Protests in Pakistan Over Bill to Remove Blasphemy as a Capital Crime

Howard Friedman's Religion Clause Blog has a short post on major protests in Pakistan over a bill that would remove blasphemy from the country's list of capital offenses. See also this recent post.

Danish Police Arrest Five in Plan to Attack Jyllands-Posten

According to Slate, Danish police have arrested five men who planned to attack Jyllands-Posten, the newspaper that originally published the famous "Danish Muhammad Cartoons". According to police, the men had plotted to break into the newspaper's offices and "kill as many of the people present as possible."

Christmas as a Secular Holiday

Monday's USA Today has interesting two articles reporting survey results and interviews on the often-discussed issue of whether Christmas is increasingly becoming a secular holiday because those who celebrate it often downplay or ignore the event's religious significance:

"Many Skip Christmas' Religious Aspect"

"Survey: For Many, Jesus Isn't the Reason for the Season"

American Convicted of Blasphemy in Indonesia

According to Howard Friedman's Religion Clause Blog, an American was recently convicted of blasphemy in Indonesia and sentenced to 5 months in jail. The American, Gregory Luke, became upset with a local mosque's broadcasts of the call to prayer during Ramadan. Although Luke denied it, the court found that he pulled the plug on the mosque's loudspeakers and therefore committed blasphemy and related crimes.

Secularism on the Rise With Youth in Canada

Yesterday's Globe and Mail has an interesting article on the rise of secularism among young people in Canada. According to the article, statistics indicate that "[m]ore than half of Canadians in the 15-to-29 age cohort either have no religion or never attend a service of worship" and the percentage that say religion is "very important" to them has declined significantly in the past decade and now sits at just 22 per cent. The article includes several interviews with non-religious young persons and is part of a "Future of Faith" series.

New South Wales' Blasphemy Statute

Below is the text of the blasphemy statute for the Australian State of New South Wales. I've often seen this referred to as a statute that abolishes the crime of blasphemy in the jurisdiction, but if you read it closely it actually only limits prosecutions to occasions where there is "scoffing or reviling", "violating public decency", or "manner tending to a breach of the peace". Since these criteria can often be found in traditional common law blasphemy prosecutions, the statute may not accomplish very much in the way of safeguarding freedom of speech.

Source: Crimes Act 1900 No. 40 s. 574 (valid as of July 9, 2010)

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574. Prosecutions for blasphemy

No person shall be liable to prosecution in respect of any publication by him or her orally, or otherwise, of words or matter charged as blasphemous, where the same is by way of argument, or statement, and not for the purpose of scoffing or reviling, nor of violating public decency, nor in any matter tending to a breach of the peace.

Tasmania's Blasphemy Statute

Here is the text of the Australian State of Tasmania's statute on blasphemy, which is still in force. It contains several elements that are familiar: no definition of what "blasphemous libel" is, an exception for speech made "in good faith and in decent language", and a provision that requires the consent of the Attorney-General to prosecute.

Source: Criminal Code Act 1924 s. 119

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119. Blasphemy

(1) Any person who, by words spoken or intended to be read, wilfully publishes a blasphemous libel is guilty of a crime.

(2) The question whether any matter so published is or is not blasphemous is a question of fact.

(3) It is not an offence under this section to express in good faith and in decent language, or to attempt to establish by arguments used in good faith and conveyed in decent language, any opinion whatever upon any religious subject.

(4) No person shall be prosecuted under this section without the consent in writing of the Attorney-General.

"Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred"

Peter G. Danchin, Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred, 2 Duke Forum L. & Soc. Change 5 (2010). (available on SSRN)

This is an interesting and provocative article that asks whether mainstream liberal legalism has correctly articulated the issues created by the Danish Muhammad cartoons. Danchin argues that "[w]hat has been most striking about the Danish cartoons controversy has been how the deep sense of injury expressed by so many Muslims . . . has literally been incomprehensible within Euro-Atlantic modernity." (p. 10) The article thus follows closely to the arguments expressed by Saba Mahmood in Is Critique Secular? Blasphemy, Injury and Free Speech while standing in opposition to Robert Post's article Religion and Freedom of Speech: Portraits of Muhammed which (according to Danchin) portrayed the controversy as a paradigmatic example of the necessity of adhering to strong freedom of speech principles in the face of conservative religious cries of blasphemy. Danchin thus asks us to step away from the exceptionalist U.S. approach to hate speech (which almost always finds such laws unconstitutional) and instead to examine more seriously the approaching international consensus that believers need legal protection against attacks on their faith. Danchin seems sympathetic to Mahmood's argument that Muslims were understandably angered by the cartoons because of their deep and intimate personal attachment to Muhammad. Under this analysis, "the notion of moral injury caused by denigratory or purposively offensive speech no longer falls as neatly into . . . private belief or conscience[,] [but] [r]ather suggests a sense of violation--and violence--that strikes at a Muslim's very being, a sense of wounding against an entire habitus or structure of affect." (pp. 31-32)

The article can be frustrating at times--many passages are difficult to decipher and Danchin carefully equivocates on important points. Moreso, he's writing as a political philosopher at a high level of generality, and thus avoids the hard questions that real politicians and lawyers would have to deal with: does the special relationship Muslims are said to have with Muhammad justify special legal protections that members of other faiths are apparently able to function without? Will Muslims grow a "thick skin" as the Islamic world increasingly clashes with modernity and the liberal devotion to free speech and criticism? Is this whole notion of a "special relationship" between Muslims and Muhammad really any different than believers of any religion feel towards their god, saints, prophets, or other religious leaders? (that is, do we have anything more than Saba Mahmood's word for this argument?). My sympathies are obvious more towards Robert Post's position, but Danchin's article is definitely worth reading as it's a sophisticated and thought-provoking reappraisal of the the common approach of treating the cartoons as a simple contest of free speech vs. blasphemy.

Centre for Inquiry Plans New Skeptical Bus Ads

The Toronto Star reports that, on the heels of last year's controversial advertising campaign ("There's probably no God. Now stop worrying and enjoy your life.") the Centre for Free Inquiry plans to launch a new campaign in Canada that takes a skeptical approach to several religious and paranormal topics. The new ads will read "Extraordinary Claims Require Extraordinary Evidence: Allah, Bigfoot, UFOs, Homeopathy, Zeus, Psychics, Christ". The ads will roll out first on Toronto transit vehicles before spreading to other Canadian cities.

"Blasphemous" Exhibit at Smithsonian Topic of Discussion

The New York Times is reporting that next week the curators of the Smithsonian exhibition "Hide/Seek: Difference and Desire in American Portraiture" will be discussing the recent decision to abruptly remove an exhibit that had been attacked as blasphemous by conservatives. The artwork, a video by David Wojnarowicz, depicts ants crawling on a crucifix and was apparently intended as commentary on the AIDs epidemic. The show's two curators, Jonathan Katz (who was against removal) and David Ward will discuss the controversy at a special panel hosted by the New York Public Library.

