"The Trial and Death of Socrates"

Plato, The Trial and Death of Socrates (translation of Apology, Crito, and Phaedo by Benjamin Jowett) (introduction by Emma Woolerton) (Arcturus Publishing Ltd. 2010)

Next to the trial of Jesus, the trial of Socrates is probably the most famous blasphemy trial in Western history. In Apology, Plato provides an account of Socrates' statement in his own defense. The exact nature of the charges are unclear, but Socrates sums them up generally as consisting of allegations that he is "a doer of evil, and corrupter of the youth, and [that] he does not believe in the gods of the state, and has other new divinities of his own." (p. 17) In true Socratic fashion, there is little in the way of direct rebuttal and much in the way of rhetorical extravagance that addresses the charges in a discursive fashion. Socrates states that the charges are motivated by malice against him for his success in exposing the follies of many men who considered themselves wise. (p. 14) He cross-examines one of his accusers, a man named Meletus, and demonstrates an inconsistency in Meletus accusing him simultaneously of being an atheist and of believing in new divinities (p. 21). To his accuser Anytus, Socrates states that he would rather die now than be released on the condition that he stop teaching: "Wherefore, O men of Athens, I say to you, do as Anytus bids or not as Anytus bids, and either acquit me or not; but whatever you do, know that I shall never alter my ways, not even if I have to die many times." (p. 25) Socrates goes on to state that Athenians will regret it if he is convicted, and concludes by stating "I do believe that there are gods, and in a far higher sense than that in which any of my accusers believe in them." (p. 31) After the jury condemns Socrates to death, he proceeds to expound on why death is a good rather than an evil. In Crito, Socrates explains why he would rather submit to the laws of the state than escape, and in Phaedo Socrates further explains his views on death and on his belief in the immortality of the soul; neither has anything pertinent to the blasphemy charges.

From an historical perspective, of course, we have no way of knowing for certain how much of Socrates' statement in the Apology actually took place and how much is Plato's creation of what could have or should have been said. From a legal perspective, the charges and facts underlying them are so vague in the Apology that little analysis is possible. If nothing else, however, Plato's work serves as a useful reminder that the concept of blasphemy existed long before the three major monotheistic religions became fully formed.

"The Curious Persistence of Blasphemy" Now Published

My article "The Curious Persistence of Blasphemy" has now been published by the Florida Journal of International Law.

500 Lashes for Australian Convicted of Blasphemy in Saudi Arabia

CNN reported today that an Australian has been sentenced to 500 lashes and a year in prison in Saudi Arabia for allegedly blaspheming against Mohammed's relatives. The Australian, a 45-year-old man named Mansor Almaribe, was in Medina on a pilgramage when arrested last month. According to the report, it's unclear what Almaribe, a Muslim, said that led to the arrest. His case is now under appeal, and the Australian government has pressed for leniency. According to the article, blasphemy is a potential capital crime in Saudi Arabia.

"Blaspheming in the Suburbs: The Offence of Blasphemy in a Free Speech Regime"

Helen Pringle, Blaspheming in the Suburbs: The Offence of Blasphemy in a Free Speech Regime (available here).

Pringle's paper begins with a description of the arrest of an Australian Gold Coast teenager in 2008 for wearing a heavy metal band's t-shirt which depicted a nun masturbating with a crucifix and the words "Jesus is a cunt". Noting that the teen was charged with a summary offence prohibiting "offensive, obscene, indecent or abusive language", Pringle uses the arrest as a springboard for discussing how Australian authorities are often more comfortable using obscenity laws than blasphemy laws in jurisdictions where both exist:

"Where ostensibly blasphemous acts are the subject of prosecution in Australia, they are charged not as blasphemy but instead under the rubric of offensive conduct or language. That is, in both legal and cultural terms, blasphemy has generally been absorbed into a more 'neutral' category of obscenity or offensiveness." (p. 8)

Pringle goes on to discuss the scattered and mostly forgotten references to blasphemy in various Commonwealth and State statutory provisions and uses original newspaper research to demonstrate that blasphemy prosecutions in Australia took place as early as 1835 and into the 1920s, thus improving on Coleman's standard work. According to Pringle, during this time period, "instead of being a crime that was rarely prosecuted, [blasphemy] was frequently and successfully prosecuted, although the penalties were relatively light." (p. 14)

"Religious Freedom, Democracy, and International Human Rights"

John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory Int'l L. Rev. 583 (2009).

Witte and Green's article is a general overview of some of the religious freedom issues facing nation-states around the globe. Noting that democracy and human rights guarantees are flourishing in theory, the article cautions that "religion and freedom do not yet coincide in many countries, however rosy their new constitutional claims are as to religious rights and freedoms for all." (p. 584). The article briefly examines the question of whether religious freedom is a universal good or an artefact of Western/Christian hegemony (it favors the former view). A summary of the various international law documents on the subject of religious freedom is given, including the two Islamic declarations of human rights. In a key section, the article identifies three main issues countries are grappling with on the religious freedom front: 1) Proselytism/Evangelization, 2) Conversion & Apostasy, and 3) Blasphemy and "Defamation of Religions". The article works well as a survey/introduction to this area of law, but is too general to be of much use to scholars in the field.

French Newspaper Firebombed for Mocking Islamic Law

Several sources are reporting that the offices of a satirical French newspaper named Charlie Hebdo were largely destroyed by arson last week. The paper was about to publish a controversial special issue mocking Islamic law in Libya and Tunisia which had as its cover a figure wearing a turban saying "100 lashes if you don't die laughing!" In addition, reports indicate that the paper's website was hacked.

"The Permissibility of Incitement to Religious Hatred Offenses Under European Convention Principles"

Susannah C. Vance, The Permissibility of Incitement to Religious Hatred Offenses Under European Convention Principles, 14 Transnat'l L. & Contemp. Probs. 201 (2004).

Vance's article is a useful examination of the history of France's existing and England's (at the time) proposed statutes on religious hatred. The validity of each is analyzed under European Court of Human Rights jurisprudence, with particular attention paid to the Court's two decisions upholding domestic blasphemy statutes: Wingrove v. United Kingdom (1997) and Otto-Preminger Institute v. Austria (1994). Vance concludes that both country's religious hatred statutes would likely be upheld if challenged under Article 10 (the free speech guarantee) of the European Convention (p. 226).

