Tuesday, June 26, 2012

"Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws"

Helen Pringle, Regulating Offence to the Godly: Blasphemy and the Future of Religious Vilification Laws, 34 University of New South Wales Law Journal 316 (2011)

This short article discusses the turn in Australian law away from "blasphemy" laws and towards "religious vilification" laws.  

Pringle persuasively argues that, as there has not been a successful prosecution for blasphemy since 1871 (p. 319), "[w]here ostensibly blasphemous acts are the subject of prosecution in Australia, they are charged not as blasphemy but instead as offensive conduct or language.  That is, in both legal and cultural terms, blasphemy has generally been absorbed into the category of obscenity or offensiveness."  (p. 321)  

A second major argument in the article, and I think a more controversial one, is that religious vilification laws are not sui generis, and instead should stand or fall on exactly the same terms as racial vilification laws:  "So while blasphemy laws do not appear to have any contemporary justification, religious vilification laws have as much (or as little) validity as racial vilification laws." (p. 317)  Pringle argues that the common way in which critics of religious vilification laws attempt to distinguish them from racial vilification laws is incorrect: "Making such a distinction rests on the assumption that religious beliefs are matters of voluntary choice, or at least that they can be held at 'arm's length', rather than being constitutive of the believer, that is, a part of his or her identity that is as fixed, unchosen and indelible as race is often portrayed as being.  Religious bearing . . . is not necessarily so different from racial identity as to merit completely asymmetrical treatment[.]" (p. 330)

Third, Pringle argues that vilification laws are best understood, and perhaps theoretically defensible, when closely linked to the concept of discrimination rather than the concept of offense.

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