General Assembly Approves "Defamation of Religions" Resolution

The UN General Assembly has once again passed a resolution condemning the "defamation of religions." This year the vote was 76-64, the slimmest margin to date. According to Howard Friedman's Religion Clause Blog, the resolution includes "Judeophobia" and "Christianophobia" for the first time (in addition to the traditional reference to "Islamophobia").

Pakistani Court Halts Blasphemy Law Reforms

Religion Clause Blog has a post about a temporary injunction issued recently by a Pakistani court that blocked recent reforms of the country's blasphemy legislation under the principle that Parliament lacks authority to amend laws relating to religion.

"Living Together With Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today"

Iain T. Benson, Living Together With Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today, Presentation to the Chester Ronning Centre for the Study of Religion and Public Life, University of Alberta (2010). Available on SSRN.

In this paper, Iain Benson reiterates his long-standing belief that the Canadian legal system has done a disservice to the role of religion in the public sphere by creating a regime where "secularism" is akin to official atheism instead of being "properly understood [as] a realm of competing faith/belief claims[.]" (p. 7) Benson illustrates his argument with long discussion of two cases: Chamberlain v. Surrey School District (which involved whether books that portrayed same-sex relationships as normal could be taught in schools over the objections of religious parents) and Trinity Western University v. British Columbia College of Teachers (which involved whether the graduates of a conservative religious teachers' college that opposed homosexuality should be certified to teach in public schools). A major theme running throughout this work is a perceived clash between religious freedom and the rights of GLBT individuals, with Benson coming down on the side of the former in every instance. In the second part of the essay, Benson criticizes liberalism's supposed tendency to become a totalizing force that excludes genuine diversity of thought and belief for a homogenized "tolerance" that (in his view) seems to privilege the values of certain minorities (and their "sexual dogma") over those of mainstream faith communities. Benson has made similar arguments elsewhere, such as in Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy.

I don't find Benson's arguments particularly convincing and he occasionally assumes the position of a heavily-put upon minority and slips into a sarcastic, almost snide tone that is dismissive of GLBT individuals and what I believe are their legitimate demands for equal protection under the law. (see, e.g., p. 21) Benson is nowhere near as strident as many conservative Republicans writing during the U.S. culture wars, but he does seem to imply that GLBT individuals are the biggest threat facing the maintenance of "traditional" values in Canada.

Classroom Bible Distribution Stirs Controversy in Waterloo

The National Post has an interesting story about a school board in the Waterloo region of Ontario voting to allow the Gideons to distribute Bibles to children in the classroom. Students who want to receive the Bibles have to have a permission slip signed by their parents, but the practice has created controversy and may be challenged in court.

Burning Koran Gets British Teen Arrested

Friedman's Religion Clause Blog has a post about the recent arrest of a British teenager for "inciting religious hatred" after she burned a copy of the Koran and then posted a video of the act on Facebook.

"Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy"

Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (Montreal & Kingston: McGill-Queen's University Press, 2004)

Recognizing Religion in a Secular Society is a 2004 collection of nine essays about a wide variety of topics within the general category of the relationship between religion and government. The essays are more in the vein of philosophy and ethics than legal scholarship, and with an exception or two tend to have a pro-religion bent. Four of the essays are very Canadian-focussed, but the others are general enough that the collection is useful to non-Canadians interested in religion and secularism.

"Religion in the Public Realm" by H.R.H. Prince El Hassan Bin Talal is a short essay written from a Muslim perspective. The author argues that, contrary to to its reputation, Islam is compatible with democracy and pluralism and is undergoing "a gradual but nonetheless thoroughgoing process of evolution that is changing our religion as comprehensively as any revolution[.]" (p. 8). It's hard to make a persuasive case for such a controversial claim in just 8 pages, and therefore the essay is heavy on assertion and light on evidence or analysis.

"Freedom of Religion and the Rule of Law: A Canadian Perspective" is an important essay as it was written by the Chief Justice of the Supreme Court of Canada, Beverley McLachlin. She addresses what she believes is the dilemma facing all liberal democracies: how to reconcile an individual's deep-seated commitment to religious principle with society's obligation to enforce the rule of law. (p. 16) McLachlin maintains that it is the responsibility of courts to find "in the comprehensive claims of the rule of law, a space in which individual and community adherence to religious authority can flourish." (p. 20) A discussion of the courts' treatment of religious freedom in Canada follows, and McLachlin makes no apologies for that responsibility being in the hands of the legal system. The essay doesn't tread a lot of new ground or offer new insight on how religious freedom issues should be resolved--it all comes down to "balancing" in McLachlin's mind. (p. 22) What is interesting, however, is her strong defense of courts as the institution to do that balancing.

In "A Response to Chief Justice McLachlin", Jean Bethke Elshtain challenges the view that courts are the proper forum for the resolution of religious freedom issues. Elshtain maintains that such issues should be resolved by "citizens, variously located, through a culture of democratic argument: citizens engaging one another and sorting things out, as often they will, in a rather untidy, rough and ready way." (p. 39) In this view, courts should serve only as a last resort with the democratic process fails.

William Galston's "Religion and the Limits of Liberal Democracy" is a short but interesting essay that argues against "civic totalism": the idea some liberals have of "public institutions as plenipotentiary and civil society as a political construction possessing only those liberties that the policy chooses to grant and modify or revoke at will." (p. 42) Unfortunately, there's little discussion of how things would change if "civic totalism" were abandoned.

"Human Dignity and the Social Contract" is an essay by David Novak that argues "only religious people in a democratic society have sufficient reasons for ensuring the limitation of the normative reach of that society." (p. 63) Without traditional communities founded on religion, Novak argues that the state would become totalistic because only religious people have sufficient faith and belief in the rightness of their principles to resist the ever-expanding reach of government. According to Novak, neither "civil religion" nor the "social contract" are adequate to sustain democratic principles in the absence of traditional faith communities. Novak, however, fails to explain why so many countries throughout history with traditional faith communities have displayed little respect for democratic freedom, nor how his argument can be reconciled with democratic Western Europe, where traditional faith communities have shown some dramatic losses in influence in recent decades.

Jean Bethke Elshtain returns with another essay titled "Persons, Politics, and a Catholic Understanding of Human Rights". Elshtain argues that human rights claims are fundamentally ineffective against a totalizing state unless such rights are conceived of as being anchored in religious principle. (p. 80) According to Elshtain, "Human dignity is lodged in the fact that human beings are creatures of a certain sort, creatures in fact who derive their dignity directly from God, whose personhood is a capacity for communion with God." (p. 80) The argument is interesting, but it crucially depends on the facts: has the Catholic Church been an inspiration or an obstacle to modern human rights movements? In my view, the Church's record is decidedly mixed.

