Thursday, November 6, 2014

Christian Couple Burned Alive by Mob in Pakistan After Alleged Desecration of Koran

CNN reports that a Christian couple in Pakistan were surrounded by a mob, beaten, and then thrown alive into a nearby kiln to die.  The mob formed after rumors spread that the couple had desecrated the Koran, which led to announcements through mosque loudspeakers.  No evidence has been found that a Koran was desecrated.  Police have arrested 40 in connection with the murders.

Pussy Riot Member Fails in Appeal

A member of the punk band Pussy Riot has had her appeal turned down by Russia's Constitutional Court, according to Religion Clause Blog.  Nadezhda Tolonnikova had earlier been convicted of disorderly conduct after a performance at a cathedral in Moscow.  She had appealed to the Constitutional Court, arguing that the conviction violated her freedom of expression, placed the internal rules of religious groups ahead of public law principles, and more.

Ireland to Have Referendum on Removing Blasphemy Prohibition from Constitution

According to Religion Clause Blog, the government of Ireland has agreed to hold a referendum on the question of whether the Irish Constitution's prohibition on blasphemy should be removed.  No date has been set for the referendum, nor is it known whether the blasphemy prohibition will be replaced with a prohibition on religious hatred.

Professor of Islamic Studies Assassinated Over Blasphemy Allegations in Pakistan

In the continuation of a long-going trend in Pakistan, assassins have murdered an individual accused of blasphemy.  Last month, the Chronicle of Higher Education reported that Muhammad Shakil Auj, Dean of Islamic Studies at a university in Karachi, was murdered by unidentified gunmen.  Auj was known as moderate in his views, and had previously reported being accused of blasphemy by co-workers.

Monday, July 28, 2014

Egyptian Teacher Gets 6 Month Sentence for Alleged Insults to Islam

Religion Clause has a post about a Coptic Christian elementary school teacher in Egypt who was sentenced to six months in jail for allegedly insulting Mohammed by saying that a late Coptic Pope was better than him.  An appeal is likely.

Wednesday, June 25, 2014

Who's Winning: Freedom of Religion or Theocracy?

Below is a column submitted to newspapers based upon my article Religion and New Constitutions: Recent Trends of Harmony and Divergence:

Who’s Winning: Freedom of Religion or Theocracy?

In historical perspective, the spread of freedom of religion over the past century is frankly startling.  Country after country has embraced constitutionalism, usually with a full bill of rights attached.  The UN Declaration of Human Rights and other international agreements have continued and accelerated this trend. 

Yet, every trend can give rise to resistance.  It should be no surprise that religious fundamentalism is on the rise in many countries with the goal of explicitly aligning church and state.  Fundamentalism is not limited to any one faith, although Islamist movements have received the most media attention.  The formal recognition of Islam in the new constitutions of Iraq and Afghanistan, for example, dismayed many who assumed that Western influence would lead to officially secular governments.

Where then does the world stand?  Is freedom of religion still on the rise or has theocracy turned back the tide?  As Larry Catá Backer phrases it, “is there now arising a theocratic constitutionalism in opposition to and competing with conventional constitutionalism for a place as one set, or the supreme set, of organizing principles for states?”

There are many ways to answer this question.  A common method in the scholarly literature is primarily anecdotal in nature and involves a discussion of one or more prominent examples including Iraq, Afghanistan, Libya, and Egypt.  This method usefully provides extensive detail on the history and textual provisions of particular constitutions; however, because it is anecdotal in nature, it is dangerous to generalize global trends from such a small sample of data.

In a recent article in the McGeorge Law Review, I approached the issue through another method: studying every new constitution adopted by a country around the world since the year 2000. The study sorted references to religion in new constitutions in the following ways: Preambular or Ceremonial; Establishment of Religion; Religious Freedom; Separation of Religion and State; Equal Protection of Religion.  Most constitutions had references in multiple categories.  By examining how each constitution dealt with the topic of religion, I was able to reach some tentative conclusions about the freedom versus theocracy question. 

The results are fascinating.  Of the forty new constitutions studied, all but two included an explicit guarantee of religious freedom.  All but five guaranteed non-discrimination on the basis of religion.  Perhaps most surprisingly, over half included a provision directly separating church and state or designating the government as “secular.”  Countries as diverse as Hungary, Niger, and Ecuador included anti-establishment provisions.