In the course of this analysis, Vance makes several interesting points regarding the relationship between blasphemy and religious hatred. She notes:

"A law criminalizing religious hate speech may be analogized either to the racial incitement provisions contained in Britain's and France's civil rights legislation, or to blasphemy laws enacted to protect a country's established church." (p. 229)

"When contrasted with blasphemy laws, religious incitement laws of the sort enacted in France and contemplated in Britain appear better adapted to protecting the religious feelings of others. First, blasphemy laws in their traditional form are designed to protect the integrity of doctrine (typically the doctrine of the established church) from defilement; their primary focus is not on insult to individual adherents of the faith. Second, and more importantly, blasphemy laws are radically under-inclusive in their coverage; they protect only the established religion." (p. 237)

U.S. Federal District Court Upholds Regulation of Fortune Telling

Howard Friedman's Religion Clause Blog reports that the U.S. Federal District Court for the District of Eastern Virginia has upheld zoning, tax, and permit restrictions on fortune telling against constitutional challenges premised on freedom of religion, speech, and more. In the case, Moore-King v. County of Chesterfield Virginia, the Court rejected the plaintiff's freedom of religion argument, holding that the plaintiff was not engaged in religious practices. [this post is based solely on Friedman's, as I do not currently have access to Lexis to read the case itself]

English Cafe Owner Ordered to Stop Displaying Bible Verses

Police in Lancashire, England ordered the owner of a cafe to stop displaying Bible verses following a complaint about "insulting" and "homophobic" material. The cafe's owner displayed the Bible verses on a t.v. screen using DVDs that cycle through each verse of the New Testament in order; it is unclear which specific verses are the cause of the complaint. In ordering the display to stop, police stated that they were relying on Section 5 of the Public Order Act, which prohibits:

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

After consulting with his attorney, the cafe's owner decided to continue displaying the Bible verses. Section 5 of the Public Order Act has been the subject of widespread condemnation by reformists in England on the ground that it has been abused by police to censor the legitimate exercise of free speech.

H/T: Religion Clause Blog

Sparse Posting

Apologies once again to the sparse posting--still adjusting to the new demands of fatherhood!

"Blasphemy, Cultural Divergence and Legal Relativism"

Clive Unsworth, Blasphemy, Cultural Divergence and Legal Relativism, 58 Mod. L. Rev. 658 (1995).

Unsworth's article examines the place of blasphemy in a country (England) that has undergone profound shifts in its cultural and legal landscape since the offence originally became part of the common law. The article explores whether "blasphemy" is still a relevant legal concept in a country that is becoming increasingly multicultural and less tied to a shared vision of morality as embodied in an established church. The link between blasphemy, sedition, and nationalism are explored at some length. For example, Unsworth argues that "[t]his affinity with sedition underlines the function of the law of blasphemy in securing a politico-religious governmental order, an institutional and symbolic church-state unity which is still of fundamental importance in investing the state with a transcendant . . . form of moral authority in its dealings with transgression." (p. 664) The article goes on to examine three cases that revealed the place of blasphemy in England: the Lemon case, the Rushdie affair, and the proceedings over the censorship of the film Visions of Ecstasy. The article is written in a style that could be called "high academic", and thus, some passages are difficult to follow, but here and there some very interesting points are made.

Polish "Death Metal" Singer Cleared of "Offending Religious Feelings" Charges

A "death metal" singer named Adam Darski, who uses the stage name Nergal (pictured), has been found not guilty of charges of "offending religious feelings" by a Polish judge. During a 2007 concert, Nergal tore up a Bible, threw the pages to the audience, and asked them to burn them. During the trial, some audience members testified that their religious feelings were not offended despite the fact that they are Christians. In finding Nergal not guilty, the presiding judge stated that the singer's actions were a form of art.

HatTip: Religion Clause Blog

Egyptian Arrested for Insulting Islam on Facebook

A 23-year-old Egyptian man has been arrested in Cairo for postings on Facebook that allegedly insulted Islam and Mohammed, and may be charged under a law that penalizes "insulting religion."

HatTip: Religion Clause Blog

"Debating the Danish Cartoons: Civil Rights or Civil Power?"

Cindy Holder, Debating the Danish Cartoons: Civil Rights or Civil Power?, 55 U.N.B. L.J. 179 (2006).

In its annual forum on a topic of legal and political interest, the University of New Brunswick Law Journal chose in 2006 the topic of the Danish Muhammed cartoons. One of the contributions was this brief article by Cindy Holder, which took the interesting position of arguing that the debate should not be over whether the Danish newspaper Jyllands-Posten should have the right to run the cartoons, but whether the newspaper was right to run the cartoons (p. 184-85). According to Holder, "having the right to free speech doesn't mean never having to say you're sorry" (p. 182) and the newspaper's decision to run the cartoon and refusal to apologize for it demonstrate that "what is actually being defended in this case is not civil liberty but civil privilege. In particular, what is at issue is the privilege to exclude and define Muslims." (p. 179). Holder argues that the cartoon controversy is "about the power of Westerners to speak as they wish about Muslims. That power includes the ability to exclude Muslims from determinations of what may be said, both by excluding them from the conversation and by being indifferent to their responses." (p. 183) She concludes by stating that "[a]t the heart of this controversy is an implicit assertion that Westerners can and should speak with impunity about Islam and its adherents."

Moving the ground of the controversy from the legal/political question of whether the newspapers should have had the right to publish the cartoons to a discussion of the appropriateness of the cartoons certainly provides an interesting new angle to address the matter. From my reading of various contributions to the debate, the reason these cartoons and the accompanying protests have become such a topic of conversation is not because they raise a traditional civil liberties issue (should the newspaper have the free speech right to run the cartoons) but because some seem them as raising an even more fundamental question: are Western values of free speech, freedom of religion, and equality compatible with Muslim religious values or is violence the inevitable result of a "clash of civilizations"? The Danish Muhammed cartoons arose in the context of a growing fear in some segments of Danish society (reflecting wider fears elsewhere in Europe) that core Enlightenment values would diminish in the face of an increasing population of Muslim citizens.

Blasphemy in "A History of the Criminal Law of England"

James Fitzjames Stephen, A History of the Criminal Law of England (London: MacMillan & Co., 1883) (Vol. II) at 470-476.

Stephen's discussion of blasphemous libel in his three-volume history of English criminal law occupies only a handful of pages, but it remains of interest due to his taking a position counter to the mainstream evolution of blasphemy law. After a very brief summary of some notable blasphemous libel cases such as Sedley, Taylor, Woolston, Hetherington, and more, Stephen turns his focus to discussing Coleridge's famous holding in the Pooley case that the criminal law should concern itself only with the style (tone/language) in which blasphemous statements are made, and not with their substance (in terms of orthodoxy). Under Coleridge's style/substance or manner/matter distinction, a temperate and carefully-phrased denial of Christ's divinity or in the validity of the Trinity would not have been cognizable by the criminal law. Although after Coleridge this view quickly became the leading doctrine of blasphemous libel in English law, Stephen takes a dissenting view: "[T]he weight of authority appears to me to be opposed to it. The cases cited all proceed upon the plain principle that the public importance of the Christian religion is so great that no one is to be allowed to deny its truth. The history of the offence confirms this view." (p. 475) Stephen goes on to argue that "To say that the crime lies in the manner and not in the matter appears to me to be an attempt to evade and explain away a law which has no doubt ceased to be in harmony with the temper of the times. . . . The[r]e are certainly strong reasons why the law should be altered. . . . [B]ut they are no reasons at all for saying that the law is not that which a long and uniform course of decisions has declared it to be." (p. 475-76) Although Coleridge's view has become settled doctrine now for well over a century, Stephen's 1883 book amasses several cases to support his view.

"Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan--Controversial Origins, Design Defects, and Free Speech Implications"

Osama Siddique & Zahra Hayat, Unholy Speech and Holy Laws: Blasphemy Laws in Pakistan--Controversial Origins, Design Defects, and Free Speech Implications, 17 Minn. J. Int'l L. 303 (2008).

