Canada's Blasphemous Libel Law Repealed!

Coming out of hibernation to share the news that Canada has finally repealed its law against blasphemous libel!  I spent several years researching and writing about the history of blasphemous libel in Canada for my Ph.D. dissertation and several law journal articles, and it's gratifying to think I may have contributed, in some small way, to the law's repeal.

"Banning race discrimination is the conservative choice" [Off-Topic]

I realize this is off-topic for the blog, but I don't have anywhere else to put it as it was rejected by The Australian.
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Recent columns about indigenous recognition in the pages of The Australian from self-described “constitutional conservatives” have lambasted the proposal to ban race discrimination in the Australian Constitution, labelling it a “radical” idea sure to lead to “judicial adventurism.”  In reality, banning race discrimination is the smart, safe, and conservative choice when it comes to constitutional reform.  Here are four reasons why.

First, the concept of banning race discrimination is not new, nor it is radical.  The American Constitution banned race discrimination in 1868.  A full decade ago, a breathtaking 97 % of written constitutions globally contained a specific ban on race discrimination or a general guarantee of equality.  We all know that Australia is now the only democracy that has a written constitution but lacks a true bill of rights.  If anything is “radical,” it is the current Australian approach.

Second, there are already, and always have been, some rights in the Australian Constitution: a right to just compensation for property taken by the government, a right to freedom of religion, a right to trial by jury, and more.  There’s even already a right to be free from discrimination, but only on the basis of state residency.  If “judicial adventurism” by “activist judges” interpreting rights were going to be a problem in Australia, it could have and would have manifested over the past 114 years.

Third, the decisions of our elected representatives in Parliament deserve our respect, but not our blind obedience.  Does the Parliament of Australia have a perfect and unblemished record when it comes to matters of race?  We know the answer because we know our history.  Safeguards are necessary in a democracy, just as having health insurance is smart even when we’re not yet sick.

Finally, we should not hesitate to declare this truth as self-evident: adversely discriminating against someone on the basis of their skin colour or their ethnic heritage is a grave moral wrong.  Full stop.  Instead of asking why race discrimination should be banned in the Constitution, we should always ask the opposite.  Why would we ever think that government needs to make people worse off because of their race?  Somehow, almost every other country in the world manages to get by while constrained by a formal constitutional ban on race discrimination.  Australia can too.

Changing a constitution can have ramifications.  We should always be cautious and deliberate.  But we need not give into paranoia, and we shouldn’t hesitate to do what is right.  Banning race discrimination in the constitution is a tried, tested, and responsible way to balance the democratic voice of the majority with the fundamental rights of the minority.

Jeremy Patrick is a Lecturer at the University of Southern Queensland School of Law and Justice and co-editor of a forthcoming book on the recognition referendum.

Three Debates on Faith and Democracy

Earlier this month, I had the pleasure of engaging in a debate with my USQ colleague Dr. Vito Breda.  We looked at three topics involving faith and democracy:  whether there should be a ban on wearing the burqa in public, whether religious arguments belong in the debate over same-sex marriage, and whether democracies could still thrive if adherence to mainstream religions dwindled.  You can watch the entire debate or parts of it using the links below:

All Debates

Title: "Three Debates on Faith and Democracy"

Description:  "Jeremy Patrick and Vito Breda debate whether Australia should ban the burqa, whether religion is relevant in the debate over same-sex marriage, and whether liberal democracy can thrive if organised religion declines."

Debate 1

Title:  "Should Australia ban the burqa?”

Description:  "Jeremy Patrick and Vito Breda discuss whether Australia should ban the burqa.  Topics include feminism, public security, and the link between identity and political expression."

Debate 2

Title:  "Does religion belong in the same-sex marriage debate?"

Description:  "Jeremy Patrick and Vito Breda discuss whether religious arguments belong in the debate over the upcoming Australian plebiscite on same-sex marriage."

Debate 3

Title:  "Can democracy thrive if mainstream society rejects religion?"

Description:  "Jeremy Patrick and Vito Breda discuss the decline of religion in Western Europe and what it means for democracy."