In contrast, although many constitutions included religious references in preambles and other symbolic provisions, only eleven of the forty erected an official state religion.  The majority of these were predominantly Islamic countries (Iraq and Afghanistan included), but two were Buddhist establishments (Thailand and Bhutan) and one country established multiple religions (Myanmar).  However, nine of those eleven constitutions with establishment provisions simultaneously guaranteed religious freedom.  How that conjunction works in practice is an interesting question that would require further, country-by-country research.

Formal constitutions aren’t everything, of course, and should never be taken as a substitute for the “on-the-ground” political reality in a particular country.  The surge of ISIS in Iraq is a good example.  As one indicator of global trends, however, the fact that most drafters of new constitutions chose to embrace freedom of religion and secularism over establishment should be encouraging to those of us who believe in the fundamental principles of liberal democracy.

Jeremy Patrick is a Lecturer in the University of Southern Queensland School of Law and Justice.

Tuesday, June 24, 2014

Reflections on Williams II

The High Court’s recent decision in the second Williams case is widely seen as a defeat for the Commonwealth.  The Court invalidated, for the second time, the federal government’s school chaplaincy program.  As many predicted at the time it was passed (just days after the first Williams decision was handed down), Parliament’s 2012 emergency legislation, the Financial Framework Legislation Amendment Act (FFLAA), was not enough to save the program.

In perhaps the most important respect, however, the Commonwealth won as it lost.  The High Court focused with laser-beam like precision on the chaplaincy aspect of the legislation and did not invalidate any other aspect of the FFLAA.  That means the 400+ other programs supported by it remain valid unless and until an individual plaintiff with standing challenges, one at a time, the constitutionality of the programs.  The Commonwealth would likely succeed on defending many of those programs given the High Court’s relatively liberal interpretation of the heads of legislative power in the Constitution; and even those programs that probably are not constitutional will not actually be struck down due to the lack of a challenge.  If one looks at the Commonwealth’s actions from a cynical perspective, the always-dubious emergency legislation bought two more years of chaplaincy and the potential for the vast majority of its other programs to remain in operation even if theoretically unconstitutional.

The simple truth is that the “loser pays” system in Australia makes it extremely rare for individuals to bring constitutional claims: the risk of owing tens or hundreds of thousands of dollars in legal fees is often too much for anyone besides unions, corporations, and wealthy individuals to take.  Citizen-activists like Ronald Williams (and, earlier, Bryan Pape) are thus the exception.  They should be applauded for their courage and willingness to further a vision of what the Constitution demands, even if we may disagree with them on the legal or political merits of their challenges.  In an ideal world, the High Court would make it easier for citizen-activists to bring constitutional claims by relaxing strict rules of standing and Parliament would encourage these attempts to enforce the rule of law by legislating, as the U.S. does in civil rights claims, that a non-vexatious plaintiff will never pay the government’s legal costs.

What will happen to chaplaincy itself?  As the High Court has stated that there is no plausible head of power to support it, no future federal legislation can directly fund it.  The possibility often floated is for the Commonwealth to use the Section 96 grants power to channel money to the states on the condition that they use that money for chaplaincy.  At first glance this seems like an easy workaround, but in truth it may create major complications and changes to how the chaplaincy program functions.  States would gain the power to negotiate over the terms, and it would be State administrative bureaucracies overseeing the spending.  Some states traditionally hostile to chaplaincy, like New South Wales, might refuse the money altogether.  Others might insist, despite the current federal government’s wishes, that the money be available for both religious and secular chaplains.  Perhaps one of the most intriguing possibilities is that state agencies could bypass the evangelical chaplaincy service providers that have gained an effective monopoly in states like Queensland.  If this occurs, the proportion of chaplains who are Christian (currently 99.5%) could become closer to that of the Australian population (61%); a clear win for religious diversity and pluralism in Australia.

The long-term effects of the Williams pair of cases remain to be seen.  Although it is clear that most forms of executive spending require independent legislative support, the precise scope of this general rule remains unclear and the government is sure to test it through a variety of clever schemes.  The disparity in reasoning in Williams I itself is problematic in understanding the boundaries imposed on executive spending: for example, much was made in that case on the role of the Senate and deliberative democracy, but all of that discussion  vanished completely in Williams II.  To my mind, the only safe bet is that the Williams cases will linger over Commonwealth spending like a dark and cryptic shadow for years to come.