Iain T. Benson's "Considering Secularism" is an analysis and critique of how the Supreme Court of Canada has deployed the term "secularism" in its judgments. According to Benson, the Court implies that "secularism" is a doctrine of neutrality towards religion, when in fact history shows that the term has its origins in the "anti-religious aspects" of G.J. Holyoake's philosophy. Benson advocates the "religion-inclusive" word "secular" over "secularism", (p. 98) but a major thrust of his essay seems to be dismay over the Court's openness to GLBT rights when such rights apparently clash with the values of traditional religious communities.

"Birth, Death, and Technoscience: Searching for Values at the Margins of Life" is an interesting essay by Margaret Somerville on the difficulties of resolving moral questions in a diverse society lacking uniformly held values. Somerville discusses several dilemmas that occur at the "margins of life": genetic screening, cloning, stem cell research, and euthanasia. Somerville adopts a fairly conservative tone in the essay and is far more concerned with the risks posed by new technologies than the potential benefits. She argues that religion can and should be an important player in the debate.

H. Tristram Engelhardt, Jr.'s "Taking Moral Difference Seriously: Morality After the Death of God" begins with a persuasive account of how "first-order consensus" on moral principles is impossible in modern liberal democracies. Engelhardt says that instead of trying (and inevitably failing) to reach such a consensus, we should acknowledge the problem and then work on how "to collaborate in the face of moral difference." (p. 117) Thus, "[i]nstead of directing ourselves to the goal of a consensus universally imposed through the force of law, we should envisage policy approaches that can encompass a plurality of peaceable moral visions, allowing uncoerced collaboration in the face of real moral diversity." (p. 121) It's not exactly clear to me what this would look like in practice, though it seems to imply a more "hands-off" libertarian approach to moral issues.

Douglas Farrow's "Of Secularity and Civil Religion" is an odd essay that includes a long and discursive discussion of Rousseau before moving on to (in my view) a legally naive discussion of how the inclusion of the phrase "Whereupon Canada is founded upon principles that recognize the supremacy of God and the rule of law" in the Charter's Preamble somehow protects the nation and its government from becoming truly "secular".

On the whole, I have to politely disagree with Witte's blurb on the back cover that "[n]o one can read this book without being shaken, and edified." I may have been mildly "edified" about fairly standard moderate-conservative views about the role of religion in society, but I can attest, under oath, I was never "shaken." Recognizing Religion in a Secular Society is a solid and useful collection of essays on a topic that has received a lot of attention in recent years.

"The Curious Persistence of Blasphemy"

A draft of my new article The Curious Persistence of Blasphemy is available for free download on SSRN here.

Abstract:

Despite expectations to the contrary, blasphemy laws and their modern-day counterparts persist in a surprising number of jurisdictions around the globe. This article discusses four examples: the "defamation of religion" movement at the United Nations, the surprising resurrection of blasphemy law in Ireland, the Australian trend toward enacting "religious vilification" laws, and the problem of formal illegality and private violence for blasphemous speech in Pakistan. Next, blasphemy is considered from three conceptual angles: the religious, the legal, and the secular/cultural. Last, the curious persistence of blasphemy is examined through an inquiry into why people blaspheme to begin with, and what harms (real or perceived) are caused by blasphemy. The conclusion here is that as long as societies hold something sacred--religiously or culturally--blasphemy will remain an operative concept and legal or social pressure to suppress blasphemous statements will continue to persist.

Blogger in Palestine in Arrested for Blasphemy

The New York Times has a long article about a Palestinian blogger in the West Bank who has been arrested and detained for several weeks on suspicion of blasphemy. The blogger, Waleed Hasayin, is suspected of promoting atheism and spoofing the Koran. According to the article, a trial could be conducted under a 1960 Jordanian statute that prohibits the defamation of religion.

TV Psychic Avoids Death in Saudi Arabia

Howard Friedman's Religion Clause Blog reports that the Saudi Arabian Supreme Court has lifted a death sentence against a Lebanese television psychic who was arrested while on a pilgrimage in Saudi Arabia and charged with practicing "sorcery". The case has been remanded for retrial.

"Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law"

Rex Tauati Ahdar, Religious Vilification: Confused Policy, Unsound Principle and Unfortunate Law, 26 U. Queensland L.J. 293 (2007)

Ahdar's article is focussed on religious vilification in Australia. The article briefly canvasses a purported justification for such laws, the need to prevent discrimination and abuse that hateful statements may cause in society. Ahdar argues that the argument is unconvincing because "the linkage here is indirect, conjectural, and rather diffuse. Some sorts of disparaging or inflammatory speech may provoke improper conduct in some hearers in some circumstances." (p. 297) Next, Ahdar discusses several arguments against religious vilification laws, including the chilling effect the laws have on freedom of speech, the divisiveness they tend to cause between religious groups who use the laws as a blunt instrument to attack each other, the false analogy between religious hate speech and racist hate speech, and more. A good portion of the article is devoted to discussing the 2006 case Catch the Fire Ministries v. Islamic Council of Victoria, which was the first real test of Victoria's religious vilification law. According to Ahdar, the case revealed several problems with religious vilification laws that remain unsolved despite a long and complex court opinion. In the end, he concludes that such laws fall into the category of "things that clearly do not work" to "promote religious harmony and tolerance in society." (p. 316)

Death Sentence for Blasphemy in Pakistan

Howard Friedman's Religion Clause Blog reports that a Christian woman in the Punjab province of Pakistan has been sentenced to death for blasphemy. The woman was charged with blasphemy after getting into a heated discussion with fellow farm workers who had tried to convert her to Islam.

Letter from Ernest Bertrand Re: Amending Blasphemous Libel

"Ernest Bertrand, K.C. --Montreal--Crim. Code--To Amend sec. 198 RE: Blasphemous Publications", RG-13, Series A-2, Vol. 328, File 1929-669" (Library and Archives Canada)

This file contains a letter written on April 9, 1929 by a lawyer named Ernest Bertrand to the Federal Minister of Justice, M. Ernest Lapoint. The letter states that Bertrand has been contacted by the curé of a parish named St. Hilaire about three brochures that have been circulating in the community that are, in Bertrand's views, blasphemous. Bertrand states that he would like to bring charges against the persons responsible for circulating and selling the brochures, but that on his reading of Criminal Code s. 198, only the publisher is liable. Bertrand thus requests that amendments be made to section 198 to extend its scope.

The file includes a draft response from the Ministry indicating that "it is clearly too late this year to present any new legislation" but that Bertrand's views would be submitted to staff for consideration.