Chronology of English Statutes & Cases on Fortune-Telling

Although this blog is officially on hiatus, my work for my book on the criminalization of witchcraft and fortune-telling continues apace.  In case others might find it useful, here is my partial chronology of English statutes and cases on fortune-telling:

Chronology of English Statutes & Cases on Fortune-Telling

1530:  [Egyptians Act]  An act concerning Egyptians 22 Hen. 8 c. 10  (“many outlandish people, calling themselves Egyptians, using no craft nor feat of merchandise, have come into this realm, and gone from shire to shire, and place to place, in great company; and used great subtle and crafty means to deceive the people--bearing them in hand that they, by palmistry, could tell men's and women's fortunes; and so, many times, by craft and subtlety, have deceived the people of their money; and also have committed many heinous felonies and robberies, to the great hurt and deceit of the people that they have come among . . .  no such persons be suffered to come within this the King’s Realm, and if they do than they and every one of them so doing shall forfeit to the King our Sovereign Lord all their goods and chattels and then to be commanded to avoid the realm within 15 days next after the commandment upon pain of imprisonment . . .  The Egyptians now being in the Realm have monition to depart within 16[?] days after proclamation”)   (unverified: repealed in 1840 by 19-20 Vict. c. 64 or by Repeal of Obsolete Statutes Act 1856?)  (modernised spelling)

1530-1531:  [Vagrancy Act]  An act concerning punishment of Beggars and Vagabonds, 22 Hen. 8 c. 12 (“Where in all places through this realm of England, vagabonds and beggars have of long time increased and daily do increase in great and excessive numbers by the occasion of idleness, mother and rote of all vices . . .” [requires beggars to be licensed, and sets punishment of stocks or whipping for begging without a license or outside of licensed area]  “all other idle persons going about in any countries or abiding in any city, borough, or town, some of them using diverse and subtle craft and unlawful games and plays and some of them feigning themselves to have knowledge in Physic, Physiognomy, Palmistry, or other crafty science whereby they bear the people on hand, that they can tell their destinies, deceases, and fortunes and such other like fantastical imaginations to the great deceit of the King’s Subjects, shall . . . be punished by whipping at two days together [second offence is whipping, pillory, and having an ear cut off; third offence is whipping, pillory, and having other ear cut off]”  (verified repealed by 1597 Vagrancy Act) (modernised spelling)

1542:  [Witchcraft Act]  The bill against conjuration and witchcrafts and sorcery and enchantments 33 Hen. 8, c.8 (“if any person or persons . . . use, devise, practise, or exercise, or cause to be used, devised, practised, exercised, any Invocations or conjurations of Sprites, witchcrafts, enchantments, or sorceries, to the intent to get or find money or treasure, or to waste, consume, or destroy any person in his body members or goods, or to provoke any person to unlawful love, or for any other unlawful intent or purpose, or by occasion or [?] of such things or any of them, or for despite of Christ, or for lucre of money, dig up or pull down any Cross or Crosses, or by such Invocations or conjurations of Sprites, witchcrafts, enchantments, or sorcery or any of them take upon them to tell or declare where goods stolen or lost shall become, that then all and every such offence and offences . . .shall be deemed, accepted, and adjudged Felony.”) (unverified: repealed by statute of 1 Edward 6 c. 12 or 9 Geo. 2 c. 5 s. 4?) (modernised spelling)

1554: [Egyptians Act]  An act for the punishment of certain persons calling themselves Egyptians 1&2 Phil. & Mar. c. 4   (recites purpose of 1530 Act, says gypsies did not fear old penalties and have “enterprised to come over again into this Realm using their old accustomed devilish and naughty practices and devises”.  Says all present Egyptians must leave within 20 days or forfeit goods, and if they have not left within 40 days, become felons) (unverified: repealed by Repeal of Obsolete Statutes Act 1856?) (modernised spelling)

1563: [Witchcraft Act] An Act Against Conjurations, Enchantments, and Witchcrafts  5 Eliz. 1, c. 16  (says that after 1542 Witchcraft Act was repealed in the first year of the reign of Kind Edward, “since the repeal whereof many fantastical and devilish persons have devised and practiced invocations and conjurations of evil and wicked Sprites, and have used and practices Witchcrafts, enchantments, charms, and sorceries, to the destruction of the persons and goods of their neighbours and other subjects of this realm, and for other lewd intents and purposes contrary to the laws of Almighty God, to the peril of their own souls, and to the great infamy and disquietness of this Realm”)  Sets three categories of crimes:

1.       “if any person or persons shall  . . . take upon him or them, by witchcrafts, enchantment, charm, or sorcery, to tell or declare in what place any treasure of gold or silver should or might be found or had in the earth or other secret places, or where goods or things lost or stolen should be found or become, or shall use or practise any sorcery, enchantment, charm or witchcraft, to the intent to provoke any person to unlawful love, or to hurt or destroy any person in his or her body, member or goods”  (Penalty: 1 year’s imprisonment and pillory; second offence: life imprisonment)

2.      “if any person or persons.  . . shall use, practise or exercise any witchcraft, enchantment, charm, or sorcery, whereby any person shall happen to be wasted, consumed, or lamed in his or her body or member, or whereby any goods or chattels of any person shall be destroyed, wasted, or impaired” (Penalty: 1 Year’s imprisonment and pillory; Second Offence:  Death)

3.      –as # 2 above, but where “whereby any person shall happen to be killed or destroyed” (Penalty: Death)