This long, thorough article examines the history of blasphemy laws in Pakistan, focussing primarily on the new offences created under the regime of dictator Genera Zia-ul-Haq which continue to have baneful effects on religious freedom in the country. The sense one gets reading Siddique's and Hayat's article is that (1) blasphemy laws are applied in a harsh and discriminatory manner by Pakistan's trial courts, which are composed of judges who are poorly-educated, biased, and unable to withstand community pressures; (2) trial-level blasphemy convictions are almost always reversed or upheld but with a more lenient sentence by appellate courts; and (3) perhaps the greatest risk of being accused of blasphemy is not what happens in court, but what happens out of it, as vigilante beatings and murders of alleged blasphemers (and those who attempt to reform the law) are commonplace. The article states that "the blasphemy laws, in their current form, are an instance of legislation inherently open to abuse, operating in an environment that is at times unfortunately conducive to that abuse." (p. 206) An interesting discussion of the Islamization of Pakistan places the blasphemy laws in context, while an analysis of conceptually-similar laws in other countries prompts an analysis of whether Pakistan's laws could be justified as a variation on hate speech.

Human Rights Committee Addresses Blasphemy in ICCPR

Several outlets are reporting that the United Nations Human Rights Committee has released a new collection of comments on the International Covenant on Civil and Political Rights. In paragraph 48 of the comments, the Committee addresses blasphemy laws. With my explanations interpolated, it states that:

"Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant ["Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law"]. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3 [allowing restrictions on freedom of expression only to protect national security, public health and morals, or the rights and reputations of others] as well as such articles as 2, 5, 17, 18 and 26 [guaranteeing equal protection, religious freedom, and more]. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith."

It is unclear to my mind whether this comment is significant. The Committee's broad statement against blasphemy laws is counter-balanced by reference to a notable exception (Article 20, Para. 2) that incorporates the exact rationale that modern supporters often give for the existence of blasphemy legislation: the need to prevent religious hatred and offence.

Moving (Way) Down South

I'm ecstatic to report that yesterday I accepted an offer to become a Lecturer at the University of Southern Queensland Faculty of Business and Law beginning early next year.

"Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers"

Stephen Ranalow, Bearing a Constitutional Cross: Examining Blasphemy and the Judicial Role in Corway v. Independent Newspapers, 3 Trinity C. L. Rev. 95 (2000)

Ranalow's article examines the 1999 Corway decision, in which the Supreme Court of Ireland determined that it could not give effect to the reference to blasphemy in the Constitution because the crime had not been adequately defined. Ranalow notes that the provision "is something of a constitutional oddity" (p. 95), but states that "the decision marks both a significant and unjustified break from the Supreme Court's creative tradition." (p. 96) Ranalow argues that major English cases like Ramsay and Foote and Bowman shifted the purpose of blasphemy prohibitions from a religious one (protecting the established church) to a secular one (preventing religious offence), and that those cases and other sources in Irish history are sufficient to allow the court to legitimately hold that the crime of blasphemy has an understood meaning in Irish common law. Thus, Ranalow states that "the Supreme Court's refusal to clarify blasphemy on the grounds of uncertainty is unconvincing." (p. 100) He attributes the Court's decision to a reluctance to become involved in a political controversy that would involve expenditure of limited capital for no practical benefit. So although Ranalow does not necessarily support the existence of blasphemy laws, he concludes that "the Supreme Court in Corway had both the means and the obligation to define this crime."

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

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

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

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

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

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

"Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law"

Kathryn A. O'Brien, Comment, Ireland's Secular Revolution: The Waning Influence of the Catholic Church and the Future of Ireland's Blasphemy Law, 18 Conn. J. Int'l L. 395 (2002)

O'Brien's article explores the influence of the Catholic Church in Ireland and discusses the legal status of blasphemy. For the latter, she notes that prior to the 1996 Corway case (in which the country's Supreme Court held that the constitutional reference to blasphemy could not be enforced in the absence of legislation), there had only been three known blasphemy prosecutions since 1703. Although recent events (the passage of a blasphemy statute) have dated the blasphemy discussion, the article does provide a brief overview of the subject in English history, European Union law, and the Corway decision. Other articles are more thorough on each of these subjects, so of more interest to most readers is the examination of events pointing to an increasingly secular society in Ireland. O'Brien discusses various provisions of the Irish Constitution referencing religion, and then notes that the country has become more liberal in areas like divorce (a 1995 referendum allowed it for the first time), gay and lesbian rights (homosexuality was decriminalized in 1993), and (to a lesser degree) abortion (judicially sanctioned in very rare circumstances). According to O'Brien, each of these trends occured despite strong opposition from the Catholic Church.

Controversy Over Islamic Prayers at Ontario School

The Toronto Star has published multiple articles recently over a controversial practice at Valley Park Middle School in Toronto. The school has set aside the cafeteria after lunch on Fridays to be used for Islamic prayers. The prayers take place during normal school hours, but are not delivered or supervised by school employees. Supporters argue that is a reasonable accommodation for Valley Park's large Muslim student population (which used to leave school grounds for Friday prayers), while critics argue that public schools must remain secular and that the prayers reinforce sex discrimination, as female students sit behind male students, and menstruating girls are expected to observe but not participate.

"Blasphemy" (Columbia Law Review Note)

Student Note, Blasphemy, 70 Colum. L. Rev 694 (1970).

This is a thorough, well-researched history of blasphemy in England and the United States, written with the goal of examining whether State-level blasphemy laws are constitutional under the First Amendment. In order to answer this question, the anonymous author attempts to set forth the original and current purposes of blasphemy prohibitions to decide whether those purposes are religious or secular. Several prominent English blasphemy cases are discussed, including Taylor's Case, Woolston, Ramsay, Cowan, and Gott (this article was written prior to the prosecution of Kirkup's The Love That Dares to Speak Its Name in the late 70s). After examining these cases, the author concludes that "English history provides no single determinative rationale for blasphemy laws. ... [T]he cases illustrate reliance on almost every conceivable principle." (p. 702). Next, the author examines a handful of major American blasphemy cases, such as Ruggles, Updegraph, Chandler, Kneeland, and Mockus. The final section of the article is a long and detailed discussion of how blasphemy laws should fare under the Free Exercise, Establishment, and Free Speech clauses of the Constitution. This section is probably of less use to modern scholars, given how Supreme Court doctrine in these areas has changed in the past 40 years. In a brief conclusion, the author writes that "Blasphemy laws are one of the last remnants of an established church, and in protecting the religious from verbal affront, they significantly curtail the freedom of expression of others." (p. 733)

"Divided by God: America's Church-State Problem and What We Should Do About It"

Noah Feldman, Divided by God: America's Church-State Problem and What We Should Do About It (NY: Farrar, Straus and Giroux, 2005)