Thursday, June 12, 2014

Satanic "Black Mass" Stirs Controversy at Harvard

Salon had a good commentary a few weeks ago on the controversy that erupted when the Satanic Temple, a national organization, planned to perform a historical re-enactment of a "Black Mass" to one of Harvard Extension School's student clubs.  According to organizers, the event was intended to include an educational lecture on historical views on Satanism and the intentional use of blasphemy to resist dominant religions.  After a public outcry that included condemnation by Harvard's president and protests by Catholic organizations, the event was moved off-campus due to concerns that the venue could not hold everyone who planned to attend.

Ahmadis, Vigilante Justice, and Blasphemy in Pakistan

On May 16th of this year, Religion Clause Blog had a post that provides yet another example of vigilante justice and the problems faced by the minority Ahmadi faith in Pakistan.  After some Ahamadis asked a shopkeeper to remove a sticker that they felt was offensive to their religion, the shopkeeper had them arrested for blasphemy.  A teenage boy then entered the police station and shot one of them dead.

Tattoo of Buddha Gets British Tourist Deported from Sri Lanka

Catching up on some older stories today.  In April, Religion Clause Blog had a post about a British tourist who was deported from Sri Lanka because she had a tattoo of Buddha on her arm and was "hurting the religious feelings" of those who saw it, including two taxi drivers.

Wednesday, April 30, 2014

Ontario Allows Students to Opt Out of All Religious Activities in Catholic Schools

An interesting column in the Toronto Star last week discussed the recent ruling by an Ontario trial court that a student attending a publicly-funded Catholic school could opt out of all religious activities.  The ruling was based on an interpretation of the province's Education Act.  The school argued that the student should be required to attend Catholic services held in the school's auditorium and other religious activities, even as it reluctantly allowed the student to opt out of religious instruction courses.  The case is an important one for the future of publicly-funded Catholic schools in Ontario, which have long been a site of controversy.  The judgement will presumably be appealed.

Death Sentence for "Blasphemous" Christian Couple in Pakistan

Pakistan continues to be a hotbed of blasphemy prosecutions.  A few weeks ago, Religion Clause Blog posted about a Christian couple charged with sending blasphemous text messages.  The couple were convicted and sentenced to death, even though they asserted that the phone the texts were sent from had been missing for a month and that the texts were written in a language they could not speak or write.  An appeal is planned.

Thursday, April 17, 2014

Is Section 116 a "right" or merely a "limitation on . . . legislative power"?

I wrote the following as a footnote to a paper on witchcraft, fortune-telling, and what I call "the new spirituality."  After the footnote got longer and longer, I realised I needed to excise it and change the text to avoid the dispute entirely.  Still, I think it's an important topic and one I hope to revisit in the future.
One can quibble about whether Section 116, the Australian Constitution’s provision regarding religious freedom, should be labelled a “right.”  See, e.g., Kruger v. Commonwealth, (1997) 190 CLR 1, 124-25 (per Gaudron, J.) (“It makes no sense to speak of a constitutional right to religious freedom in a context in which the Constitution clearly postulates that the States may enact laws in derogation of that right.  It follows, in my view, that s. 116 must be construed as no more than a limitation on Commonwealth legislative power . . . it cannot be construed as impliedly conferring an independent or free-standing right”).  However, styling Section 116’s religious freedom guarantee as a “limitation on . . . legislative power” rather than a “right” is illogical.  The wording of Section 116 (“The Commonwealth shall not make any law for . . . prohibiting the free exercise of any religion”) and the wording of the First Amendment of the U.S. Constitution (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) are both expressed as direct restraints on legislative power, but the latter has always been understood to confer an individual right to relief.  Further, Justice Gaudron’s reference to Section 116 not restraining the States is irrelevant to whether Section 116 is a “right” or not; rights always prohibit some actors from doing something, but not other actors from doing the same thing.  The First Amendment was held not to restrict state action until the twentieth century; the rights in American state constitutions do not limit the Federal government; domestic constitutional rights instruments rarely, if ever,  provide relief against the actions of foreign governments; few rights documents (the Quebec Charter excepted) provide claims for relief from non-governmental actors at all.  In Australia, as in every jurisdiction that has the equivalent of a “standing” doctrine, a claim for relief will always be brought by a particular organisation or association who asserts that its religious beliefs or actions have been burdened.  It thus makes little sense to talk about a restraint on interference with the free exercise of religion in the absence of an acknowledgement that without individuals (and the associations) they form, there is no exercise of religion to be prohibited in the first place.  Indeed, styling a constitutional provision as a “right” versus a “legislative prohibition” likely goes more to what remedy should be made (invalidation of a statute or a “constitutional exception”) than whether a claim for relief should be allowed at all.