(modernised spelling)

(verified repeal by 1604 Witchcraft Act)

1563: [Egyptians Act] An act for the punishment of vagabonds calling themselves Egyptians 5 Eliz. c. 20  (says question about whether  1554 Egyptians Act applies to gypsies born in England; confirms operation of that statute, but adds that “all and every person or persons which . . . shall be seen or found within Realm of England or Wales in any company or fellowship of vagabonds commonly called or calling themselves Egyptians, or counterfeiting, transforming or disguising themselves by their apparel, speech, or other behaviour like unto such vagabonds commonly called or calling themselves Egyptians, and so shall or do continue and remain in the same, either at one time or at several times by the space of one month” shall be declared a Felon)  (unverified: repealed by Statute Law Revision Act 1871) (modernised spelling)

1597:  [Vagrancy Act]  An act for punishment of rogues, vagabonds, and sturdy beggars 39 Eliz. c. 4 s. 2 (repeals all previous vagrancy acts; establishes several categories of persons to be deemed Rogues, Vagabonds, and Sturdy Beggars, including those representing themselves as Egyptians and “all idle persons going about in any country either begging or using any subtle craft or unlawful games and plays, or feigning themselves to have knowledge in Physiognomy, Palmistry, or other like crafty science, or pretending that they can tell destinies, fortunes, or such other like fantastical imaginations”  Punishment: whipping, returned to home area, forced labour) (modernised spelling)

1604:  An Act against conjuration, witchcraft, and dealing with evil and wicked spirits 2 Ja. 1 c. 12 (repeals 1563 Witchcraft Act) Sets up two categories of offences:

1.       “if any person or persons shall  . . . take upon him or them by witchcraft, enchantment, charm, or sorcery to tell or declare in what place any treasure of gold or silver should or might be found or had in the earth or other secret places, or where goods or things lost or stolen should be found or become; or to the intent to provoke any person to unlawful love, or whereby any chattels or goods of any person shall be destroyed, wasted, or impaired, or to hurt or destroy any person in his or her body, although the same be not effected and done” (Penalty:  1 Year’s Imprisonment & Pillory;  Second Offence:  Death as a Felon)

2.      “if any person or persons . . . shall use, practise, or exercise any invocation or conjuration of any evil and wicked spirit, or shall consult, covenant with, entertain, employ, feed, or reward any evil and wicked spirit to or for any intent or purpose; or take up any dead man, woman, or child out of his, her, or their grave, or any other place where the dead body rests, or the skin, bone, or any other part of any dead person, to be employed or used in any manner of witchcraft, sorcery, charm, or enchantment; or shall use, practise, or exercise any witchcraft, enchantment, charm, or sorcery, whereby any person shall be killed, destroyed, wasted, consumed, pined [?], or lamed in his or her body, or any part thereof;” (Penalty:  Death as a Felon)

            (verified repeal by 1736 Witchcraft Act) (modernised spelling)

1714:  [Vagrancy Act] An act for reducing the laws relating to rogues, vagabonds, sturdy beggars, and vagrants, into one act of parliament; and for the more effectual punishing such rogues, sturdy beggars and vagrants, and sending them whether [sic] they ought to be sent 12 Anne 2 c. 23 (version I have appears to be a summary only) (various provisions regarding vagrants, basically whipping them and ordering them back to their homes or a house of correction; nothing in summary about fortune-telling, but it’s hard to know)

1736:  [Witchcraft Act] An act to repeal the statute made in the first year of the reign of King James the First, entitled, An Act against conjuration, witchcraft, and dealing with evil and wicked spirits, except so much thereof as repeals an act of the fifth year of the reign of Queen Elizabeth, Against conjurations, enchantments, and witchcrafts, and to repeal an act passed in the parliament of Scotland in the ninth parliament of Queen Mary, entitled Anentis witchcrafts, and for punishing such persons as pretend to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration 9 Geo. 2 ch. 5 s. 4  (repeals 1604 Witchcraft Act)  (says in Section 3 that “no prosecution, suit, or proceeding, shall be commenced or carried on against any person or persons for witchcraft, sorcery, enchantment, or conjuration, or for charging another with any such offence, in any court whatsoever in Great Britain” but in Section 4 says “And for the more effectual preventing and punishing any pretences to such arts or powers as are before-mentioned, whereby ignorant persons are frequently deluded and defrauded; be it further enacted. . . . that if any person shall . . . pretend to exercise or use any kind of witchcraft, sorcery, enchantment, or conjuration, or undertake to tell fortunes, or pretend from his or her skill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels, supposed to have been stolen or lost, may be found; every person so offending, being thereof lawfully convicted . . . shall for every such offence suffer imprisonment, by the space of one whole year without bail . . . and once in every quarter of the said year . . . stand openly on the pillory by the space of one hour”  (verified repealed by 1951 Fraudulent Mediums Act) (spelling modernised)