Feldman's 2005 book is a concise, readable history of the relationship between church and state in American politics. Although Feldman skims past some of the legal intricacies that might interest legal scholars, on the whole this is a well-researched synthesis of various facets of American constitutional and religious history. It would serve as an excellent introduction for lay-persons or as a refresher for experts. In terms of original insights, Feldman persuasively argues that modern American politics in this area can be viewed as a struggle between two groups with very different ideological committments: "values evangelicals" who seek to ground civic life in a (non-particularist) understanding of religiously-shared values, and "legal secularists" who endeavour to remove religious considerations from public life. Feldman classes church-state issues in two different categories: those involving the allocation of public funds for religious purposes, and those involving purely symbolic government endorsement of religion. Through an analysis of Supreme Court caselaw, he shows that government funding issues have received increasingly favorable treatment by the courts, while a fairly strong condemnation remains of religious endorsement. According to Feldman, this is exactly the opposite situation envisioned by the Framers, who were extremely concerned about taxpayers' consciences but unconcerned with non-coercive endorsement. Thus, in order to put an end to our seemingly never-ending battle between values evangelicals and legal secularists, Feldman suggests that the former should denounce government funding initiatives and the latter should accept non-coercive government endorsement of religious symbols and precepts. Although I find this solution somewhat naive and impractical given the respective sides' entrenched committments, Feldman's book is a worthy contribution to the field.

Teen Soccer Referee Expelled for Wearing Hijab in Quebec

Several media outlets have reported the recent story of a Quebec girl forced to quit her volunteer position as a soccer referee due to a Quebec soccer federation/FIFA rule prohibiting hijabs on the field. The decision has been defended as necessary due to a general rule prohibiting participants from displaying commercial, political, and religious messages.

In my opinion, this decision is unwarranted and discriminatory. A reasonable accommodation could easily be made in this case to allow this girl and other young Muslim females to enjoy soccer without being forced to choose between it and their sincere religious beliefs. To my mind, FIFA's interest in enforcing common attire rules is outweighed by society's interest in fostering religious inclusion, much like Sikh members of the RCMP are allowed to wear turbans while on duty.I don't know if public accommodation laws are applicable to this soccer federation, but if so, this girl would seem to have a strong claim.

Wilders Acquitted of Inciting Religious Hatred

A court in the Netherlands has acquitted MP Geert Wilders of charges of inciting hatred and religious discrimination. In several comments and a film, Wilders portrayed Muslims and Islamic values as a threat to the democratic, secular Netherlands. Although the court condemned many of Wilders' statements, it ruled that they criticized Islam as a religion, not Muslims as a group and that the statements were made in the context of a public debate over Islam's place in the Netherlands. (Source: Radio Netherlands Worldwide)

"Beyond Case Reporters: Using Newspapers to Supplement the Legal Historical Record (A Case Study of Blasphemous LIbel)

My article Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record (A Case Study of Blasphemous Libel) has now been published by the Drexel Law Review.

Thank You for Your Patience

Having a newborn at home has slowed down my updates to Legal Heresy, so I appreciate my readers' patience in the matter. I hope to have some new posts soon, and please feel free to e-mail me with news stories or interesting scholarly articles.

Quebec Daycares Face New Rules Around Secular Content

According to the Toronto Star, a controversy has recently arisen in the province of Quebec over new regulations that forbid religious instruction in publicly-subsidized daycares.

Blasphemy Conviction Nets Algerian Man Five Years in Prison

According to Religion Clause Blog, Algeria has sentenced a Christian man named Siagh Krimo to five years in prison for violating a provision of the country's criminal code which forbids acts that "insult the prophet and any of the messengers of God, or denigrate the creed and precepts of Islam[.]" It is unclear exactly what Krimo did or said to merit the conviction, but a neighbor accused him of Christian proselytizing and defaming Muhammad.

Album Cover Draws Fire From Heritage Minister

According to a short article in today's Globe and Mail, a Toronto-based record label named Black Box has been criticized by the Federal Heritage Minister for distributing an album cover "that is clearly designed to offend a group of Canadians based on their faith . . ." The album, Holy Shit, is the product of a Vancouver band, and its cover "satirically mixes Christian motifs with references to excrement." The record label received over thirteen thousand dollars from a funding agency named FACTOR.

Dutch Politician in Toronto Calls for Ban on Muslim Immigration

Last Monday's National Post carried a story about a speech given before a Toronto audience on the subject of Islam and immigration by Dutch politician Geert Wilders. According to the article, Wilders, a controversial figure, stated that "Our Western culture is far superior to Islamic culture . . . and only once we are convinced of this will be able to defend our civilization." Wilders went on to call for the suspension of immigration of Muslims into Western countries, including Canada. The article also carried comments from a band of protestors outside the speech, who labelled Wilders' comments hate speech.

U.S. Military Faced With Requests for Atheist Chaplains

Last week, the New York Times published a fascinating article on a push by atheist and agnostic members of the U.S. military for the creation of chaplains who represent their beliefs. According to the article, the U.S. military has over 3,000 chaplains representing Christians, Jews, Muslims, and Buddhists. "Atheist leaders acknowledge the seeming contradiction of non-believers seeking to become chaplains or receive recognition from the chaplain corps. But they say they believe the imprimatur of the chaplaincy will embolden atheists who worry about being ostracized for their worldviews." As of yet, the military has not granted the requests.

Moses Spoof Ad Rejected by Toronto Transit

According to The National Post, the Toronto Transit Commission recently rejected a proposed advertisement that depicted Moses exiting a vehicle and "inadvertently flashing pixilated genitals" in a spoof of the famous Britney Spears incident. The advertisement was created for the Toronto Jewish Film Festival, and accounts seem to differ on exactly who decided not to run the ad.

Famed Qur'an Burning Pastor Temporarily Jailed in Dearborn, Michigan

According to The Volokh Conspiracy, Pastor Terry Jones, head of the Florida-based Dove World Outreach Center, was temporarily jailed in Dearborn, Michigan, after refusing to pay a $ 1 bond set by a state judge after Jones and an ally were found to have been likely to breach the peace if they carried out plans to hold a protest in front of a Dearborn mosque. Soon after, both men agreed to post bond and were released from jail but have been ordered by the court not to "go[] to the mosque or adjacent property for three years."

Washburn Law Prof Proposes Ban on Qur'an Burning

Liaquat Ali Khan, a professor at the Washburn University School of Law in Topeka, Kansas, proposed yesterday that Congress ban desecration of the Qur'an. In a short article for MWC News, Khan argues that the recent Qur'an burning by Pastor Terry Jones "is the continuation of a Western medieval custom of assaulting the dignity of Islam" and that such acts are not constitutionally protected under the First Amendment.

(originally noticed at Volokh Conspiracy)

Serrano's "Piss Christ" Vandalized in French Gallery

According to a opinion piece in today's Salon, vandals attacked and nearly destroyed Andres Serrano's famous artwork "Piss Christ" in an Avignon, France gallery. The gallery has decided to reopen the exhibit, and continues to display the photo even in its damaged condition.

This is not the first time that vandals have attacked "Piss Christ"--in the mid-1990s, the artwork was attacked in an Australian gallery.

