Monday, July 25, 2011

"Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment"

Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Cal. L. Rev. 297 (1988).

Post's article is ultimately concerned with resolving the question of whether pornography can be legitimately banned under the free speech guarantee of the American Constitution. Although this topic is outside the scope of Legal Heresy, Post sets up an interesting theoretical framework to analyze the pornography issue through an examination of English and American blasphemy law. Post's thesis is that moral issues in countries composed of heterogeneous groups can be resolved in three ways: "The law can place the authority of legal sanctions behind the cultural perspectives of a dominant group; or it can foster a regime in which diverse groups can escape from such domination and maintain their distinctive values; or it can ignore group values and perspectives altogether and recognize only the claims of individuals. I shall call these three options, respectively, assimilationism, pluralism, and individualism." (p. 299) Post explains that legal regimes are rarely uniform in approach across various issues, and then goes on to note that the approach taken to a particular legal issue can evolve over time.

In a discussion on the history of blasphemy law in England, for example, Post argues that "[u]ntil quite recently . . . the crime of blasphemy was a paradigmatic example of assimilationist law . . . [since] Christians were the dominant group in England, and blasphemy made Christian values 'parcel of the laws' in England." (p. 307) However, Lord Scarman's opinion in the famous Lemon case in 1979 was an attempt to ground the justification for blasphemy laws in a pluralist foundation: "[Scarman] wanted to use the Lemon case as a platform to urge that the common law be changed by legislation to protect the sensibilities of all religious groups." (p. 312) Post critiques the idea that blasphemy laws can be justified by reference to pluralist values, noting that different religious groups respond to criticism and offense in vastly different manners. (p. 313)

In his discussion of the history of blasphemy law in the United States, Post notes that, despite constitutional guarantees of free speech and freedom of religion in State constitutions, courts almost uniformly upheld blasphemy laws until the late 1960s. Post argues that the original American judicial defense of blasphemy laws were on the same assimilationist lines as that of English courts, but a major change occurred when the Cantwell case developed the First Amendment on individualistic, not pluralist or assimilationist lines.

In conclusion, Post's article provides a fruitful way to organize and understand the assumptions underlying the various justifications for prohibiting blasphemy that have been offered over the last several decades.

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