1744: [Vagrancy Act] An act to amend and make more effectual the laws relating to rogues, vagabonds, and other idle and disorderly persons, and to houses of correction.  17 Geo. 2, c. 5, s. 2 (“all persons pretending to be gypsies, or wandering in the habit or form of Egyptians, or pretending to have skill in physiognomy, palmistry, or like crafty science, or pretending to tell fortunes, or using any subtle craft to deceive and impose on any of His Majesty’s subjects” shall be deemed rogues and vagabonds) (spelling modernised)

?1762:  Egyptians Act (unverified: repealed by Statute Law Revision Act 1871?) (have not obtained)

1807: Trial of Joseph Powell (vagrancy) (Perkins article)

?1822:  3 Geo. 4 c. 40, s. 3 (“all persons pretending to be gypsies; all persons pretending to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of His Majesty’s subjects” are to be deemed rogues and vagabonds) (repealed all previous vagrancy legislation) (have not obtained)

1824:  [Vagrancy Act] An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, in that Part of Great Britain called England, 5 Geo. 4, c. 83, s. 4 (verified: repealed all previous vagrancy legislation) (“Every person pretending or professing to tell fortunes, or using any subtle craft, means or device, by palmistry or otherwise, to deceive and impose on any of His Majesty’s subjects . . . shall be deemed a rogue and a vagabond.”  Penalty: hard labor for three months) [verified repeal by Fraudulent Mediums Act, 1951]

1868: Lyon v. Home (common law undue influence on gifts)

1876:  Henry Slade (Vagrancy Act 1824) (unreported, in Hayward)

1877:  Monck v. Hilton (Vagrancy Act 1824)

1887:  Penny v. Hanson (Vagrancy Act 1824)

1895:  Lee or Smith v. Neilson (Vagrancy Act 1824)

1899: Regina v. Entwistle (Vagrancy Act 1824)

1904: R v. Stephenson (Witchcraft Act 1735)

1918: Davis v Curry (Vagrancy Act 1824)

1921:  Stonehouse v. Masson (Vagrancy Act 1824)

1939: Bessy Birch (Witchcraft Act 1735) (unreported, in Hayward)

1944:  Rex v. Duncan (Witchcraft Act 1735)

1948:  Farmer v. Mill (Vagrancy Act 1824)

1950:  Charles Botham (Witchcraft Act 1735) (unreported, in Hayward)

1951:  Fraudulent Mediums Act 1951  “any person who (a) with intent to deceive purports to act as a spiritualistic medium or to exercise any powers of telepathy, clairvoyance or other similar powers, or (b) in purporting to act as a spiritualistic medium or to exercise such powers as aforesaid, uses any fraudulent device, shall be guilty of an offence.  (2)  A person shall not be convicted of an offence under the foregoing subsection unless it is proved that he acted for reward; and for the purposes of this section a person shall be deemed to act for reward if any money is paid, or other valuable thing given, in respect of what he does, whether to him or to any other person.”  (Penalty:  summary conviction: fine up to fifty pounds and/or imprisonment upon to four months; conviction on indictment: fine up to 500 pounds and/or imprisonment up to two years)  (verified repealed by Consumer Protection from Unfair Trading Regulations 2008)

1981: R. v. Martin (Vagrancy Act, 1824)

2008:  Consumer Protection from Unfair Trading Regulations 2008  (general consumer protection statute against fraudulent or misleading behaviour)

Posting Hiatus

I think the time has come to say that this blog probably won't be updated further, except for occasional special postings about publications and so forth.  One only has to look at the yearly list to see that the number of posts have steadily declined on this blog since it began five years ago.  Unfortunately, a blog that I had plenty of time to update while a graduate student has become quite hard to maintain now that I work full time, and I'm trying to put the energy of reading and writing about law and religion issues into publishable formats (articles and books) rather than blog posts.  Still, I'm happy with the content of the posts and the number of hits they received, so everything will stay in its current place.  For those of you who have been reading along, many thanks!

Two Discussions of my Work

Much has been happening on the front of anti-blasphemy law campaigning in recent months, and it's very exciting.  I'm also very far behind on blogging!  For now, links to a couple of articles on abolishing Canada's blasphemy laws that include a discussion of my work:

Jacob Gershman, "Charlie Hebdo Attack Spurs Effort to Abolish Canada's Blasphemy Law" Wall Street Journal LawBlog (Jan. 8, 2015).

Thomas Walkom, "Canadian Blasphemy Trial a Warning Against Smugness" Toronto Star (Jan. 16, 2015).

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.

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.

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.

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.

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.

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.

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.
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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.

"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.