Vigilante Murder of Exonerated "Blasphemer" in Pakistan

Yesterday, CNN published the tragic but (from what I've read elsewhere) not unusual story of Mohamed Imran, a man accused of blasphemy who was murdered by vigilantes even after being cleared by the legal system.

Acquittal in Switzerland of Three Charged With Plans to Burn Bible & Koran

Three Hindu men who were arrested by Swiss authorities after announcing their plans to burn copies of the Bible and Koran have been acquitted. (see Religion Clause Blog)

Arrests Made Under New French Law Banning Veils

Religion Clause Blog and other sources are reporting that France's new law prohibiting the wearing of full-face veils in public has come into effect. According to the report, police arrested 59 women on Saturday who wore the veil to protest the law.

"Not to Judge But to Save: The Development of the Law of Blasphemy"

I.D. Leigh, Not to Judge But to Save: The Development of the Law of Blasphemy, 8 Cambrian Law Review 56 (1977).

Published shortly after a successful blasphemy prosecution was concluded against James Kirkup's poem "The Love That Dares to Speak Its Name", Leigh's article provides a nice historical analysis of blasphemy in English law from its earliest days as an ecclesiastical offense to its (then) present status as a crime that most observers had thought a relic of a bygone age until its successful use against Kirkup's poem in what became known as the Gay News case. Leigh begins his history with an interesting statement:

"The history of religious persecution in England cannot simply be dismissed as the product of narrow-mindedness and intolerance: to do so is to severely misjudge the men, and indeed the societies, in question. In fact the motives were more complicated (and sincere) than are immediately apparent in a twentieth century where the emotive phrases of 'freedom of belief' and 'freedom of speech' seem so fundamental." (p. 57)

Leigh goes on to talk about why religious persecution takes place, drawing on the works of Frederick Pollock. He then shifts to a discussion of the crime of heresy, and explains how blasphemy evolved from it, before providing a relatively thorough (and occasionally rambling) discussion of how English common law courts interpreted blasphemy beginning in the 1600s.

When evaluating blasphemy's status as a crime, Leigh says that it is a difficult question to determine "[w]hether religious feelings can ever be worth protecting at the cost of another person's liberty[.]" (p. 69) However, Leigh writes that "[e]ven if one decides that the law of blasphemy should not be abolished wholesale, there still remains a substantial need for reform", in part because the English law of blasphemy applied only to criticisms of the Church of England and not other faiths. (p. 69)

Violence & Protests in Afghanistan Over Koran Burning

Several sources, including the New York Times, are reporting on protests in Afghanistan over a Florida pastor's burning of the Koran. Violence in Afghanistan related to the protests have led to the deaths of 24 people.

Violence Follows Burning of Koran

Last week, Terry Jones, pastor of the Dove World Outreach Center in Gainesville, Florida, held a six hour mock trial of the Koran and then reportedly burned a copy after finding it "guilty." (see Religion Clause Blog for more)

Today, at least 12 people were reportedly killed during an attack on a U.N. building in Afghanistan following a protest against the burning. (see here for more)

National Post Interview with New Quebec Archbishop

Last week the National Post published a short but interesting interview with the new archbishop of the Archdiocese of Quebec, Gérald Lacroix. The focus of the interview was on whether/how the Catholic Church in Quebec could increase regular attendance. Lacroix responded that he didn't believe increasing numbers was the goal, but that instead his focus was on reaching out to and enriching the lives of the faithful.

"The Law of Criminal Libel"

John King, The Law of Criminal Libel (Toronto: Carswell, 1912) at pp. 14-26.

King's 1912 book on criminal libel in Canada devotes several pages to blasphemous libel. King relies heavily on British caselaw, especially the 1883 case Ramsey & Foote, which contained Coleridge's classic statement that "if the decencies of controversy are observed, even the fundamentals of religion may be attacked without a person being guilty of blasphemous libel." King also discusses Stephen's critique of that view and his argument that even a tasteful denial of Christ's divinity could be punished under British common law.

Looking at Canada's Criminal Code in light of the debate, King concludes that "[t]he declaration in the Code, as to what is not a blasphemous libel, represents the more tolerant view of the law, comparatively speaking, as expounded in the latests leading English cases." (p. 16) Interestingly, King states that "no case was to be found in the books of Ontario of an indictment for blasphemy . . . and we believe this is true of the other provinces." (p. 24) This overlooks the R. v. Pelletier case reported in 1901 (6 R.L.(n.s.) 116 Q.c.). Although King believed there were no reported prosecutions for blasphemy in Canada available for discussion, he does devote substantial space to two cases that dealt with blasphemy in a more indirect fashion: Pringle v. Napanee (1878) and Boucher v. Shewan (1864).

"Blasphemy" in the Encyclopedia of Religion, Second Edition

Lindsay Jones, Editor in Chief, Encyclopedia of Religion (2nd ed.) (Farmington Hills, MI: Thomson Gale, 2005) at pp. 968-977.

The second edition of the Encyclopedia of Religion contains three articles under the general entry "Blasphemy." The three articles are "Blasphemy: Jewish Concept", "Blasphemy: Christian Concept", and "Blasphemy: Islamic Concept".

The first article, "Blasphemy: Jewish Concept", is written by Daniel J. Lasker. According to the article, some actions which would be deemed blasphemous in most religions, like arguing with God, are actually part and parcel of Jewish history and are considered legitimate. However, Lasker identifies four actions that could be considered blasphemous: "(1) cursing God and God's name; (2) using God's name in vain, pronouncing it illicitly, or destroying its written form; (3) saying inappropriate things about God; and (4) acting in a manner that would bring disrepute upon the God of Israel (and, therefore, upon the people of Israel)." (p. 968) Lasker devotes several paragraphs to the meaning of cursing God, while the other three acts receive a smaller amount of space. Interestingly, Lasker notes that, "although the Bible prescribes capital punishment for a number of crimes [including blasphemy], rabbinic law was instrumental in limiting the possibility of judicial executions" by imposing stringent requirements on proof and other restrictions. (p. 969) Another interesting feature of blasphemy in Judaism, one that sets it apart from most other religions, is the idea that pronouncing or writing the true name of God is blasphemous--and, as Lasker notes, various alternatives or euphemisms tend to be imbued with holy status over time, and become themselves forbidden.

The section on blasphemy in Christianity was written by Leonard Levy in 1987, and includes material that appear in his two books on blasphemy. Levy traces Christianity's prohibition on blasphemy to Exodus 22:28 ("You shall not revile God") and the punishment of death by stoning to Leviticus 24:16. An interesting discussion in the article is the relationship between heresy and blasphemy. For much of Christian history, according to Levy, the two terms were largely interchangeable. Over time, distinctions began to be drawn between blasphemy, which was a more narrow sin which required cursing or mocking of God directly, and heresy, which was a broader term that could encompass divergent doctrinal views. Levy notes that "Protestants during the Reformation had to reinvent the crime of blasphemy on the fiction that it was distinguishable from heresy. Because 'heresy' was the Catholic description for Protestantism, Protestant leaders tended to choke on word heretic and preferred to describe as 'blasphemy' anything they disliked or disagreed with, just as the church had used 'heresy.'" (p. 973) Levy goes on to trace how the concept of blasphemy evolved from a religious sin into a secular crime in seventeenth century England. The rest of the article is a concise distillation of the legal history of blasphemy in England and the United States, drawn all or in part from Levy's books.