Wednesday, April 9, 2014

"The Spiritual Revolution: Why Religion is Giving Way to Spirituality"

Paul Heelas & Linda Woodhead, The Spiritual Revolution: Why Religion is Giving Way to Spirituality (Blackwell, 2005).

This is a very interesting book, written by scholars of religion, on the topic of whether traditional religion is giving way to those who consider themselves "spiritual but not religious" (known as SBNRs in the literature).  SBNRs, often associated with the New Age movement, might associate with a stunningly wide-variety of practices and beliefs: yoga, crystal magic, homeopathy, tarot, holistic medicine, and more.  As Heelas & Woodhead note, "Even a cursory glance around the local bookshop or a stroll around the shopping centre leaves little doubt that Christianity has a new competitor in 'the spiritual marketplace'" (p. 1)

Helpfully, Heelas & Woodhead fit the rise of SBNRs into a broader social context: that of the rise of subjectivism in general.  Subjectivism is a turn towards individualism, and "has to do with states of mind, memories, emotions, passions, sensations, bodily experiences, dreams, feelings, inner conscience, and sentiments" (p. 4).  The rise of subjectivism can be noted in everything from self-help books to motivational speakers and more, and has a key element that "[t]he subjectivities of each individual become a, if not the, unique source of significance, meaning and authority". (p. 4)  The authors contrast this "subjective-life" with "life-as" culture, which emphasizes external authority, hierarchy, and role-recognition.  Traditional religion is strongly related to "life-as" culture, whilst the new move towards spirituality is strongly related to "subjective-life" culture.

In order to gauge the relative strength and future trends of traditional religion versus the new spirituality, Heelas & Woodhead study what they call the "congregational domain" (traditional religion) versus the "holistic milieu" (SBNRs) in a single small English town (Kendal) of about 27,000 people.  Through an extensive, multiyear project, the authors and their team of researchers gauged the extent of activities taking place in the congregational domain and the holistic milieu.  They reached some very interesting conclusions.  First, and contrary to my own perception, they found very little overlap between participants in the two areas: only 4% of participants in the congregational domain also participated in the holistic milieu (p. 31-32), and only 16% of persons active in the holistic milieu were regular churchgoers (p. 48 n.10).  I found this surprising based on other material I've read which argues that a "cafeteria" spirituality is common, where many people, including regular churchgoers, have picked from the menu of New Age beliefs.  "In Kendal at least, such a  post-modern condition is scarcely in evidence.  Instead, the congregational domain and holistic milieu constitute two largely separate and distinct worlds."  (p. 32)    Second, the authors were able to assess the regular strength of each area: they found that participants in the congregational domain outnumbered those in the holistic milieu by about 5-1.  No overwhelming "spiritual revolution" has taken place yet.  Third, however, they found that trends clearly favour the holistic milieu--not only has there been a dramatic rise in the area in just the past few decades, but there has been a slow but gradual decline in the congregational domain.  Further, the holistic milieu has gained extensive visibility in general culture, as seen by books, classes at gyms, newspaper columns, etc.  It's quite conceivable that in just a few decades, participants in the holistic milieu will exceed those in the congregational domain.

There's a lot of other good material in the book, and I highly recommend it.  The law review article I'm working on now is about what the rise of the "holistic milieu" means for our understanding of religious freedom.

Monday, April 7, 2014

"Noah" Banned as Blasphemous

Catching up on some old news, Religion Clause Blog has a brief post about the recent movie Noah being banned in Bahrain, Qatar, and the United Arab Emirates for offending Islam.

Tuesday, March 25, 2014

Comic Book Banned in Malaysia

A story combining two of my favourite things: comic books and blasphemy!  The always-useful Religion Clause Blog reports that Malaysia has banned an issue of a comic book titled "Ultraman the Ultra Power" (a title I've never heard of) because of a line connecting the titular super hero to Allah.

Forthcoming Article in University of Queensland Law Journal

I'm happy to report that the University of Queensland Law Journal will publish my article Religion, Secularism, and the National School Chaplaincy and Student Welfare Program.