New Report on Blasphemy in Seven Countries

As noted in Howard Friedman's Religion Clause Blog, an organization called Freedom House has issued a major report titled Policing Belief: The Impact of Blasphemy on Human Rights. The report examines blasphemy in seven countries (Algeria, Egypt, Greece, Indonesia, Malaysia, Pakistan, and Poland) and concludes that such laws severely impact freedom of expression and religion. I haven't yet read the report, but I hope to do so and discuss it in more depth in a future post.

Research Note: Blasphemy in Saskatchewan

As a research note, on January 8, 2009, I sent an inquiry to the Saskatchewan Archives. They responded by stating that a keyword search of their internal database of criminal cases showed no results for "blasphemous", "blasphemy", or "libel."

Research Note: Blasphemy in Nova Scotia

As a research note, on January 8, 2009, I searched the Archives of Nova Scotia's Bosa Nova database for "blasphemy" and "blasphemous" and received no hits. I also corresponded with a researcher at the Archives who had been looking into libel cases in Halifax for the period 1830 to 1920, and he reported finding no cases of blasphemous libel.

Research Note: Blasphemous Libel in Manitoba

On December 4, 2008, I searched the Archives of Manitoba Keystone Descriptive Database for "blasphemy", "blasphemous", and "libel" and turned up no hits. For future researchers in this area, it appears that the Archives contain microfilm-only files that may be worth searching, include Winnipeg Police Court records and Winnipeg Court of Queen's Bench index books and judgment rolls.

"I.L. Honsberger--Long Branch, Ontario--Inquiry re blasphemy laws"

"I.L. Honsberger -- Long Branch, Ontario -- Inquiry re blasphemy laws", RG13-A-2, vol. 262 (1921)

Purely as a reference note, I examined the above file (held by Library and Archives Canada) and found that it contained no useful information regarding Canada's blasphemy laws.

"Separating Church and State Our Tradition"

This column originally appeared in a November, 2006, issue of the The Windsor Star.

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Separating church and state our tradition

Jeremy Patrick, Special to The Windsor Star

Published: Monday, November 27, 2006

Is the separation of church and state Canadian? Much has been written recently about the increasing influence of the "religious right" in Stephen Harper's Conservative government. The commentators share a fear that decisions affecting all Canadians are increasingly being made on the basis of religious faith rather than sound public policy. In the United States, controversies over the proper relationship between religion and government are often settled by judicial invocation of the "separation of church and state" reflected in the American Constitution's Establishment Clause: "Congress shall make no law respecting an establishment of religion."

Canada's Charter of Rights and Freedoms contains no such clause, however. Although it guarantees an individual's freedom of religion, it does not explicitly forbid the state from endorsing or supporting a particular religion (or religion in general). During the last federal election, Harper stated that "the separation of church and state is an American constitutional doctrine, not part of Canada's legal or political tradition." This simply isn't true. Indeed, Canada has a long history of separating church and state in most contexts.

In the late 1700s and early 1800s, the government provided extensive privileges to certain religious denominations. The Church of England, for example, received special favouritism in political appointments, the selection of legislative and military chaplains, and marriage laws. In Quebec, the Roman Catholic Church was closely enmeshed with the provincial government. However, these close links between religion and government slowly fell away. The enormous controversy over the Clergy Reserves is a good example of this trend. In the Constitutional Act of 1791, one-seventh of all public land in Upper and Lower Canada was allotted for the support of Protestant clergy. Income from this land, comprising almost two and half million acres, was channeled solely to the Church of England. Not surprisingly, this provoked intense jealously among other religious denominations, and the controversy was seen as a contributing cause to the failed rebellion of 1837. To placate some of the denominations, the Reserves were partially opened to other denominations in 1840. According to the great Canadian religious historian John Moir, even the mere existence of the Reserves in this form led to a 'bitter and noisy' dispute, and after several more years of controversy, the Reserves were finally abolished in 1854.

The disentanglement of religion from government did not occur overnight, it was a gradual process that is still going on today. However, the proclamation of the Charter in 1982 sped up this process. Although theCharter doesn't have an "Establishment Clause" per se, the courts have used other provisions of the document to reach the same effect. For example, the courts have held that the Federal Sunday Closing Act was unconstitutional because it had a religious purpose; that public schools could not teach Christianity or begin the school day with recitations of the Lord's Prayer or Bible verses; that legislatures cannot begin their meetings with sectarian prayers; and that property disputes between competing factions of a church must be resolved by secular principals.

There are still some remnants of an earlier age, but they appear to be of the relatively minor, non-coercive type of symbolism that in the United States is referred to as "ceremonial deisms." For example, the Canadian national anthem makes reference to a deity, the House of Commons opens with an avowedly non-denominational prayer, and the Queen, formal head of state, is required by English law to be Protestant. Otherwise, with one exception, it's hard to think of any legislation or practices in Canada that would constitute a clear violation of the American Constitution's Establishment Clause as interpreted by the U.S. Supreme Court. The major exception, of course, is the existence of publicly funded religious schools in Ontario. Since Confederation, the Constitution has guaranteed the right of Catholic schools in the province to receive support from the government. This is clearly not a minor "breach" in the "wall" between church and state. However, even this link between church and state is allowed only because it is specifically guaranteed in the Constitution. Otherwise, the Charter'sguarantee of religious freedom and equality would probably be applied by the courts to invalidate the practice. The recent voluntary decisions to end public support of religious schools in Newfoundland and Quebec are simply further examples of the ongoing trend to separate church and state in Canada.

New controversies always affect how the state views its role vis-a-vis religion. Should Sharia law be enforceable? Can courts force an Orthodox Jewish husband to ask for a religious divorce?These are all questions that will have to be answered in the future. What's clear is that the country's legal and political history demonstrate that the separation of church and state is a Canadian value, not just an American one.

Jeremy Patrick is an Assistant Professor in the American-Canadian joint degree program at the University of Detroit Mercy School of Law. His article "Church, State, and Charter: Canada's Hidden Establishment Clause" is forthcoming in a comparative law journal.

"Blasphemy Law Should Be Repealed"

The following newspaper column originally appeared in the July 6, 2008, issue of the Toronto Star.

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Blasphemy law should be repealed

Toronto Star

July 06, 2008

Jeremy Patrick

Last month, after a long debate, England abolished the ancient common law offence of blasphemous libel. Historically, the crime of blasphemy was committed whenever "contemptuous," "reviling," or "scurrilous" statements were made about God, Jesus Christ or the Church of England.

The offence had been the basis for hundreds of prosecutions throughout the 18th and 19th centuries before falling into a period of dormancy after 1922. Surprisingly, however, the offence was suddenly resurrected as the basis of a successful private prosecution against a gay newspaper in 1977. Subsequent private prosecutions against Salman Rushdie's book The Satanic Verses in the late 1980s and against the musical Jerry Springer: The Opera just last year were unsuccessful but equally disturbing to modern proponents of free speech.