The article on blasphemy in Islam was written by Carl Ernst in 1987. According to Ernst, blasphemy in Islam includes insulting Muhammad or any part of the divine revelation. Ernst notes that "[t]here is no exact equivalent to blasphemy in the Islamic tradition," (975) but that prohibitions on apostasy or "infidelity" ("the deliberate rejection of God and revelation") are comparable. The article briefly discusses the concept of blasphemy in early Islam before moving on to blasphemy in Islamic law, theology, and Sufi mysticism.

"Church-State Relations in Canada (1604-1685)"

Cornelius Jaenan, Church-State Relations in Canada (1604-1685), Volume 34, CCHA Study Sessions, pp. 9-28 (1967).

This article from 1967 argues that there is a dearth of research into church-state relations during the New France era of Canadian history. After a brief and somewhat unfocused overview, it then discusses ten aspects of this history that are said to warrant further investigation. Each aspect receives a few paragraphs of attention, and the article concludes with an impressive list of sources in footnotes. The topics discussed are:

1) The role of clergy in colonial administration.

2) Some cases which tested the power of the clergy to interfere in state matters.

3) The problem of "precedence" (standing in the community according to rank, honorifics, & prestige). Jaenan notes that "[i]n the late 1640's there was already interminable wrangling over precedence in processions, distribution of blessed bread, receipt of the communion, disposition of soldiers at church parades, and in placement of pews."

4) Naming of a Bishop.

5) "Frenchification of the Indians". Jaenan states that "[t]he missionaries, as cultural ambassadors, often failed to distinguish between Europeanization and evangelization, between cultural assimilation and Christianization."

6) The role of religious rivalry between Catholic sects.

7) The treatment of Protestants. Adherents of "the pretended Reformed religion" received hostile treatment in the colony, and lacked the right to practice their faith freely.

8) Tithing and Parochial Organization

9) Fur Trading & Brandy Trafficking.

10) Morality. Jaenan states that "The state supported the church in matters of censorship of reading matter; observance of holy days; attendance at mass; control of rumblings of witchcraft, crimes of violence, blasphemy, and seditious talk; combatting begging, prostitution and secret assemblies. The general impression one obtains of the colonists is that while independent and self-assertive, they were generally devout and much attached to various pious practices."

In conclusion, the author argues that "New France was neither a tyranny nor a theocracy" and that "[a]lthough the church affected everyday undertakings, and it was associated with every major decision to be made, it did not overshadow, in practice, environmental materialistic considerations and influences."

Select Committee on Religious Offences in England and Wales: First Report (2003)

Select Committee on Religious Offences in England and Wales: First Report (2003)

This document was the result of proposals in England to create a new offence of "incitement to religious hatred" and abolish the common law crime of blasphemy shortly after the attacks of September 11, 2001. It examines whether blasphemy should remain a crime in England and whether a new "incitement to religious hatred" crime should be enacted. As each of these things have already occurred, this document is now primarily of historical value only. This post focuses only on the sections of the report directly relevant to blasphemy.

Chapter 1 explains that the Select Committee was charged with answering two questions: (1) "Should existing religious offences (notably blasphemy) be amended or abolished?" and (2) "Should a new offence of incitement to religious hatred be created and, if so how should the offense be defined?" The Committee notes that blasphemy and incitement to religious hatred have different targets; "blasphemy concerns sacred entities or beliefs while incitement relates to people or groups who belong to a particular faith." The Committee states that it received more than five hundred written submissions on the two questions and held several public meetings to take evidence.

Chapter 2 is the Committee's attempt to provide context for the report. It notes special concern by the Muslim community that they are not protected by England's blasphemy law, nor are they protected by prohibitions on racist speech like Sikhs and Jews are.

Chapter 3, "The Law as it Stands", begins with a short summary of the common law offence of blasphemous libel in England. According to the Committee, "Two elements of the law are clear. First, the offence is one of strict liability. . . . Secondly, the offence protects only the Church of England." The chapter goes on to discuss several statutes dating from the 1800s that prohibit various types of "crimes against religion."

Chapter 4 explores three options for dealing with the law of blasphemy: leaving it as it stands, repealing it without replacement, or repealing it and replacing it with a new statute "which would cover all religious faiths and beliefs and the rejection of religion[, with t]he objects of the protection [being] faiths, beliefs, etc., not the people or groups who hold to them." On the first option, leaving the law as it stands, the Committee notes that "no [social] consensus seems to exist as to the direction in which the balance [between religious and secular elements of society] should be changed, if indeed change it must." The Committee notes that substantial segments of society believes that "the law on blasphemy offers much more than legal protection; they believe it to be an expression of the fabric of our society [and] of the values on which our relationships with one another depend[.]" In its discussion of the second option, repealing the law without replacement, the Committee notes several defects with the law: that it's a crime of strict liability, that it's discriminatory insofar as it only protects the Church of England, and that, if used, it would probably be struck down under free speech guarantees of domestic and international rights guarantees. On the third and final option, the Committee discusses the difficulties involved in trying to draft a new blasphemy offense that avoids each of these problems.

Chapters 5-9 discuss the following topics: the Ecclesiastical Courts Jurisdiction Act, 1860; the proposed offence of "incitement to religious hatred"; freedom of expression; hate crimes; and "aggravation."

Chapter 10 provides the Committee's conclusions. Unfortunately, the Committee was unable to come to a consensus on most of the crucial questions it discussed. The Committee notes that "we believe there should be a degree of protection of faith, but there is no consensus among us on the precise form that it might take. We also agree that in any further legislation the protection should be equally available to all faiths, through both the civil and the criminal law."

Another Pakistani Official Assassinated Over Blasphemy

Pakistan's Minister of Minority Affairs, Shabaz Bhatti, was assassinated on Wednesday. The Taliban claimed responsibility and stated that the murder was prompted by Bhatti's support for moderating the country's laws against blasphemy. See Religion Clause Blog and CNN for more.

Saguenay Mayor Fights for Prayer at Council Meetings

On Friday, National Post reported that the mayor of Saguenay, Quebec, is seeking donations from the public in order to fund his appeal of a human rights tribunal decision that forbade him from opening council meetings with prayer and displaying a crucifix in the council meeting room. Mayor Jean Tremblay, described in the article as a devout Catholic, has opened a toll-free telephone line for donations.

Austrian Woman Convicted of Blasphemy

According to reports, a woman has been convicted under a provision of the Austrian penal code that prohibits "vilifying religious teachings" for statements made during a lecture in which she allegedly intimated that the prophet Muhammed was a "pedophile" for having married and consummated a relationship with a child bride. The court fined the woman 480 Euros, and she plans to appeal. See Volokh Conspiracy and The Corner for more.

UPDATE (Jan. 18, 2012): The defendant, an activist named Elisabeth Sabaditsch-Wolff, lost her appeal before the Provincial Appellate Court in Vienna. Sabaditsch-Wolff has said she will further appeal to the European Court for Human Rights. A lengthy post with full details is on Volokh Conspiracy.

"Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America"

Steven Waldman, Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America (New York: Random House, 2008).

Waldman's book is a balanced, thoughtful, and well-written discussion of the "founding fathers" of the U.S. Constitution and how their diverse and fascinating views on religious freedom have often been skewed by one side or another in the culture wars. Founding Faith alternates chapters between a clear, concise story of the evolution of religious freedom in colonial America with descriptions of the spiritual journeys and beliefs of Washington, Adams, Jefferson, Madison, and Franklin. Waldman argues convincingly that the founding fathers were not atheists or deists; they believed in a God, believed that God often interceded in worldly affairs, and believed that religion could be a force for good. On the other hand, Waldman makes it clear that the founding fathers were far from orthodox Christians, were often accused of being irreligious, and were quite cognizant of the dangers of government and religion becoming intertwined.

Waldman shows how easy it can be to take a quote out of context here or there to prove almost anything about their beliefs, but a careful, nuanced view often complicates the talking points used by separationists and accomodationists. Further, as Waldman notes, "In the eighteenth century, it did not follow that one's piety determined one's views about separation of church and state. Being pro-religion didn't mean one was anti-separation. And being pro-separation didn't mean one was anti-God. In fact, the culture wars have so warped our sense of history that we typically have a very limited understanding of how we came to have religious liberty." (p. x)

Perhaps most importantly, Waldman shows how the "original intent" of the framers is both difficult to discern and of questionable value in resolving modern problems. "It's time we stopped using the Founders as historical conversation stoppers--as in I'm right and you can tell, because the Founding Fathers agree with me. Instead, we must pick up the argument that they began and do as they instructed--use our reason to determine our views." (p. 196)

An impressive book, one definitely worth picking up for anyone interested in the history of religious freedom in the United States.

Annotated Criminal Code Commentary on Canada's Blasphemy Provision

This brief post summarizes what some of the authors of annotated versions of Canada's Criminal Code have had to say about the country's statutory prohibition on blasphemous libel.

* Arthur W. Rogers, Tremeear's Annoated Criminal Code, 1929 (Calgary: Burroughs & Company, Ltd) (4th ed. 1929) at 222. Rogers notes that this provision first appeared in Section 170 of the original 1892 Criminal Code. The rest of his annotation consists of statements drawn from traditional English legal maxims on blasphemy law, citing cases such as Bradlaugh, Ramsay & Foote, and Bowman: "Publications which in an indecent and malicious spirit assail and asperse the truth of Christianity or of the Scriptures in language calculated and intended to shock the feelings and outrage the belief of mankind are punishable as blasphemous libels. But if the decencies of controversies are observed even the fundamentals of religion may be attacked without the right [sic] of being guilty of blasphemous libel. No justification of a blasphemous libel can be pleaded nor is argument as to its truth permitted." Citations, without discussion, are also given to some Canadian authorities such as R. v. Kinler and the E.J. Murphy's annotation to R. v. Sterry.

* A.E. Popple, Snow's Criminal Code of Canada (Toronto: Carswell) (5th edition 1939). Popple's annotation is much shorter than Rogers. He states that the definition of the offense is given in Rahard and Gott, and provides the same quotation as the first sentence of the rule quoted above. Popple also states that "The offence may be committed by written matter as well as by spoken words", citing Gott.

* Edward L. Greenspan & Marc Rosenberg, Martin's Annual Criminal Code 2006 (Aurora, Ont.: 2006). This annotation cross-references the blasphemous libel offense with the offenses of defamatory and seditious libel. It notes that "the term 'blasphemous libel' is not defined in the section" and concludes that "[t]his rather archaic section, if used, would, in all likelihood, be challenged under the Charter."

* Alan D. Gold, The Practitioner's Criminal Code, 2007 Edition (Markham, Ont.: 2006). Gold notes that "[t]his is a straight indictable offense. An accused can elect the mode of trial." (citing s. 536(2)). He also states that "[i]f ever prosecuted this section would be unlikely to survive a Charter challenge."

"The Curious Persistence of Blasphemy" in the Florida Journal of International Law

I'm happy to report that my article The Curious Persistence of Blasphemy has been accepted for publication in the Florida Journal of International Law.

Death Sentence Handed Down for Pakistani Blasphemer

A court in Pakistan's Punjab province has handed down a death sentence for a man accused of having blasphemed against the companions of the Prophet Muhammad. See Religion Clause Blog for more.

"Preventing New Cartoon Crisis"

Robert O. Freedman, Preventing New Cartoon Crisis, (Baltimore) Jewish Times (5 May 2006).

This short op-ed contains perhaps the most surprising and nearsighted response to the Danish Cartoon Controversy I've seen in the Western press. According to Freedman, "to prevent a future crisis of this type from erupting, what is needed is a 'code of conduct' for the newspapers and other media in both the Western and Muslim worlds. All governments must agree that the negative depiction of religion is 'out of bounds,' and penalties should be imposed on those who violate the code of conduct." In order to distinguish between "legitimate criticism" and "negative depiction of . . . religion", Freedman then proposes "the creation of an International Religious Court, composed of Christian, Muslim and Jewish clergymen . . . . Anyone feeling that his or her religion was insulted could appeal to the International Religious Court for a ruling on the matter, and the court would then determine whether a penalty should be invoked." Freedman then goes on to explain that the government with authority over the wrongdoer would have the responsibility to carry out the International Religious Court's punishment.

Although Freedman acknowledges the difficulty in finding a single Christian, Jew, and Muslim to represent the vast diversity within these particular religions on such a court, he overlooks several obvious problems. What about all the other religions in the world--wouldn't they deserve representation? What about non-religious individuals? How would such a court, composed purely of clergymen, reconcile international human rights guarantees of freedom of speech with the alleged "negative depiction of religion"? How could domestic nation states implement their findings without running afoul of domestic constitutional guarantees of freedom of speech? Is "negative depiction of religion" an intelligible and worthy standard to begin with? Although Freedman's desire to prevent another controversy is understandable, the problems with this proposal multiply the more one thinks about it.

"Prophets, Cartoons, and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions"

Joshua Foster, Prophets, Cartoons, and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions, 48 J. Cath. Leg. Stud. 19 (2009)

Foster's article offers an analysis the several U.N. resolutions condemning the "defamation of religions" as well a nice background of the events leading up to and following the Danish Cartoon Controversy. The article argues that the defamation of religion resolutions fail to protect freedom of speech and are "an overly paternalistic response" to the problem of religiously offensive communications. (p. 24) After an over-long summary of the U.N.'s general approach to human rights, the article discusses domestic American constitutional law around the First Amendment and concludes that it provides a far better model for the international community to adopt as it "is far more receptive to free speech than Europe and other countries around the world" (p. 47) and is more consonant with notions of human dignity.

Witches & Fortune Tellers Face New Taxes in Romania

Romania has added the occupation "witch" to the tax code and plans to levy a 16 percent income tax on activities performed for commercial gain such as tarot readings, curses, and blessings. See Religion Dispatches and Religion Clause Blog for more.