Wednesday, March 12, 2014

"To Ban or Not to Ban Blasphemous Videos"

Evelyn M. Aswad, To Ban or Not to Ban Blasphemous Videos, 44 Georgetown Journal of International Law 1313 (2013).

This article discusses the worldwide outcry over the Innocence of Muslims video and the calls by many outside (and some inside) the United States to ban it.  Aswad's goal, specifically, is to examine the International Covenant on Civil and Political Rights (to which the U.S. is a signatory) to determine whether that document requires members to suppress material like the video.  The key provision at issue is Article 20(2) of the ICCPR, which states that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."  The U.S. filed a reservation to this section when it signed the ICCPR, stating that it would not suppress material protected by the First Amendment.

To my mind, this answers the question of any legal obligation the U.S. might have at international law, but Aswad takes the analysis a step further and argues that, even without a reservation, the Convention does not require suppression.  Through a textual analysis of the provision, she argues that Article 20(2) is focussed on advocacy of religious hatred that constitutes incitement, and that "[i]t would not constitute 'advocacy' for a speaker adhering to religion X to simply criticize, question, mischaracterize or ridicule religion Y without the intent to promote hatred against members of religion Y." (p. 1319)  Thus, in order for Article 20(2) to require the suppression of the Innocence of Muslims video, Aswad concludes that evidence would have to be adduced that its maker had
the intent of promoting hatred towards Muslims.  Further, she argues that the use of the word "incitement" in Article 20(2) is rather vague, as it does not disclose the degree of proximity needed between the act in question and the result which the section hopes to prevent (p. 1319-20).

Another interesting aspect of this short paper is a summary of the drafting history of Article 20.  Aswad concludes that "the point of Article 20(2) was to prohibit expression where the speaker intended for his or her speech to cause hate in listeners who would agree with the hateful message and therefore engage in harmful acts toward the targeted group.  There is no indication in the negotiating history that Article 20 was intended to prohibit speech about a targeted group that would offend the feelings of members of that group." (p. 1322).

Tuesday, March 4, 2014

Scooped: Two New Articles on Fortune-Telling and Religious Freedom

Two new articles on fortune-telling and religious freedom have appeared on SSRN (thanks to Religion Clause Blog for the pointer.  First, Nicole Jones has written Did Fortune Tellers See this Coming? Spiritual Counseling, Professional Speech, and the First Amendment.  Second, Mark Movsesian has written Defining Religion in American Law: Psychic Sophie and the Rise of the Nones.

These comes as I'm in the middle of writing my own article on fortune-telling, witchcraft, and religious freedom, so in some ways I've been scooped.  But I plan to continue forward, as I've been collecting materials on the topic for several years and I'm sure my article will take a different approach than these two (in part, because I'll be incorporating Canadian and Australian materials).  I've decided to finish my first draft and then read the new articles and discuss them in a new section.

Tuesday, February 25, 2014

Recent Blasphemy Stories

A few stories involving blasphemy have caught my eye over the past month.

*  Religion Clause Blog has a story about a British citizen of Pakistani origin named Muhammad Asghar who has been convicted and sentenced to death in Pakistan for blasphemy.  The man wrote letters to several people, including police, claiming to be a prophet.  The man has a history of mental illness.  According to the report, Pakistan has a de facto moratorium on the death penalty and so an actual execution is unlikely (his conviction is also the subject of an appeal).

Volokh Conspiracy discusses a story from The Guardian about a Greek man who has been convicted of blasphemy and sentenced to 10 months in prison for comparing a revered priest to a pasta dish on a Facebook page.  The conviction is also under appeal.

*  A very interesting article in The New York Times about Penguin Books India pulping its entire run of a scholarly book about Hinduism in response to a lawsuit claiming the book was "malicious", "dirty", and "perverse."  The decision is seen as a sign of concession to growing right-wing radicalism in the country.

Thursday, February 13, 2014

Criminal Code of Canada Section 365: Witchcraft & Fortune-Telling

Here is the text of Section 365 of the Criminal Code of Canada.  The law is still valid, and is the subject of the research paper I'm currently working on.

Criminal Code of Canada  (valid as of Feb. 11, 2014)

Pretending to practise witchcraft, etc.
365. Every one who fraudulently

(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what manner anything that is supposed to have been stolen or lost may be found, 

is guilty of an offence punishable on summary conviction.