What most Canadians (even most lawyers) don't realize is that our own Criminal Code also prohibits blasphemous libel and sets a penalty of up to two years in prison. The statute doesn't define what constitutes a blasphemous libel. Instead, it only notes that statements made in "good faith and conveyed in decent language" are exempted.

Although the last known government prosecution was in the 1930s, the law was invoked in private prosecutions at least as late as 1979. Why should we worry about a law that hasn't been used in decades? Dusty old laws can often be perfectly innocuous and even humorous – like the purported Kentucky law that says you have to remove your hat if you come across a cow on the road.

However, obscure, little-known statutes like the blasphemy offence can also serve as a dangerous extension of police or prosecutorial discretion, creating a greater opportunity for threats of enforcement that lead to self-censorship by cautious publishers. And unfortunately, dead laws don't always stay dead when prosecutors are desperate: a statute prohibiting the spreading of "false news" was inserted into the first Criminal Code in 1892, used once in 1907, again 63 years later in 1970, and for the third and final reported time in a high profile conviction (overturned on appeal) of Holocaust-denier Ernst Zundel in the late 1980s.

The Charter, of course, provides strong guarantees of freedom of expression and religion. If the blasphemy law were to be invoked again, it's likely a court would strike it down. Even this should be of limited consolation. The cost and time to mount an effective Charter defence is not insignificant, nor is it perfectly clear that an enterprising Crown attorney couldn't analogize the crime of blasphemous libel to constitutionally valid laws prohibiting anti-religious hate speech.

Of more practical concern, however, is that the existence of the crime of blasphemy in Canadian law could make it harder for the Canadian government to criticize repressive blasphemy prosecutions in countries where free speech is given short shrift. For example, according to the March 6 edition of the Los Angeles Times: "A funny thing happened in November when Britain launched a righteous protest over Sudan's arrest of a British schoolteacher accused of insulting Islam by letting her students name a class teddy bear Muhammad. But it didn't take long for someone to point out that Downing Street was standing on diplomatic quicksand: Britain itself has a law making blasphemy a crime."

Even if the risk of appearing hypocritical is small, the ongoing existence of a criminal prohibition on blasphemy in the Criminal Code directly conflicts with Canada's public- and self-image as a pluralist, multicultural democracy with a strong commitment to freedom of speech and religion.

The prohibition is simply a sad reminder of a time when disagreeing with mainstream religion and using "uncouth" speech was enough to merit a prison sentence. We should be disappointed that Parliament has let it remain on the statute books for as long as it has.

Jeremy Patrick is a PhD student at Osgoode Hall Law School in Toronto and has written on blasphemous libel. He welcomes feedback at jhaeman@hotmail.com.

Dutch Politician Prosecuted for Anti-Islam Editorial

The National Post has an article about the trial of Dutch politician Geert Wilders on charges of inciting hatred towards Muslims. Wilders wrote a newspaper column advocating the banning of the Koran and comparing Islam to Nazism. An court ordered the prosecution, but the prosecutors have argued that criticism of a religion is not illegal.

"Where's Muhammad?" Cartoon Pulled by Washington Post

Editors at the Washington Post pulled a cartoon intended to run in one of last week's issues out of fear it might offend Muslims. The cartoon depicted a busy park full of innocuous activities, with the caption "Where's Muhammad?" The cartoon, of course, is a parody of the famous "Where's Waldo?" series of children's books, and Muhammad does not appear in the cartoon. The Post's ombudsman has written that, in his opinion, the editors should have ran the cartoon because "the cartoon is not a blasphemous attack on the prophet. If anything, it's a powerful and witty endorsement of freedom of expression."

"Is Critique Secular? Blasphemy, Injury, and Free Speech"

Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood, Is Critique Secular? Blasphemy, Injury, and Free Speech (Berkeley, CA: Townsend Center for the Humanities, 2009).

In the Fall of 2007, UC-Berkeley held a symposium on the topic "Is Critique Secular?" The results have been published in a slim 153-page volume, with the subtitle of "Blasphemy, Injury, and Free Speech." The book consists of two main essays, "Free Speech, Blasphemy and Secular Criticism" by Talal Asad, and "Religious Reason and Secular Affect: An Incommensurable Divide?" by Saba Mahmood, plus a response by Judith Butler and then replies to Butler's response by Asad and Mahmood.

An important thing to note is that these essays are written in the style of literary criticism, and bear all of the hallmarks of that discipline (anyone who has been to panels at the Modern Language Association will know what I'm talking about): they are jargon-heavy, opaque, discursive, theory-heavy, implicitly critical of the West, and prone to leaving the reader feel like a lot of words have been expended without concrete ideas having been expressed. A subtle implication throughout, one which I think lacks historical foundation, is that "blasphemy" is purely something the secular West does to the religious East as an act of oppression.

Those (very large) caveats aside, there is something interesting in Mahmood's essay, and Butler's response to it, on the nature of the "harm" felt by Muslims in response to the Danish Muhammed cartoons. Briefly put, the argument is that Muslims identify so strongly with the Prophet that insults to him bring about emotions of grief and emotional pain that are difficult to understand and account for in the traditional framework of "blasphemy vs. freedom of speech." As Butler explains it, the cartoons are problematic not because of the offensive ideas inherent within them but because they are seen as attempts to "coerce disbelief" and "any attempt to coerce someone away from his or her belief is an effort to break a relation to a transcendence by which one is sustained." (p. 118)

French Blogger Arrested for Burning Koran

The National Post reports that French authorities have arrested a man on charges of religious hatred for posting a video of himself on the Internet burning a Koran and then urinating on it to put out the flames.

"Ranters Run Amok and Other Adventures in the History of the Law"

Leonard W. Levy, Ranters Run Amok and Other Adventures in the History of the Law (Chicago: Ivan R. Dee, 2000).

Before his death in 2006, Leonard Levy was one of America's foremost legal historians. Levy wrote on a variety of topics, and was probably most famous for his books on early American constitutional history. Two of his books (Treason Against God: A History of the Offense of Blasphemy and Blasphemy: Verbal Offense Against the Sacred From Moses to Salman Rushdie) remain the most comprehensive sources on how blasphemy law evolved from its earliest incarnations to the 20th century.

Levy's 2000 book Ranters Run Amok and Other Adventures in the History of the Law is a collection of miscellaneous essays about a variety of topics, including the Fourth Amendment, the Fifth Amendment, Massachusetts Chief Justice Lemuel Shaw, and more. Two of the essays may be of interest to blasphemy scholars.