"Apostasy and Blasphemy in Pakistan"

David F. Forte, Apostasy and Blasphemy in Pakistan, 10 Conn. J. Int'l L. 27 (1994).

Forte's article begins with an excellent background into the political and constitutional history of Pakistan in the twentieth century which makes it clear just how integral Islam is to the legal apparatus of the government. Forte then moves on to explain the relationship between apostasy and blasphemy in Pakistan, noting that "blasphemy serves as a surrogate [for the crime of apostasy] in suppressing those who dissent from Islam by word or deed." (p. 49) Finally, the article discusses at length the problem of private violence and vigilante "justice" against alleged blasphemers, the results of which are often sudden, shocking, and cruel. Although this article is now over fifteen years old, it doesn't seem at all dated, as the problems of blasphemy law in Pakistan remain very real.

Quebec Legislature Excludes Kirpans

During a hearing by a committee of Quebec's legislature on reasonable accommodations for religious minorities, members of the Sikh faith wearing kirpans were excluded from entering the building. Kirpans are ceremonial daggers worn by orthodox Sikhs and have been the cause of controversy in Canada in recent years. However, an increasing number of public spaces (schools, trains, and Federal buildings) have accommodated the religious practice. See Religion Clause Blog for more.

Malawi Releases Three Convicted of Witchcraft

According to the Toronto Star, a human rights group in Malawi has raised enough money to pay the fines and win the release of three women who had been convicted and sentenced to twelve months hard labor for practicing witchcraft. The group is working to earn enough to secure the release of 50 other women in similar circumstances.

Pakistani Lawyers Support Strict Blasphemy Laws

Tuesday's New York Times carries an interesting article on how the "Zia generation" of lawyers in Pakistan strongly support a robust application of the country's blasphemy laws. Despite being relatively well-educated "elites", the lawyers are allied with Pakistan's religious conservatives on the issue.

"Les fees on soif: Feminist, Iconoclastic or Blasphemous?"

Maria-Suzette Fernandes-Dias, Les fees ont soif: Feminist, Iconoclastic or Blasphemous?, Chapter Six of Negotiating the Sacred II: Blasphemy and Sacrilege in the Arts (Canberra, ANU E Press 2008) (available here)

This article discuss the controversy over the short-lived ban of the printed version of the play Les fees ont soif ("The Fairies Are Thirsty") in Quebec in 1978 on the grounds that it was blasphemous. The play, a feminist critique of patriarchy and its mythmaking, features "the Virgin Mary, the Mother and the Whore as a satirical counterpart to the Holy Trinity of the Father, the Son and the Holy Spirit, to depict how patriarchal tradition has incarcerated women in stereotypical roles of submission." (para. 7) According to Fernandes-Dias, the play "engages in vulgarising discussion about sexuality, incest and rape, [and] even involves the Holy Virgin in doing so." (para. 17) The article states that a private prosecution was brought against the play by four Christian organizations, and the groups succeeded in gaining an injunction against the sale of printed copies for a brief time before the injunction was overturned (the exact procedural history of the injunction and subsequent appeals is not clear in the article).

Fernades-Dias' article is a non-legal exploration of the play's themes and its role in the history of late 1970s Quebec feminism. She states that the play "is considered as a prominent marker of the post-Quiet Revolution assertion of the feminine identity and the social rupture from religious dogmatism in Quebec." (para. 6) Apparently the play remains popular and has been staged at least as recently as 2005 and is reprinted in several anthologies. Fernandes-Dias concludes with an interesting exploration as to why the play is no longer controversial: "a community that was already divided and in a state of transition gradually lost the importance it accorded to religion as a factor of social cohesiveness. Therefore, an artistic creation that was once considered as morally and spiritually objectionable . . . did not shock the Quebecois society anymore." (para. 36).

* Paragraph numbering is approximate; the online version is not paginated or numbered by paragraph.

** The article cites a source I have not previously seen reference to elsewhere: Nancy Huston, 1981, "Blasphemy in 'Nouvelle France' Yesterday and Today", Maledicta vol. 5, no. 2, pp. 163-169.

Blasphemy Reforms in Pakistan Stall, Supporter Assassinated

Political pressure and threatened labor strikes have succeeded in preventing planned reforms to Pakistan's blasphemy law from being introduced. The country's Federal Minister for Labor and Religious Affairs stated that the government would not press for any amendments. See Religion Clause Blog for more.

In related news, the governor of Pakistan's Punjab province was assassinated by one of his own bodyguards on Tuesday. The motive for the murder was the governor's support for reforming the blasphemy law and pardoning a Christian woman, Asia Bibi, who faces the death penalty for allegedly insulting Muhammed. See USA Today for more.

"Legal Guardians: Islamic Law, International Law, Human Rights Law, and the Salman Rushdie Affair"

Anthony Chase, Legal Guardians: Islamic Law, International Law, Human Rights Law, and the Salman Rushdie Affair, 11 Am. U. J. Int'l L. & Pol'y 375 (1996)

Chase's article is a thorough analysis of the legitimacy of the fatwa against Salman Rushdie from two perspectives: (1) under international human rights law and (2) under traditional principles of Islamic religious/legal thought. The article and the precise issues discussed are dated, of course, but as the Danish Cartoon Controversy demonstrated, the relationship between freedom of speech and Islamic law remains a relevant concern.

On the first issue, Chase presents a long discussion of freedom of speech under the International Covenant of Civil and Political Rights (to which Iran is a signatory), along with contrasting concerns that Rusdie's book could constitute hate speech or "communal libel." Chase's analysis seems to make clear that the fatwa violates international human rights norms, though he ties his analysis into a discussion of cultural relativism and whether/how non-Muslims can "really understand the anger a book such as The Satanic Verses can cause". (p. 430) I'm not qualified to speak about the legal analysis in this section, but I will note that Chase makes no real attempt to discuss why the international law issue matters from a practical perspective--is/was Iran likely to change its policies to better cohere with international human rights norms?

On the second issue, Chase writes that "[i]t is both condescending and counterproductive to condemn Khomeini's fatwa without even a nod toward understanding its basis in Islamic law and political context and the rage of those who feel they are the whipping post of Western military, political, and cultural power." (p. 393) Chase argues that "Khomeini's position is somewhat novel in the history of the Islamic world and can be criticized from within the Islamic legal tradition." (p. 395) According to Chase, the fatwa is equivocal on exactly what crime it is that Rushdie is alleged to have committed, should not have been issued against someone outside Iran's territorial sovereignty, and represents a break from traditional Islamic understandings of what warrants capital offenses because blasphemy by itself is not punishable by the death penalty. "[I]n order to make Rushdie's death sentence coherent within the constructs of the Islamic legal system, one must proceed in the convoluted manner of first construing Khomeini's fatwa as implicitly accusing Rushdie of blasphemy, which in turn serves as proof of apostasy, for which a sentence of death is admissible." (p. 399) Chase concludes that the fatwa "can now be viewed as somewhat reckless, justifiable only in a rather tortured fashion . . . Khomeini stretched the bounds of the Islamic legal order, making it a mere servant to his political projects". (p. 405)