As an aside, I especially like the phrase "crafty science", as I've never seen that before.

Tuesday, February 11, 2014

"Brazil, Blasphemy, and Free Speech: Why the United States Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech"

Stuart Vincent Campbell, Brazil, Blasphemy, and Free Speech: Why the United States Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech (unpublished working paper available on SSRN).

This interesting paper is written in the context of the controversy and protests created by the dissemination of the Innocence of Muslims video and the resulting calls from some quarters for the United States to take aggressive action to forbid anti-religious speech.  Campbell accurately notes that those opposed to blasphemy laws often point to countries like Pakistan as examples of the harm such laws cause.  However, "[i]nstead of looking to small homogenous nations in the Middle East that bear almost no cultural or legal resemblance to the United States, this note turns to the empirical example of Brazil--a large heterogeneous democracy that in some ways bears a surprising cultural and historical resemblance to the United States." (p. 3)

The paper provides good background on the Innocence of Muslims video (pp. 5-6) and an overview of the history of blasphemy laws in the U.S. (pp. 11-15) before moving on to what I consider the most useful aspect of the paper: a discussion of how blasphemy laws are used in Brazil.  Campbell argues that although Brazil has a constitutional guarantee of freedom of speech, judges allow blasphemy laws to operate by always framing the issue as the need to balance the right to freedom of speech against the right to freedom of religion.  "Brazil suppresses blasphemous speech not based on the desire to establish a state religion, but rather based on legal principles that allow judges to prioritize religious respect and de-prioritize 'offensive' speech."  (p. 4)  Constitutional interpretation is very different in Brazil than in the U.S., Campbell explains, and the result is that much speech is suppressed in a problematic way.  Campbell takes a strong position against the adoption of blasphemy or blasphemy-like laws in the United States.

This is the first paper I've seen on how blasphemy laws operate in Brazil, and it serves as a good addition to the literature.

Thursday, January 30, 2014

"R v. Labrosse" (1987)

R v. Labrosse, [1987] 1 S.C.R. 310.

Labrosse is the only case I'm aware of where a charge under a witchcraft or fortune-telling statute reached a country's highest court.  Unfortunately, it's rather brief and not extremely helpful in understanding the scope of the law.

The case involves a woman who told the fortune of a police officer for her normal fee of $ 15.  She was charged with violating Section 323(b) of the Criminal Code, which states in part that "Everyone who fraudulently . . . undertakes, for a consideration, to tell fortunes . . . is guilty of an offence punishable on summary conviction."  At trial, the fortune-teller claimed that she actually had special powers to tell the future.  The trial judge convicted her nonetheless, stating that he didn't believe that she believed that, and that even if she did believe it, it was irrelevant to the charge.

The Supreme Court was thus asked to decide whether Section 323(b) allowed for a defence of "honest belief."  That is, does a fortune-teller "fraudulently" tell fortunes if he or she sincerely believes they have a supernatural power to do so?  The Court, however, disposed of the case without ruling conclusively on the issue, stating that because the trial judge made a factual finding that "[t]he accused knows full well that she has no basis for her claim to be able to predict what will happen in people's future" then "the defence of honest belief is not open on the facts of this case."

From this, however, (and not having read the trial court's ruling) it's not clear to me that the trial judge actually found that the defendant did not sincerely believe she could predict the future.  His statement that she knows "she has no basis for her claim" sounds more like a finding that she had no logical or evidentiary foundation to support such a belief as opposed to a factual finding that she was lying about her belief.  Thus, the trial judge's ruling was not on point to the question of whether the statute allows for an honest belief defence.  This ambiguity, however, is not noticed or discussed by the Supreme Court.

Tuesday, January 28, 2014

"Fortune-Telling and Mens Rea"

D. Aikenhead Stroud, Fortune-Telling and Mens Rea, 37 L. Q. Rev. 488 (1921)

Stroud's article addresses what I think is a crucial issue when it comes to regulating fortune-telling and other paranormal or religious practices (such as faith healing, dowsing, cleansing a house of evil spirits, etc.) that involve the exchange of payment for a service in which there is the potential for fraud.  That issue is whether the good faith of the practitioner is relevant; that is, if the psychic medium, fortune teller, exorcist, faith healer, etc., sincerely believes they have a supernatural power and are exercising it to the best of their ability, should this be a defence to a charge under the variety of statutes that have been used to prosecute such individuals in the past?