The book's first and longest essay is a nice history of the Ranters, a mid-Seventeenth Century English sect. The Ranters were a motley collection of hedonistic religious seekers who professed a variety of doctrines which mostly seemed to center on the idea that there is no such thing as sin and that, therefore, traditional social expectations relating to chastity, sobriety, frugality, etc., need not be observed. It's not surprising that Ranter practices (public drunkenness, vulgarity, and sexual activity) caused extreme consternation in English society. Although blasphemy was prohibited in England prior to the coming of the Ranters, the group was seen as so obnoxious by Parliament that special blasphemy laws were crafted to target the group's doctrines (pp. 33-34). A full history of blasphemy in England would be incomplete with a discussion of the Ranters, and this essay displays an admirable use of primary sources and engaging prose. I haven't compared whether or how much this essay adds to the information on the Ranters provided in Levy's other books on blasphemy.

Another essay "Harvard University Press, et al., v. A Book", is something of an odd duck. Essentially, it's a chronicle of the struggles Levy had with Harvard University Press and peer reviewers over whether his books on blasphemy were of sufficient quality to be published. Although initial contracts had been signed between Levy and the Press, the Press and its reviewers did not give a greenlight to the manuscript, which led Levy into a long and enervating (to the reader) attempt to change their minds. He wasn't successful, and the books had to be taken elsewhere. Unfortunately, Levy doesn't come across in the best light here, as his constant back-and-forth with editors and peer reviewers makes him seem defensive, bitter, and stubborn. Anyone who has had experience dealing with the peer review process can understand how exasperating it can sometimes be, but this essay would have been better off remaining in a diary than in a collection of essays. The main area of dispute between Levy and his reviewers centered on his work on blasphemy as it relates to the trial of Jesus, so only scholars specifically interested in that particular issue might have any reason to seek out this essay.

Remarks on International Blasphemy Rights Day (2010)

On Thursday, I delivered introductory remarks for the International Blasphemy Rights Day event sponsored by the Centre for Inquiry at the 2010 Atheist Alliance International/Humanist Canada North American Convention. That event, and the convention as a whole, was interesting, educational, and simply a lot of fun. I want to thank the organizers of the event for inviting me and putting on a great show. Here is the draft text of the remarks I gave at the IBRD event:

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Thank you all for coming to this special event in recognition of International Blasphemy Rights Day.

Blasphemy is a topic that often lays dormant for years, until suddenly sprouting into public view—a few weeks ago there was the Florida preacher who wanted to burn the Koran, before that the Danish Muhammad cartoons, and going back further the uproar of Salman Rushdie’s Satanic Verses. However, blasphemy as a purely religious concept, and the peaceful give-and-take between so-called blasphemous speech and its inevitable condemnation by religious leaders is a phenomenon that fits easily within the free speech tradition of a healthy democratic society.

However, International Blasphemy Rights Day marks the dismay that advocates of freedom of speech, thought, and religion feel all over the globe about the curious persistence of anti-blasphemy legislation.

When I started studying blasphemy laws several years ago, I thought they were true legal anachronisms, obsolete pieces of legislation that stuck around, more or less harmlessly, because legislatures were simply too lazy to repeal them. And sometimes this is true—Canada, for example, still has a law on the books against “blasphemous libel”, but it hasn’t been used successfully by the government since the 1930s.

However, old laws, including old blasphemy laws, don’t always stay dead. England’s common law ban on blasphemy was inert for 55 years before leading to a conviction in the late 1970s, and was invoked (fortunately unsuccessfully) by Muslim activists in the late 1980s against the publishers of Salman Rushdie’s book and then just a few years ago against the stage production Jerry Springer: The Opera . Ireland’s ban remained unused for 141 years before an unsuccessful prosecution against a newspaper in 1996—and just last year, the Irish Parliament passed a new ban on blasphemy. Pakistan provides an even more startling example, as religious minorities are often targeted by domestic blasphemy laws that provide support and rhetorical ammunition to the vigilante-style murder of alleged blasphemers.

Perhaps the greatest threat the West faces, however, is the old wine of blasphemy being poured into a new glass and given a different name. These new laws, although different in concept and focus, often replicate the effects of blasphemy laws. Worse, courts and the general public seem to think they’re necessary if multiculturalism is to flourish. Inevitably, however, they simply cause more conflict as religious groups have a new means to express their frustration over speech they don’t like. In Australia, they’re called “religious vilification” laws and have led to court cases between Christians and Muslims; in Canada, they’re called “religious hate propaganda” laws and have led to magazines being taken in front of human rights commissions; in the United Nations, they’re called “Defamation of Religions” resolutions, and have been the basis of several successful resolutions before the General Assembly.

In other words, there is a global trend of anti-blasphemy laws being given new vigor by being re-packaged. In many countries around the world, the threat of being prosecuted under blasphemy laws or their modern-day counterparts is a real one—and atheists, humanists, and freethinkers can easily become victims.

The main idea I want to leave you with is that the promise of the Enlightenment and Modernity has certainly not yet been fulfilled in this area. Laws against blasphemy remain a genuine threat to the ideals of secularism and free speech, and this is the reality we should recognize on International Blasphemy Rights Day.

"When Multiculturalism Doesn't Work"

The Globe and Mail had this interesting article on Friday on the topic of religious accommodation in Quebec, a province where conflicts between minority religious groups and the government have been especially acute.

Although I'm sympathetic to the argument that religions shouldn't receive "special rights" or "special exemptions" from generally applicable laws, I tend to believe in the doctrine of reasonable accommodation for two main reasons: (1) legislation will always tend to accord with the religious beliefs of the majority of the population (e.g., mainstream Christians in Canada rarely need religious accommodation) and (2) forcing individuals to choose between sincerely held religious beliefs and participation in civic society (schools, employment, etc.) is unconscionable. Thus, I think Sikh police officers should be able to wear turbans on duty, Orthodox Jews should be accorded flexibility on work holidays, etc., assuming of course that in each case no undue hardships would be created.

I would naturally extend this principle to apply to similar sincerely held beliefs of a secular nature (e.g., vegetarianism, pacifism, and others).

Three Arrests in Plot to Attack "Blasphemous" Newspaper

Several media outlets, including the Winnipeg Free Press, are reporting that police in Norway have arrested three men on suspicion they were planning to attack the offices of Jyllands-Posten, the Danish newspaper responsible for printing the famous Muhammed cartoons.

American Muslim Magazine on Blasphemy and Free Speech

The Volokh Conspiracy has this post about a statement signed by several prominent American and Canadian Muslims about recent blasphemy controversies and the importance of freedom of speech.

Danish Mohammad Cartoons to Be Reprinted in Book

CNN is reporting that the globally controversial Danish Mohammad cartoons will be included in a new book by Flemming Rose, the culture editor of the newspaper (Jyllands-Posten) that originally printed them. The book is to be titled "The Tyranny of Silence" and will published on September 30.

