Bradlaugh, Ramsay & Foote, and Bowman: "Publications which in an indecent and malicious spirit assail and asperse the truth of Christianity or of the Scriptures in language calculated and intended to shock the feelings and outrage the belief of mankind are punishable as blasphemous libels. But if the decencies of controversies are observed even the fundamentals of religion may be attacked without the right [sic] of being guilty of blasphemous libel. No justification of a blasphemous libel can be pleaded nor is argument as to its truth permitted." Citations, without discussion, are also given to some Canadian authorities such as R. v. Kinler and the E.J. Murphy's annotation to R. v. Sterry.

* A.E. Popple, Snow's Criminal Code of Canada (Toronto: Carswell) (5th edition 1939). Popple's annotation is much shorter than Rogers. He states that the definition of the offense is given in Rahard and Gott, and provides the same quotation as the first sentence of the rule quoted above. Popple also states that "The offence may be committed by written matter as well as by spoken words", citing Gott.

* Edward L. Greenspan & Marc Rosenberg, Martin's Annual Criminal Code 2006 (Aurora, Ont.: 2006). This annotation cross-references the blasphemous libel offense with the offenses of defamatory and seditious libel. It notes that "the term 'blasphemous libel' is not defined in the section" and concludes that "[t]his rather archaic section, if used, would, in all likelihood, be challenged under the Charter."

* Alan D. Gold, The Practitioner's Criminal Code, 2007 Edition (Markham, Ont.: 2006). Gold notes that "[t]his is a straight indictable offense. An accused can elect the mode of trial." (citing s. 536(2)). He also states that "[i]f ever prosecuted this section would be unlikely to survive a Charter challenge."

Friday, February 4, 2011

"The Curious Persistence of Blasphemy" in the Florida Journal of International Law

I'm happy to report that my article The Curious Persistence of Blasphemy has been accepted for publication in the Florida Journal of International Law.

Thursday, February 3, 2011

Death Sentence Handed Down for Pakistani Blasphemer

A court in Pakistan's Punjab province has handed down a death sentence for a man accused of having blasphemed against the companions of the Prophet Muhammad. See Religion Clause Blog for more.

Tuesday, February 1, 2011

"Preventing New Cartoon Crisis"

Robert O. Freedman, Preventing New Cartoon Crisis, (Baltimore) Jewish Times (5 May 2006).

This short op-ed contains perhaps the most surprising and nearsighted response to the Danish Cartoon Controversy I've seen in the Western press. According to Freedman, "to prevent a future crisis of this type from erupting, what is needed is a 'code of conduct' for the newspapers and other media in both the Western and Muslim worlds. All governments must agree that the negative depiction of religion is 'out of bounds,' and penalties should be imposed on those who violate the code of conduct." In order to distinguish between "legitimate criticism" and "negative depiction of . . . religion", Freedman then proposes "the creation of an International Religious Court, composed of Christian, Muslim and Jewish clergymen . . . . Anyone feeling that his or her religion was insulted could appeal to the International Religious Court for a ruling on the matter, and the court would then determine whether a penalty should be invoked." Freedman then goes on to explain that the government with authority over the wrongdoer would have the responsibility to carry out the International Religious Court's punishment.

Although Freedman acknowledges the difficulty in finding a single Christian, Jew, and Muslim to represent the vast diversity within these particular religions on such a court, he overlooks several obvious problems. What about all the other religions in the world--wouldn't they deserve representation? What about non-religious individuals? How would such a court, composed purely of clergymen, reconcile international human rights guarantees of freedom of speech with the alleged "negative depiction of religion"? How could domestic nation states implement their findings without running afoul of domestic constitutional guarantees of freedom of speech? Is "negative depiction of religion" an intelligible and worthy standard to begin with? Although Freedman's desire to prevent another controversy is understandable, the problems with this proposal multiply the more one thinks about it.