Stroud's article discusses a then-recent case that squarely addressed the question in the context of the English Vagrancy Act of 1824, which was the law often applied in this context.  The case, Stonehouse v. Masson, [1921] 37 T.L.R. 621, stands for the proposition that the good faith belief of the defendant is irrelevant to a charge of "pretending or professing to tell fortunes" under the Act.  Stroud states that "[t]he real ground of decision was expressed by Darling J., who said he had 'come to the conclusion that the Legislature has decided that fortune-telling and professing to tell fortunes was a fraud, and that it was a deception in itself, and that quite independently of the question whether the person who told the fortune believed that that she could tell fortunes or not.'"  (p. 488-89)

Thus, Stroud (and the Court in Stonehouse) argue that the mens rea requirement of a statutory crime is only to intentionally do that which is forbidden by the statute.  They thus distinguish general mens rea from the concept of specific intent, and Stroud concludes "[w]hat the law prohibits is any profession of occult powers of divination, whether sincere or insincere, and the requirement of mens rea is satisfied by an intentional infringement of that prohibition, without any fraudulent or deceitful intention." (p. 488-89)

This is an old article discussing an old case in the context of a very particular old statute.  Nonetheless, it ties in nicely to the article I'm currently writing on whether criminal bans on witchcraft and fortune-telling comport with modern freedom of religion guarantees.

Thursday, January 23, 2014

"Time for Australia to abandon blasphemy laws?"

Several months ago, media network SBS ran a long story on World News Australia Radio titled "Time for Australia to abandon blasphemy laws?"  The story noted that some countries have recently decriminalized blasphemy, while in others, particular where Islam holds sway, blasphemy prosecutions continue.  Brief interviews with experts in the field, including Dr. Helen Pringle (UNSW), Professor Gary Bouma (Monash), and myself are included in the story.

Wednesday, January 22, 2014

New Egyptian Constitution Approved by Voters

Religion Clause Blog notes that the new Egyptian Constitution was overwhelmingly supported by voters in last week's referendum.  This post on the same site includes a rough translation of some of the religion provisions of the new Constitution.  It establishes Islam as the official religion of the country, but does contain a freedom of religion guarantee.

Tuesday, January 21, 2014

"To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy"

Gillian Steward, "To Publish or not to Publish? The Canadian News Media and the Danish Cartoon Controversy" in Janet Keeping, et al. (eds), Deal with it!  Free Speech, Ethics and the Law in Canada (Sheldon Chumir Foundation for Ethics in Leadership, 2013).

Steward's article provides a nice summary of the reaction of the Canadian newspaper and broadcast press to the worldwide controversy over the famous Jyllands-Posten Muhammed cartoons.  Steward notes that in Canada, no mainstream media organization was willing to show the cartoons while reporting on the controversy.  Steward provides extracts from editorials by Canadian newspaper and t.v. news stations about why they didn't show the cartoons, and summarizes them nicely:

"The rational provided by television and newspaper executives regarding their decision not to publish the cartoons emphasized respect for religion and other cultures as the main reason.  The discourse reveals that the media executives did not want to offend members of the audience.  It also emphasized Islamic belief that it is disrespectful or blasphemous to publish images of the prophet Mohammed, even though Canada is a secular society.  None of the television or newspaper executives explained why the cartoons had been published in the first place or what issues they raised for citizens of a liberal democracy as [editor] Flemming Rose of the Jyllands-Posten had done when the cartoons were originally published.  Although all the news media executives cited freedom of speech or the press as vital to democracy they opted to give respect for religion a higher priority in this situation.  And yet, in their own code of ethics, freedom of expression tops the list."  (p. 91)

Two small publications, the Jewish Free Press and The Weekly Standard were the only members of the media that did reprint the cartoons, and Steward also includes extracts from their editorials explaining why.

Overall, she concludes:

"In both Canada and the United States freedom of expression did not win the day during the cartoon controversy.  Instead, mainstream media executives employed a different discourse, one which emphasized control, social harmony and respect.  In many ways, it was a discourse that seemed closer to the ideals of Islamic media codes of ethics than those of a liberal democracy.  It was left to smaller, more vulnerable publications to exercise freedom of expression and publish the cartoons." (p. 93)