British Men Arrested for Burning Koran

Several news reports, including this one from the BBC, have reported the arrest in England of six men for burning copies of the Koran and then posting a video of the incident to YouTube. Interesting, the reports all state the men have been charged with inciting racial hatred instead of the country's new offense of inciting religious hatred (a recently created offense designed to replace the now-abolished common law offense of blasphemous libel).

International Blasphemy Rights Day and the AAI/HC North American Convention

September 30 is International Blasphemy Rights Day, and a special event is being held (sponsored by the Center for Free Inquiry) in Montreal that evening to kick off the Atheist Alliance International/Humanist Canada North American Convention, Atheists Without Borders. I'll be speaking briefly at that event, and then delivering a workshop the next day (Friday, October 1) on The Curious Persistence of Blasphemy Laws and Their Modern-Day Counterparts.

"The Satanic Verses"

Salman Rushdie, The Satanic Verses (1988).

The Satanic Verses is probably the most famous "blasphemous" book of the latter-half of the Twentieth Century. The controversy over the novel made its author, Salman Rushdie, famous well beyond the literary world. The novel is very much in the "magical realism" vein, as divine/supernatural phenomena and quirky coincidences occur frequently, sometimes noticed and remarked upon by everyday people and sometimes not. At its core the story is about two men born in India, one who takes on the characteristics of the Archangel Gabriel and the other the characteristics of Satan. Themes include the effects of colonization (specifically, England on India) both in terms of society and in terms of the inner psyche of the colonized.

Although most of the book is set in the modern age, the chapters that created such a furor are set during the lifetime of Muhammed. The founder of Islam is given the name "Mahound" in the book, which is a contemptuous name deriving from Medieval Christian literature. The "Satanic Verses" of the title refers to a real-world historical controversy (one apparently rarely given credibility among theologians today): did Muhammed once proclaim that there were more Gods than Allah in order to derive temporary worldly benefits, and then recant once his power base was more secure? The "Satanic Verses", in other words, are verses from the Koran that can be viewed as having a pagan influence. In Rushdie's story, Mahound recites the verses after a spiritual revelation from a being whom he thinks is Gabriel; but after Mahound changes his mind, he says that the supposed divine revelations were a trick sent by the devil. The implication here and elsewhere, then, is that Mahound is simply stating as "divine revelation" whatever happens to be convenient at the time. In one passage, for example, Mahound's scribe (responsible for writing down Mahound's words in what would become the Koran) changes the words and even writes down the opposite out of spite, and Mahound doesn't even notice. The story can thus be read to call into question the entire validity of the Koran.

I lack the training to comment on the book's literary, historical, or theological merits. Purely as a novel, I found it moderately interesting but not exceptional. If nothing else, The Satanic Verses is a testament to the fact that, even in the age of television and computers, literature can still shake the world.

"Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia"

Peter Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia, (rev. ed.) (Brisbane: Angus & Robertson, 1974).

Coleman's book, though written decades ago, is still one of the best sources for information on the early history of blasphemy in Australia. Chapter Four, "The Blasphemers", discusses a handful of prosecutions starting as early as 1871 and as recently as 1919.

The 1871 case involved the prosecution of a street preacher named Lorando Jones for giving a talk in a public park in which he denied the divinity of Christ and the divine inspiration of the Bible. Although Jones was convicted and spent some weeks in jail, Coleman states that "the case made the idea of prosecuting people for blasphemy so unpopular that it was largely responsible for finally killing the idea of blasphemy as a crime." (p. 65)

After a few pages devoted to the government campaign to suppress a freethinker magazine named Liberator (using laws other blasphemy, such as Sunday laws), the chapter goes on to discuss the Australian Post-Master General's vendetta against an Italian newspaper ("L'Asino") for publishing caricatures of God and a joint prosecution by the Post Office and the police in the State of Victoria against a Communist newspaper ("Ross's Magazine") for publishing a satire of what would happen if Bolsheviks took over Heaven. According to Coleman, this latter prosecution "is the last in which a Government instrumentality has taken action against a publication for its blasphemy." (p. 74)

I can't independently verify that statement, but no other cases have come to my attention either. Given the dearth of research on blasphemy laws in Australian history, Coleman's book is still worth tracking down.

* Note: This post is about the 1974 revised edition of the original 1963 book. I've seen some indications online that another edition was released in 2000 with slightly different subtitle.

Canadian Man Arrested on Charges of Witchcraft

A man in Brampton, Ontario, was arrested on Wednesday for practicing witchcraft and allegedly defrauding people who paid him to solve their problems. The National Post has a short report of the arrest.

I've always found fascinating the existence of prohibitions on witchcraft and fortune-telling in the Criminal Code, as they create some interesting issues around religious freedom, the nature of faith, and fraud. An excellent survey of Canadian caselaw on the subject can be found in Bob Tarantino's Under Arrest: Canadian Laws You Won't Believe and after I finish my dissertation on blasphemy I'd like to address the issue.

French Senate Passes Burqa Ban

The Associated Press is reporting that the French Senate approved the ban on burqas (face-covering veils) recently passed by the National Assembly (the lower level of the legislature). The Senate vote was a startling (to me, at least) 246-1. Before coming into effect, the bill will be referred to a special council to ensure it accords with the constitution.

Recent Blasphemy Controversies

Although the Dove World Outreach Center has discontinued its plans to hold "International Burn a Koran Day," controversies over blasphemy continue.

* Queensland University of Technology in Australia has suspended a lawyer for smoking a cigarette rolled with a combination of pages from the Koran and the Bible. (Religion Clause Blog).

* Justice Breyer of the United States Supreme Court was apparently unsure whether burning the Koran is protected by the First Amendment to the United States Constitution (Religion Clause Blog), but then decided it is. (Volokh Conspiracy)

* An advertising standards organization in the U.K. has rejected an ad for being offensive to Catholics. The advertisement showed a pregnant nun eating ice cream with the tag line "Immaculately conceived . . . Ice Cream is Our Religion." (Volokh Conspiracy)

* The New Jersey Transit authority has fired an employee for burning pages from the Koran. (Religion Clause Blog)

"Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record"

I'm happy to report that my article Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record has been accepted for publication in the Drexel Law Review. The article uses unreported blasphemy prosecutions in Canada as a case study on the advantages of newspaper research.

A draft of the article is available on SSRN, and here is the abstract:

"Judicial opinions selected for inclusion in case law reporters are only a small fraction of the universe of legal materials that may provide insight into the history of how legal concepts work in practice. This article examines a neglected source of information: newspaper archives, many of which are becoming available in full-text electronic databases. This article argues that newspapers are a valuable supplement and corrective to legal research performed through traditional means. It includes a test case of how research on a discrete legal topic (Canada's prohibition on blasphemous libel) turns up very different results in newspaper archives compared to case reporters."

"Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions"

The Annual Survey of International and Comparative Law has published my article Canadian Blasphemy Law in Context: Press, Legislative, and Public Reactions. A free PDF is available here.

This is the abstract:

"Blasphemy law doesn't operate in a vacuum: journalists, social crusaders, and legislative reformists help shape what "blasphemy" means in any given society. This article attempts to place blasphemy in context by examining newspaper editorials, the works of anti-blasphemy campaigns, and a failed attempt to repeal Canada's blasphemy law in the House of Commons."

"Blasphemy in Irish Law"

Paul O'Higgins, Blasphemy in Irish Law, 23 Modern L. Rev. 151 (1960)

Last year's passage of a new blasphemy law in Ireland presents a good opportunity to study the history of the offense in that country. O'Higgins' article, published in 1960, discusses several interesting facets of Irish blasphemy law: (1) How the Constitution's exemption of blasphemy laws from the free speech guarantee ties into "the Christian inspiration of the whole" document; (2) How various Irish statutes on blasphemy and related crimes stretch back hundreds of years; (3) How common law prosecutions for blasphemy in the 18th and 19th century indicate that authorities, at that time, had not adopted the matter/manner distinction later created by the House of Lords in Bowman; and (4) How it is difficult, due to a paucity of subsequent cases and disagreement over whether Bowman binds Ireland, to decide what the current common law crime of blasphemy is. Thus, O'Higgins states that "[t]he conclusion is then forced upon us that there is considerable doubt as to the meaning of the term 'blasphemous' as used in the Irish Constitution and in modern Irish legislation." (p. 166)

Controversy Over "International Burn a Koran Day"

This story has been all over the news, but in case you missed it, here's a link (via the Toronto Star) about the Dove World Outreach Center in Gainsville, Florida, a small congregation that has received global attention for their planned "Burn a Koran Day." The idea has received condemnation from religious leaders and even military officers because it will obviously be seen as a blasphemous and hateful act by Muslims all over the world.

The story is an interesting example of the robust constitutional guarantees of freedom of speech and religion operative in the United States, as I haven't heard a single suggestion in the American media that law enforcement has the right or obligation to prevent the plan from going through. In other countries, including where I live in Canada, I imagine that blasphemy or religious vilification/hate propaganda laws would be quickly invoked.

"Drawing the Line--Balancing Religious Vilification Laws and Freedom of Speech"

Geoff Holland, Drawing the Line--Balancing Religious Vilification Laws and Freedom of Speech, 8 UTS L. Rev. 9 (2006).

This interesting article examines the hypothetical question "Would publication of the [Danish Mohammed] cartoons in Australia have amounted to religious vilification under current legislation?" (p. 9) The article begins with a good summary of the cartoons and their publication in Denmark, and includes the interesting fact that Denmark had (and has) a blasphemy statute that prosecutors decided not to use against the cartoons. Here's the statute: "Any person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community in this country shall be liable to imprisonment for any term not exceeding four months."

The article concludes that the key to answering the hypothetical is whether publication in Australia of the cartoons took part in the context of a debate over the cartoons or the phenomenon of self-censorship. If published as part of such a debate, then there would be a credible argument that the cartoons were published "reasonabl[y] and in good faith" under Australian religious vilification laws. However, the author argues, "the publication of the cartoons, removed from the context of the public debate on self-censorship that occurred in Denmark, would not likely meet the requisite standard of reasonableness." (p. 18)

"Religious Vilification Laws: Quelling Fires of Hatred?"

Dermot Feenan, Religious Vilification Laws: Quelling Fires of Hatred?, 31 Alternative L.J. 153 (2006).

Feenan's paper adds to the debate over the religious vilification laws which exist in three Australian states. With a primary focus on Victoria's Racial and Religious Tolerance Act 2001 and the subsequent Catch the Fire Ministries case, the article suggests that religious vilification laws may be over-broad. As Feenan explains,

"The danger in framing religious vilification as a wrong lies partly in the fact that it may capture views which represent legitimate disagreements about the appropriateness of different religious beliefs or practices. Arguably, the inclusion in the Act of the words 'serious contempt for, or revulsion or severe ridicule' of another person or class of persons on the ground of religious belief or activity may be infringed by the trenchant condemnation of beliefs or practices on which people may reasonably take opposing views." (p. 156)

The article provides a brief summary of some international human rights instruments and cases on balancing freedom of expression with other values. It also mentions England's recent "religious hatred" law and suggests that it is narrower in scope than Victoria's religious vilification laws because it limits itself to "threatening" words or behaviour. (p. 157)

"The Constitutional (In)validity of Religious Vilification Laws: Implications for Their Interpretation"

Nicholas Aroney, The Constitutional (In)validity of Religious Vilification Laws: Implications for Their Interpretation, 34 Fed. L. Rev. 287 (2006)

This article is a balanced, nuanced discussion of whether the religious vilification laws enacted in three Australian States (Victoria, Queensland, and Tasmania) comport with the Commonwealth Constitution under the High Court's doctrine of "implied freedom of political communication." The article states, as a threshold matter, that "[t]here is no a priori reason . . . why speech that happens to be about religious matters cannot simultaneously be characterised as political communication for the purposes of the implied freedom." (p. 303) However, Aroney argues that the religious vilification laws at issue are probably constitutional on their face because they contain three key limitations: (1) the incitement of hatred, contempt, ridicule, etc. must, under the terms of the statutes, be serious or severe; (2) the laws are aimed at hatred of persons, not criticism of beliefs; and (3) the statutes include special "good faith" exemptions for artistic, scientific, religious, or other types of communication. (pp. 313-314) The article is careful to distinguish between a judgment on the constitutionality of religious vilification laws and a judgment on whether such laws are good policy, and notes that statutes that may be constitutional on their face will not necessarily be constitutional as applied in the real world.

"Quotations from newspaper Spartakus entitled 'Sandwiches'"

"Department of Agriculture--Quotations from newspaper Spartakus entitled 'Sandwiches'", RG13, Justice, Series A-2, Volume 2012, File 1933-255, Access Code 32 (Library and Archives Canada)

One of the curious things I discovered while researching R. v. St. Martin (discussed in the previous post) was that the impugned publication in that case, "Spartakus", was the subject of an archived file originating from the Ministry of Agriculture (!) in 1933. It turns out that on the inside cover of "Spartakus" was a statement "Entered according to Act of Parliament in 1932, in the office of the Minister of Agriculture and Statistics, at Ottawa." This led to a confused Minister of Agriculture receiving complaints about the allegedly blasphemous nature of the publication, and therefore contacting the Department of Justice for help. The Department of Justice contacted the Commissioner of Patents and ascertained that no registration of copyright had been filed with that office, and then wrote back to the Ministry of Agriculture to say that, although the notice in Spartakus appeared to be misleading, no registration requirement appeared to exist. Two documents from the file have been scanned in below.